Palsticrafts, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plasticrafts, Inc. and Donald W. Fox. Case 27-CA- 5273 February 8, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 29, 1977, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. The Administrative Law Judge properly found on the basis of well established doctrine, which is set forth in a number of cases, including The Gates Rubber Company, 182 NLRB 95 (1970), that Respon- dent violated Section 8(a)(1) of the Act by withhold- ing wage increases which would have been granted to employees in the injection molding department and the machine shop but for the moratorium imposed during the pendency of a representation proceeding and subsequent collective-bargaining negotiations.' Respondent also contends that the General Coun- sel's case was directed to the entire bargaining unit of production and maintenance employees and that it was therefore improper to apply a "Gates" violation to the employees in the injection molding department and the machine shop who constitute only a minor portion of the unit. We find no merit in this contention as the complaint alleged that it was through Paul Trout, the supervisor of the employees in those two departments, that Respondent filed to grant wage increases. The Administrative Law Judge properly recom- mended that Respondent's unlawful conduct be remedied by paying the employees in the depart- ments supervised by Trout the wage increases, plus interest, that would normally have been granted them. However, the Administrative Law Judge mis- takenly (1) set the interest rate at 7 percent and (2) recommended "that Respondent's make-whole obli- gation be diminished by offsetting the amount of wage increases granted to employees." As to (I), we shall not state a specific rate as interest should be computed in the manner pre- scribed in Florida Steel Corporation, 231 NLRB 651 234 NLRB No. I11 (1977).2 As to (2), the record shows, and the Administrative Law Judge found, that Respondent "with the acquiescence and approval of the Union . . . [in May 1977] effectuated voluntary wage adjustments" for the foregoing employees. As they are entitled to backpay, with interest, for the period when the wage increases were withheld, namely, November 1976 to May 1977, we shall modify the Administrative Law Judge's remedy by deleting therefrom his provision for an offset of the increases resumed in May 1977. 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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Plasticrafts, Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Substitute the following for paragraph 2(a): "(a) Make whole Victor Cook, Jerry Crow, Donald Fox, James Mason, Doris Rekemeyer, Robert Shaf- er, Duane Taylor, James Walsh, Thomas Warwin, and Dale Williams for any loss of wages, plus interest, they incurred by reason of the suspension of wage increases during the period from November 1976 to May 1977. 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent contends that the Administrative Law Judge erred in not relying on J. J. Newberry Co., Inc. v. N.LR.B., 442 F.2d 897 (C.A. 2, 1971), wherein the court reversed the Board's decision, 183 NLRB 602 (1970), which found that the employer violated the Act by suspending its program for periodic review and failing to grant wage increases because of the union's organizational campaigrn. We respectfully disagree with the court's holding and adhere to our view until such time as the United States Supreme Court has passed on the issue. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, because of the pendency of a representation matter filed pursuant to the provi- sions of Section 9 of the National Labor Relations Act, as amended, or the further pendency of a resulting collective-bargaining obligation on our part arising as a consequence of the representa- tion matter and a Board certification, withhold wage increases which otherwise would be granted to our employees. 762 PLASTICRAFTS, INC. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their choosing, or to engage in other concerted activi- ties for the purpose of collective-bargaining or other mutual aid or protection, or to refrain from any or all such activity except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL make whole the following employees who suffered a loss of wages as a result of our decision to withhold wage increases during the period from November 1976 to May 1977, togeth- er with interest: Victor Cook Jerry Crow Donald Fox James Mason Doris Rekemeyer Robert Shafer Duane Taylor James Walsh Thomas Warwin Dale Williams PLASTICRAFTS, INC. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Denver, Colorado, on August 4, 1977, pursuant to a complaint and notice of hearing issued by the Regional Director of the National Labor Relations Board for Region 27 on May 3, 1977. The complaint is based upon a charge filed on March 3, 1977, by Donald W. Fox, an individual, and alleges violations of Section 8(aX)(1) and (3) of the National Labor Relations Act, as amended, hereinafter called the Act. The parties were accorded full opportunity to call witnesses, to present relevant evidence, and to engage in oral argument. The parties waived oral argument and timely filed briefs with me. Based upon my observation of the witnesses, the entire record in this proceeding, and the briefs of the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Plasticrafts, Inc., hereinafter called Respondent, has been a corporation duly organized under the laws of the State of Colorado, and has main- tained its principal office and place of business at 2800 North Speer Boulevard, Denver, Colorado. During perti- nent times Respondent has engaged at its plants in Denver in the manufacture and sale of plastic products. In the course and conduct of its business operations, Respondent annually purchases and receives goods and materials valued in excess of $50,000 directly from points and places outside the State of Colorado. On the basis of these facts which are not in dispute, I find that, at all times material herein, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that at all times material herein United Rubber, Cork, Linoleum and Plastic Workers, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACtICES A. The Issues The principal issue in this proceeding is whether Respon- dent failed and refused to grant wage increases to employ- ees because the Union had filed a representation petition. In this connection, it is the General Counsel's contention that the principles of The Gates Rubber Company, 182 NLRB 95 (1970), control the instant matter in that, contrary to past practice, Respondent failed to grant periodic wage increases to employees employed in the unit specified as appropriate in the representation petition filed by the Union prior to the time the wage increases would normally have been granted. On the other hand, Respondent contends that, with respect to the unit generally, there was no established practice of granting periodic wage increases to employees but that, rather, such wage increases as had been granted were granted on a merit basis and pursuant to specific approval of the president of Respondent who reviewed all wage recommendations. Moreover, contends Respondent, it acted upon advice of counsel and without animus towards the Union in abstaining from wage increases until the representation question had been resolved. It did so, asserts Respondent, with the specific objective of comply- ing with Board law restricting wage increases during the pendency of a representation matter. B. Pertinent Facts 1. Background facts The principal portion of Respondent's business is devot- ed to the wholesale and retail sale of various types of plastic materials. In addition, Respondent does subcon- tracting work in plastic fabrication; operates a department, designated as a resin specialty department, which makes special castings and applies coatings; and maintains a department devoted to the manufacture of industrial products. Respondent's operation is conducted from four separate locations in the Denver Metropolitan Area. The principal location is the Speer Boulevard location where the molding department, machine shop, and materials mills are situated. A separate warehouse location is maintained in conjunction with which a fabrication tooling department is operated. A large fabrication department is maintained at a third location where industrial products such as skylights are manufactured. At a fourth location is housed 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the resin specialty department and the special skylights department. The work force, which is comprised of the fabricating employees, technical employees, and salesmen, varies from approximately 80 to approximately 90 individ- uals. At the time of the hearing, injection molding had five employees, and the machine shop staff was comprised of three. Thomas H. Cooper is president, general manager, and principal stockholder of Respondent. Larry Johnson is personnel manager and Paul Trout is supervisor of the injection molding department and the machine shop. On December 8, 1976, the Union filed a representation petition in Case 27-RC-5411 seeking to represent a unit of employees at Plasticrafts, Inc., and on February 3, 1977, an election was held in the following described unit: All regular and part-time production and maintenance employees, including shipping and receiving employ- ees, material handler employees, leadmen, drivers and janitorial employees employed by the Employer at its plants located at 2800 North Speer Boulevard, 2494 Blake Street, 2363 Blake Street, and 3383 Fox Street, Denver, Colorado, excluding office clerical employees, professional employees, technical employees, salesmen, guards, and supervisors as defined in the Act. A certification issued on February 11, 1977, designating the Union as the exclusive bargaining representative of the employees comprising the above-described unit. 2. The alleged unlawful conduct a. Wage increases withheld Dale Williams was initially employed on April 21, 1975, in the toolroom under the supervision of Paul Trout. Donald Fox was employed initially on November 24, 1975, as an injection moldmaker. Trout conducted the prehire interview with each employee, and in so doing stated to each applicant that his job performance would be evalu- ated at the end of 30 days of employment and if the evaluation were satisfactory he would receive a raise. Similarly, Trout informed both Williams and Fox that at intervals of approximately 4 months their job performance would again be evaluated and, if the evaluation revealed a satisfactory work performance, a wage increase would be granted. Fox and Williams each received wage increases in January, April, and July, 1976. In connection with these wage increases, Trout had conducted a personal evaluation of the job performance of both Fox and Williams and had found their work acceptable. He conducted no formal interview with either of the employees in connection with his evaluation. Both Fox and Williams, as well as employ- ees Doris Rekemyer and Duane Taylor, were scheduled for job evaluations and wage increases in November 1976. Trout credibly testified that each of the four employees - Williams, Fox, Rekemyer, and Taylor - would have received a favorable job evaluation and would have been I The testimony of Thomas Cooper to the effect that the job performance of Williams, and particularly Fox, would have cast "severe" doubt upon their entitlement to a November 1976 wage adjustment is at odds with the credited testimony of Paul Trout. I do not credit Cooper in this regard for I entitled to a wage increase in mid-November if the Company had not imposed a moratorium on wage in- creases due to the pendency of the representation petition.' Trout's testimony establishes the existence of a departmen- tal policy of periodic wage increases, and the employees did, in fact, receive wage adjustments in 1976 at varying intervals approximating or averaging every 4 months. In October Donald Fox spoke to Dale Williams and asked Williams to check with Trout to determine if their periodic wage increases were due. Williams spoke with Trout, and Trout told Williams that the increases were not due until the middle of November. Through oversight, Trout did not act on the increases for either Fox or Williams, and in late November Williams again spoke to Trout concerning the matter. Trout agreed to look into the matter. Similarly, on December 12, Larry Johnson con- versed with Dale Williams who inquired whether or not a raise would be forthcoming. The conversation transpired after Respondent had received the representation petition which had been filed with the Board by the Union on December 8. A notice of election had been posted. Johnson assured Williams that he would check and let him know. As a result of this conversation, Johnson spoke with Thomas Cooper. In due course a meeting was convened which was attended by Cooper, Johnson, and a representa- tive of the Mountain States Employers' Council. Some members of supervision, including Paul Trout, also attend- ed the meeting. The representative of Mountain States advised that only raises accompanying bona fide promo- tions, reclassification, or completion of the employee probationary period should be granted during the penden- cy of the representation matter. This advice was communi- cated to the various supervisors in Respondent's employ. Johnson also informed Dale Williams of the advice which had been received.2 As a result of this matter, Cooper reached the decision that all merit increases should be withheld until the matter raised by the filing of the representation petition had been resolved. Cooper testified that, in addition to the legal advice he had received with respect to the matter, he was guided in reaching his decision to abstain from granting merit increases or wage adjustments by the content of the notice transmitted by the Regional Office in connection with the representation case. This notice was made avail- able to Respondent by the Region for posting on an employee bulletin board. The notice advised employees of the pendency of the representation petition and, in perti- nent part, defined and specified as conduct which inter- feres with the rights of employees: ..promising or granting promotions, pay raises, or other benefits, to influence an employee's vote by a party capable of carrying out such promises. After being advised of Cooper's decision with respect to the grant of wage increases, Trout again spoke to Williams. He informed Williams that he had been instructed by his superiors that no pay increases would be granted because a am convinced that he substantially overstated the adverse nature and extent of the work errors allegedly attributable to them. 2 The foregoing is based upon the credited and undisputed testimony of Larry Johnson. 764 PLASTICRAFTS, INC. representation petition had been filed. No further wage action was undertaken by Trout with respect to any employee under his supervision. After the February 3, 1977, representation election, Williams again inquired concerning his wage increase, and Trout stated that the Company was still restricted from giving any pay raises. Trout was of the opinion that no raises could be forthcoming until a collective-bargaining agreement had been signed. In this connection, Trout credibly testified that Victor Cook, Jerry Crow, and Robert Shafer, all of whom worked under his supervision and direction, would have been entitled to receive their periodic wage increases in January 1977, and that James Mason, James Walsh, and Thomas Warwin, who also worked under his supervision, would have received their periodic wage increases in February.3 Subsequently, at a regularly scheduled meeting between the Union and employees of Respondent, Joseph Guerrero, International representative of the Union, was informed by employees that the Company was withholding wage in- creases because of the representation matter. Guerrero informed the employees that the Union had no objection to the wage increases and invited the employees to communi- cate this to Thomas Cooper. There is no evidence of record revealing that any employee did make Guerrero's represen- tation known to Cooper. Neither Guerrero nor any official of the Union communicated this concept to the Respon- dent.4 At times pertinent herein, Respondent had no formal operationwide program of wage increases or job evalu- ations. The level of skills in the injection molding depart- ment and the machine shop was the highest of any in the operation, and there was substantial, if not intense, demand industrywide for those skills. For these depart- ments, wage ranges were established as guidelines to fair compensation, and the guidelines were frequently reviewed and in some detail. In conducting his portion of the review, Paul Trout would consider the reliability of each employee under scrutiny, including his or her absentee rate and punctuality in reporting to work, the quality of work being performed by the employee, and his or her ability to conform to prescribed time standards for the performance of work tasks. Trout conducted no oral or written one-on- one job evaluation with the employees under his supervi- sion prior to March 1977, and his evaluations before that time were based on his own observations of the employees in his departments, their work records, and infrequent conversations or dialogue between him and the employees in his department relating to specific work assignments. Trout would transmit to Cooper his conclusions with respect to the qualification of employees interviewed for wage increases. Accordingly, in the injection molding department and the machine shop which Paul Trout 3 James Mason was terminated on May 18, 1977, and Jerry Crow on May 20, 1977. ' The credited testimony of Joseph Gllerrero establishes the essential elements of the foregoing. 5 The employees whom Cooper identified were: Albert W. Besser Daniel L. Bums Kerry A. Carpenter John P. Flint Stanley L. Fuka Randel L. Mclrvin Patrick J. Marlow Dieter Martin Thomas R. Martynow Steve A. Milligan supervised, wage increases were granted with greater frequency than in any other department. Wage ranges were established for other departments but the frequency and the intensity of the review were not as great as in the injection molding department and machine shop. However, with respect to all departments, under the practice that prevailed at pertinent times, Cooper received from the personnel department on a monthly basis a list of all employees, broken down by departments and accompa- nied by entries recording their current wage rate and the date of their last raise. Cooper reviewed these lists for the purpose of assuring fair wage treatment to each employee. Wage increases were recommended either by a leadman, a supervisor, or by Cooper himself pursuant to his review of the monthly list. If the recommendation emanated from a leadman or supervisor, the recommendation, under estab- lished policy, had to be made in writing through the use of a three-part "Speedy Message" which was forwarded to Cooper. Cooper himself would evaluate the recommenda- tion, taking into consideration the wage rates applicable in the subject department, as well as other departments. Cooper would then consult with Lloyd Johnson, personnel manager, before reaching a decision. In some instances before a final determination was made the supervisor of the employee or employees under consideration would again be consulted. In no instance could a wage increase be granted by Johnson without Cooper's written approval. There were in existence at pertinent times no formalized, written criteria to be followed by supervisors in making wage recommendations. However, a supervisor's evalu- ation of an employee's job performance would be taken into consideration, and Cooper would consider also the general wage bracket of the employee under consideration and "the competitive situation" in the department in which the employee worked. The frequency of a supervisory recommendation with respect to increased wages for any given employee or group of employees, other than those under Paul Trout's supervision, followed no distinct or established pattern. The supervisors had received no instructions from Cooper fixing any schedule or practice of periodic reviews. Thomas Cooper credibly testified during the course of the hearing that, based on his then present evaluation and recollection, and subject to the normal approval process then in effect, including his practice of consulting with Larry Johnson and evaluating the personnel file of each employee, 25 separate employees employed in departments other than injection molding and the machine shop would have received wage increases but for his decision to withhold normal merit increases during the pendency of the representation matter.5 Following the certification of the election, and during the course of the collective bargaining which ensued, Cooper, Steve E. Gass Douglas Goodrich Edward Goodrich Robert H. Gottschalk Steven Grimes Michael R. Lehman Richard B. McAfee Michael K. McGovern Cooper also included Carter W. Nyquist William D. Owen David A. Powell Robert A. Rewerts Kenna R. Siers Leo A. Smith Kenneth A. Unrein in this list of eligibles Jerry Crow and Robert Shafer, both of whom worked under Paul Trout's supervision. 765 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in consultation with Johnson and supervision, devised a complete wage scale covering all departments and the various wage levels within each given department. In preparing the wage schedule, each employee in the bar- gaining unit represented by the Union was classified within one of the various levels of the wage scale which was devised. From this wage scale and accompanying supervi- sory evaluations, and considering the time-in-grade of each employee as well as other pertinent evaluative factors, the Cooper-proposed merit raises for each employee in the bargaining unit were projected. The amount of the hourly raise for the employees in the bargaining unit varied. The new wage scale proposed by the Respondent, as a conse- quence of this process, was presented to the Union during the course of bargaining with the understanding that this wage adjustment would not in any manner compromise or be determinative of the schedule of wages ultimately decided upon by virtue of the bargaining process. The Union acquiesced. Competition in job skills and consider- ations relating to the retention of present employees contributed to the upward revision of the wage scale and Respondent's suggestion that the proposed wages be immediately implemented. Conclusions I find that Respondent violated Section 8(aXI) of the Act by withholding wage increases which would have been granted employees in the injection molding department and toolroom, operating under the supervision of Paul Trout, but for the moratorium imposed by management upon periodic wage increases during the time period from December 8 to the first week in May 1977, as found above. I base this finding upon the precedent contained in the Board's Decision in The Gates Rubber Company, 182 NLRB 95 (1970). On the other hand, I find no violation resulted from Respondent's decision to withhold pay increases to the balance of its unit employees pursuant to the same wage moratorium. This conclusion is based upon my comprehension of the reach and intendment of the Board, as enunciated in cases such as The Great Atlantic & Pacific Tea Company, Inc., 192 NLRB 645 (1971), and Heckethorn Manufacturing Co., 208 NLRB 302 (1974). The factual distinction between the two groups of employees is to be drawn on the basis of the existence of a well-defined practice of promised, periodic wage adjustments benefiting the highly skilled employees in the injection molding department and the tool room, and the absence of a similar policy or practice in the balance of Respondent's opera- tion. In its decision in Gates Rubber Company, the Board stated the legal proposition which governs the finding of a violation with respect to the denial of periodic wage increases to employees in injection molding and the machine shop. In Gates, the Board stated: · . . neutrality is not maintained by an announced withholding of a 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. By such conduct the Respondent violated Section 8(aX)(1) and interfered with employee free choice. The record in the instant matter establishes to my satisfac- tion that the policy and practice of periodic wage increases to employees employed in the injection molding depart- ment and the machine shop was designed to maintain wages in the departments at a competitive level in order to assist in the recruitment of skilled employees and their retention. There can be no doubt from the evidence of record that Dale Williams and Donald Fox were initially employed by Paul Trout with the understanding that this policy and practice would be applied to them and that, if their on-going work performance was evaluated as being satisfactory, merit increases would be forthcoming at 4- month intervals. That Trout informed other employees under his supervision of the existence of this policy is inferred and found, both from the implications of Trout's testimony and the small number of employees employed in the two departments under his supervision. It would be anomalous to conclude that in so small a work complement as found in injection molding and the machine shop - approximately eight employees - the existence of a policy and practice intricately tied to the maintenance of competi- tive wage scales would not have become a matter of common notoriety on the part of the employees of those two departments. In any event, both Williams and Fox received increases under the policy in July 1976 and another raise was forthcoming in November. The record testimony of Paul Trout clearly reveals that both Fox and Williams would have received another wage increase retroactively effective from a date certain in November but for Trout's initial oversight followed by the imposition of the wage moratorium in December. There is no credible evidence of record warranting a conclusion that Trout's strongly held conviction that Fox and Williams were otherwise entitled to wage increases would have been countermanded by Cooper. Indeed, in this regard, in conversing during the postpetition December period with Williams and Fox concerning their inquiries relating to their respective wage adjustments, both Johnson and Trout stated, in specific terms, that no increases would be forthcoming because a representation petition had been filed. After the election, in early February, Trout informed Williams and Fox that wage increases would be withheld until the collective-bargaining issue had finally been resolved in a contract. That Trout spoke authoritatively and in accordance with policy of top management is not open to doubt. Accordingly, I conclude that the decision of the Board in Gates Rubber Company, supra, is controlling herein. 766 PLASTICRAFTS, INC. The violation of Section 8(a)(1) of the Act which I find resulted from the decision of Respondent to deny wage increases to Fox and Williams is not, however, limited to the impact of that decision upon those two employees alone. The credited testimony of Trout establishes, in this connection, that other employees, including Victor Cook, James Mason, Robert Shafer, James Walsh, and Thomas Warwin, who were under the direct supervision of Trout, would have received wage increases on specific dates on January and February in the absence of any moratorium on wage increases. Trout concedes that he spoke with some but not all of these employees informing them of the wage moratorium. It is reasonable to infer that each became aware of the reason for the wage moratorium which deprived them of their periodic raises. In view of the skill levels and competitive considerations relating to the em- ployees under Trout's supervision, I conclude and find that, as with Fox and Williams, Trout's judgment as to the entitlement of these employees to a wage increase would have been final and Cooper would not have superimposed a veto. Contrary to Respondent, the absence of antiunion animus or purpose does not serve to insulate Respondent's wage decision from strictures of Section 8(a)(1) of the Act. This is so because, in the circumstances delineated by the instant record, including the existence of a policy of periodic wage increases and declarations of supervision and management with respect to the reason for abstaining from the grant of wage increases, the employees would foreseeably be placed in the position of assuming and inferring that some responsibility for the loss of normally anticipated wage adjustments would reside with the Union. Nothing in the explanation proffered by supervision or management to employees in injection molding or the machine shop with respect to the basis of the wage moratorium served to eradicate the notion that the policy consideration to withhold wage increases was predicated upon the Respondent's comprehension of the mandate of the law, and was not an inevitable consequence of the Union's effort to organize the employees. On the record, as a whole, I find that, by abstaining from the grant of wage increases at the approximate time and in the amounts normally to be anticipated by affected employees, Respon- dent engaged in conduct having the foreseeable conse- quence of interfering with the rights guaranteed employees by Section 7 of the Act. However, separate considerations govern the wage mora- torium as it applied to other unit employees, in other operating departments in Respondent's enterprise. Initial- ly, as noted above, Respondent pursued no established practice of periodic wage increases with respect to depart- ments other than those under the supervision of Paul Trout, and there is no evidence of record warranting an inference that supervision or management had held out to the employees in departments other than injection molding and the machine shop the prospect or promise of periodic wage increases to accrue at fixed intervals or dates certain. Moreover, there is nothing in the record to suggest that Respondent capitalized in an affirmative manner on the wage moratorium in any fashion which would serve to attribute responsibility to the Union or the decision of management to withhold wage increases. The principal support for the General Counsel's theory of the case, with respect to this segment of the unit, is Cooper's concession that, but for the wage moratorium, some 27 employees likely would have received wage adjustments during the early months of 1977. However, viewed from the vantage point of the employees themselves during the period following the filing of the representation petition and the February 3 election, and from the standpoint, also, of the postelection period, all that was reasonably to be antici- pated by them, based upon Respondent's past practice vis- a-vis them, was that, at some point in time, the likelihood of an upward adjustment in compensation would be forth- coming as a consequence of their continued job tenure. This is not sufficient, in my view, even considering the concession made by Cooper concerning the likelihood of a wage increase to support an 8(aXl) violation. I find this to be the case because the instant record, as it relates to that portion of the unit here under discussion, is factually indistinguishable in salient respects from The Great Atlantic & Pacific Tea Company, Inc., wherein the Board dismissed a complaint alleging 8(aXl) violations. In Great Atlantic & Pacific Tea, the Board stated at 645-646: Respondent had made no prior promise of a wage increase. Employees simply were aware that "increases had been given in the spring in previous years." Contrary to the Trial Examiner, we do not find that Respondent had an affirmative duty under the facts in this case to explain a postponed wage increase that never had been promised, where no specific date could be set for a wage increase because there was no established past practice from which it could be concluded with any degree of certainty when a wage increase would have been given. It is not unlawful per se for an employer to deny wage increases during a union organizational drive, for otherwise it may be accused of attempting to influence employees to decide against being represented by a collective-bargaining representative. Thus, an employer's action in postpon- ing the grant of a wage increase may be taken to avoid the appearance of attempting to influence the employ- ees' decision concerning their representation for pur- poses of collective bargaining. We hold that there has been no interference in this case with the employees' rights under the Act. Accordingly, we find that the Respondent's postponement of the wage increase with- out an explanation therefor and at a time when the Union's organizational campaign was about to be resolved in a scheduled Board-conducted election was not violative of Section 8(a)() of the Act. In reaching this conclusion we specifically note that there is no evidence to indicate that Respondent in any way sought to capitalize on the absence of a wage increase by connecting the absence with the Union or the employees' support of the Union. On the basis of this rationale of the Board, I shall recommend that the complaint be dismissed insofar as it encompasses Respondent's failure to grant wage increases to unit employees other than those employed in injection molding and the machine shop. See also Heckethorn Manufacturing Co., supra. 767 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(aX 1) of the Act, I shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully withheld periodic wage increases which normally would have been forthcoming to the employees listed below until after the question concerning representation raised by the filing of the Union's petition had been resolved, and collective- bargaining negotiations completed, I shall recommend that Respondent be ordered to pay each of the below-listed employees such increases as would normally have been granted them, together with interest at the rate of 7 percent per annum, as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). Victor Cook Jerry Crow Donald Fox James Mason Doris Rekemeyer Robert Shafer Duane Taylor James Walsh Thomas Warwin Dale Williams CONCLUSIONS OF LAW 1. Plasticrafts, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Work- ers, is a labor organization within the meaning of Section 2(5) of the Act. 3. On February 11, 1977, the Union was certified as the exclusive bargaining representative of employees in the following-described unit for the purposes of collective bargaining: All regular and part-time production and maintenance employees, including shipping and receiving employ- ees, material handler employees, leadmen, drivers and janitorial employees employed by the Employer at its plants located at 2800 North Speer Boulevard, 2494 Blake Street, 2363 Blake Street, and 3383 Fox Street, Denver Colorado, excluding office clerical employees, professional employees, technical employees, salesmen, guards, and supervisors as defined in the Act. 4. By suspending four employees employed in the injection molding department and the machine shop, all wage increases for the period December 8, 1976, to May 1977, because of the pendency of the representation matter in Case 27-RC-5411, and the resultant collective-bargain- ing negotiations, Respondent engaged in conduct in viola- tion of Section 8(a)(I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 7(c) of the Act, I hereby issue the following recommended: Having found that in May 1977, with acquiescence and approval of the Union, Respondent effectuated voluntary wage adjustments for employees in its employ, including the abbve-named employees, I shall recommend that Respondent's make-whole obligation be diminished by offsetting the amount of wage increases granted to employ- ees entitled to benefit from the make-whole order recom- mended herein against any wage and interest entitlement that would otherwise result to any individual employee, including Jerry Crow and James Mason, as a consequence of the application of the instant remedy. Moreover, as the May 1977 voluntary wage adjustment had the practical and literal effect of terminating the moratorium upon wage increases to the employees listed immediately above, it is neither intended nor recommended that the make-whole remedy set forth herein have prospective or cumulative application with respect to dates or time periods subse- quent to the grant of the May 1977 wage adjustment. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: e 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. ORDER6 Respondent, Plasticrafts, Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Suspending and/or withholding wage increases which otherwise would have been granted but for the pendency of a representation matter and resulting collective-bargaining obligation. (b) In any like or related manner interfering with, restraining, or cocercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(aX3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: 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. 768 PLASTICRAFTS, INC. (a) Make whole certain named employees employed in the bargaining unit hereinabove found appropriate for any loss of wages he or she may have incurred by reason of the suspension of wage increases, in the manner described in the section of this Decision entitled, "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of wage obligation due under this recommended Order. (c) Post at its Denver, Colorado, place of business on locations copies of the attached notice marked "Appen- I In the event that this 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 dix." 7 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director of the National Labor Relations Board for Region 27, in writing, within 20 days of the date of this Order, what steps the Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 769