The Savings Bank Co.

THE SAVINGS BANK COMPANY The Savings Bank Company and Office and Profes- sional Employees International Union, Local #422, AFL-CIO-CLC. Cases 9-CA-7545 and 9-RC-9648 November 13, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 13, 1973, Administrative Law Judge Benjamin A. Theeman issued the attached Decision in this proceeding. Thereafter, the 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 1 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 Administrative Law Judge and hereby orders that the Respondent, The Savings Bank Company, Chillicothe, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. IT IS FURTHER ORDERED that the election held in Case 9-RC-9648 be, and it hereby is, set aside, and that said case is hereby severed and remanded to the Regional Director for Region 9 to conduct a new election at such time as he deems that the circum- stances will permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record anti find no basis for reversing his findings. DECISION STATEMENT OF THE CASE 269 BENJAMIN A. THEEMAN, Administrative Law Judge: The complaint in Case 9-CA-75451 alleges that The Savings Bank Company (Bank or Respondent) during July, August, and September 1972, (a) granted wage increases to employees; and (b) through its personnel coordinator, Roger Palmer, interrogated employees and advised em- ployees of wage benefits that would be coming to them all in violation of Sections 8(a)(1) and 2 (6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (the Act). The petition for certification in Case 9-RC-9648, was filed on June 30, 1972. A stipulation for certification upon consent election was executed by the parties and approved by the Regional Director for Region 9 on July 31 , 1972. An election was conducted on September 7, 1972. The tally of ballots showed 32 sligible voters and 31 ballots cast; 13 were for the Union, 17 were against, and I vote was challenged. The challenged vote was insufficient to affect the election. On September 14, 1972, the Union filed timely objections to the election . After an investigation, the Regional Director issued his report on December 13, 1972, recommending to the Board (a) that the Union's Objec- tions 3 and 4 be overruled, and (b) that a hearing be held to resolve the issues raised by Objections I and 2.2 No exceptions were filed to the report. By Order dated January 5, 1973, the Board adopted the Regional Director's order and remanded the case to the Regional Director for appropriate hearing. The Regional Director by order and notice dated March 13 , 1973, consolidated the two cases for hearing. Pursuant to said notice, the hearing was held in Columbus, Ohio, on April 10, 1973. All parties appeared and were represented by Counsel. They were given full opportunity to participate, adduce evidence, examine and cross-examine witnesses, and present oral argument. All parties have submitted briefs that have been read and considered. Upon the iintire record, and from my observation of the witnesses,3 I make the following: I Issued on March 13, 1973, based on a charge filed on January 18. 1973, by Office and Professional Employees International Union. Local # 422, AFL-CIO-CLC. 2 Objection I was based on interrogations alleged in the complaint and others that occurred dung July 1972. The latter were not pleaded because they were barred by Section 10(b) of the Act Objection 2 in essence is the same act of granting employees improper pay increases alleged in the complaint- 3 The testimony of all witnesses has been considered. In evaluating the testimony of each witness, demeanor was relied on. In addition, inconsisten- cies and conflicting evidence were considered and set forth herein. The absence of a statement or resolution of a conflict in specific testimony, or of an analysis of such testimony, does not mean that such did not occur. See Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159,116 t Further, to the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony." N.LR B v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2, 1950) reversed on other grounds, 340 U.S. 474 (1951); (Continued) 207 NLRB No. 49 270 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD FINDINGS OF FACT 1. BUSINESS OF THE BANK The Bank is an Ohio corporation engaged in general commercial banking in Chillicothe, Ohio .4 During the 12 months preceding the hearing (a representative period) the Bank received gross income from its banking operations in excess of $500,000. During the same period, the Bank transferred funds and other commercial paper valued in excess of $50,000 from its location in Chillicothe to firms outside Ohio. It is found, as admitted, that the Bank is and has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION It is found, as admitted, that Office and Professional Employees International Union, Local # 422, AFL-CIO-CLC (the Union), is and has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION A. The Issues The issues in this case have been adequately set forth in the statement of the case above. B. The Union Campaign The record does not show precisely when in 1972 the union organization campaign at the Bank started. Rose Marie McCoppm, Nancy Detillian,, Charlotte Wolf, Vir- ginia Kreider, Carolyn Krick, Marsha Landrum, Cheryl Swinderman, and a few other employees attended several union meetings in June 1972. McCoppin passed out 31 authorization cards to bank employees in one day in the early part of July. This occurred after a meeting the previous day with the business representative of the Union. The distribution of cards by McCoppin occurred in the bank lobby before the Bank opened for business. The other named employees signed union cards. Some of them on occasions spoke to other employees about the Union. Except for McCoppin the named employees indicated they were not very active in the union organization campaign. Bank officials admit and it is found that the Bank had knowledge that the union campaign was going on. From the foregoing and the record as a whole it is concluded that the Union organization campaign did not start at the Bank prior to June 1972.5 N.L.R. B. v. United Brotherhood of Carpenters, 230 F.2d 256, 259 (C.A 1, 1956); cf. N.L R B. v. Florida Citrus Canners Co-Op, 288 F 2d 630, 638 (C.A. 5, 1961). 4 It has a central office and two branch banks in that city. 5 This finding takes into consideration the fact that Landrum testified she attended union meetings "through the summer" approximately "May, C. The Bank Gave Improper Wage Increases 1. The Bank's wage policy 1971-1972 Hall, president of the Bank since January 1971, testified that as a result of a study made by him in 1971, he determined that the Bank had not been meeting the wage standards of other Chillicothe banks. He stated further that late in 1971 he decided to raise salaries in the Bank 15 percent but was prevented from doing so because the Federal Wage Freeze was in effect, limiting proposed increases to 5-1/2 percent. On December 15, 1971, at the Bank's Christmas party, Hall announced to the employees that 1971 was the last year a Christmas bonus would be given; that commencing January 1972 the employees would be given a 5-1/2 percent increase: a portion in January and the remainder of the 5-1/2 percent on the anniversary date of their employments Again according to Hall, the Bank received information about June 13, 1972, that indicated that because of its size, it was not subject to wage controls. Hall, with Ted Toenniges, assistant vice president, and Roger Palmer, personnel coordinator, started to plan to put the 15-percent increase for their employees into effect. On June 28, 1972, they were putting together the final implementation of this plan when they were advised of the union organizational campaign. Then upon the advice of counsel that granting increases during the union campaign was illegal; the Bank refrained from giving any increases. Shortly thereafter, the Bank changed counsel and was informed it had no right to stop making increases and to continue giving raises as it had done before. In July, August, and September it made the anniversary date increases that are alleged herein as improper. There is no evidence to show that the Bank at any time informed the employees about the proposed 15- percent plan. 2. The individual employees' increases in wages McCoppin began working for the Bank May 21, 1969. In January 1970 and 1971 she received 5 cents-an-hour increases. In January 1972 Toenniges told her she was receiving 5 cents and that ' from then on she would also receive an increase on the anniversary of the date she started with the Bank. About the first week of June 1972 she received an additional 6 cents an hour retroactive to her anniversary date. At this time she was told the increase could not be more because of wages controls.? Krick was employed as a teller by the Bank in July 1970 at a starting pay of $325 a month. In January 1971 she received a $20-a-month raise. In January 1972 she received an 8-cents-per-hour increase at which time she was told by either Toenniges or Palmer she would later receive an anniversary raise. In July 1972 Palmer gave her a 28-cents- per-hour increase and told her it was an anniversary raise. Detillian began working for the Bank as a part-time employee in March 1971 at $1.60 an hour. Two months June " 6 The record is not clear on the following but it does show that the policy also provided for a review of the employee's situation for increase purposes 90 days and 6 months after the date the employee was hired. ' The record does not contain evidence of the salary paid McCoppin. THE SAVINGS BANK COMPANY 271 later with no change in pay she became a full-time employee. In January 1972 Detillian received a 9-cents-an- hour increase. On her anniversary in March 1972 she received an additional 11 cents an hour. At that time Toenmges told her that the 9-cent and 11-cent raise combined was 5-1/2 percent because that was the maximum allowed under the wage puce control.8 Wolf, a drivein teller, started working for the Bank on June 11, 1971. Later in 1971 she received a 10-cents-an- hour increase. In January 1972, she received an additional 8 cents per hour. At that time Toenniges told her that the 8 cents was a token raise; that she would receive the remainder of a 5-1/2-percent increase on her anniversary date. \ In June she spoke to Toenniges, he told her the balance due was 3 cents per hour. She did not get the 3 cents on her first request. She spoke to Toenniges three or four times thereafter. Each time he told her he was trying to do more for her. In July, after Palmer became personnel coordinator she spoke to him and asked him about her 3 cents. He said she would not get it "because of the-union petition." Later in July, she met with Hall and Palmer. They told her what her raise would be in dollars which translated into 28 cents per hour. No explanation for the increase was given to her. Landrum was employed by the Bank as a part-time proof operator in August 1971 at,$1.60 per hour. She became full time a month later at the same pay. In February and March 1972 she received 5-cent increases. Nothing was said to her on each occasion about raises. Hall and Palmer spoke to her in August on her anniversary date and gave her a 25-cents-per-hour increase. It is noted the combined increases totalling 35 cents yield a 21-percent increase on $1.60 per hour salary. Kreider began working for the Bank in October 1971 as a part-time employee at $1.65 per hour. In February 1972 she became a full-time employee and received a 6-cents- per-hour increase in pay. In August 1972, Hall and Palmer spoke to her and gave her a 25-cents-per-hour increase. They told her they were giving her the raise for May 1972; that it was a 6-month anniversary raise because she had been on full time for 6 months .9 It is noted that the combined increases totalling 31 cents yield about a 19- percent increase based upon $1.65 per hour. Swinderman was hired by Toenniges for the Bank as a teller in May 1972 at $1.85 per hour. At the time, he told her that at the end of 90 days or 3 months she would get an increase or a review. In August, Palmer spoke to Swinder- man and told her she would be getting her 90-day raise. Before the Union election took place in September 1972, she received a 25-cents-per-hour increase. It is noted that this yields a 14-percent increase on $1.85-per-hour salary. 3. Conclusion that the increases in pay are improper Respondent contends that the increases given the employees in July, August and September 1972, were motivated by economic considerations only. Respondent points out as stated above that its plan to give employees a 15-percent increase across the board originated in Decem- ber 1971, but was held in abeyance by circumstances beyond Respondent's control. In July 1972 Respondent contends it reinstated its 15-percent plan and paid increases under it after it had been advised by counsel that such payments were the proper thing to do. The General Counsel contends (1) the July, August, and September 1972 increases after the petition was filed were abnormally high and were intended to counteract the Union organizing campaign, and (2) the 15-percent plan "had never been proposed. However, the fact that anniversary raises had been mentioned to employees, coupled with- the partial lifting of wage controls gave Respondent an opportunity to give abnormally large raises to those employees whose anniversary dates came after the Petition was filed, while manufacturing a previous inten- - tion to give these abnormally large raises." The following analysis will deal pointedly with the five increases given by Respondent in July, August, and September 1972. It is unnecessary to make a determination as to whether Respondent did or did not have an effective 15-percent. plan.1° A study of the -record shows that the increases made were inconsistent with a 15-percent plan. In December 1971 Respondent purportedly intended to put into effect a 15-percent increase plan. Instead it put a 5-1/2-percent increase into effect paying part in January 1971 and the remainder on the anniversary date of the employee. The record shows that six employees" working at that time were given increases and informed that the increases were given according to the 5,-1/2-percent system. The seventh employee, Swinderman was hired in May 1972 after the 5-1/2-percent system was put into effect. It is reasonable to assume that if the, 15-percent plan had been reinstated in July 1972, these seven employees would have been given equal treatment under it. An analysis of the facts shows that they were not. McCoppin was given a 5-1/2-percent increase in two steps. In total she received an 11-cent-per-hour increase, 5 cents in January 1972 and 6 cents in June retroactively to her anniversary date in May. No evidence of any payment to her of the additional 9-1/2 percent to make up a 15- percent increase is shown. Detillian was given what purported to be a 5-1/2-percent increase in two steps. In total she received a 20-cent-per- hour increase, 9 cents in January 1972 and l I cents in March on her anniversary date. The record contains no information why Detillian was given what amounts to a 12- 1/2-percent increase on her base pay of $1.60 per hour instead of the stated 5-112-percent ceiling, or that she received an additional 2 1/2 percent increase thereafter to make up the total of a 15-percent increase. Wolf was given what started out to be a 5-1/2-percent increase. She received a total increase of 36 cents per hour 8 It is noted that the combined increases totalling 20 cents yields a 12- 1/2-percent increase based on $1.60 per hour. 9 Palmer, personnel coordinator, admitted that Kreider's 6-month anniversary date had been overlooked ; that when he became coordinator in July 1972 he noticed the omission, spoke to Hall about it, and they both went to Kreider to give her the increase retroactively. 10 It is significant as stated above that Respondent, in view of its alleged program of changing its salary system, failed to inform the employees of the proposed 15-percent plan. If a finding were considered necessary , it would be concluded that poor to the election the Bank had no effective 15-percent plan. 1' McCoppm, Krick, Detillian, Wolf, Landrum, and Kreider. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in two steps. In January 1972 she was paid 8- cents. According to her testimony and Palmer's there was still due her 3 cents per hour to make up the 5-1/2-percent increase. In July 1972 without explanation Wolf was paid 28 cents an hour additional. The 36 cents-per-hour increase does not fit into - the 15-percent plan, insofar as that amount exceeded 15 percent by 6 cents. This overage is computed as follows: if I1 cents (8 + 3) represented a 5- 1/2-percent increase, then a 15-percent increase would total 30 cents. Landrum was employed in August 1971. Nothing was said to her at her 6-month anniversary in February 1972. In 1972 she received a total increase of 35 cents per hour in 3 steps; 5 cents in February, 5 cents in March and 25 cents in August.12 The record shows she received 10 cents. Under the 15-percent plan she should have received a total of 24 cents. Instead she received a total of 35 cents or a 22- percent increase on her base pay of $1.60 per hour. Kreider was employed in October 1971. In 1972, she received a total increase of 31 cents per hour in two steps. In February 1972 she was paid 6 cents. In August 1972 she received an additional 25 cents retroactive to her,6 month anniversary. Under the 15-percent plan she should have received a-total of,25 cents. Instead she received 31 cents or a total increase of 19 percent on her base pay of $1.65 per hour. Swinderman was employed in March 1972 at $1.85 per hour and was told there would be a review in 90 days. In September, before the election, she was given a 25-cents- per-hour increase. This was equivalent to a 13-1/2-percent increase. - The foregoing shows that the increases made by the Bank during July, August, and September were not made as alleged by the Bank according to any set plan established by the Bank to give raises. That allegation failing, it cannot be concluded that the raises were motivated by economic considerations, or at least only by economic considerations. The Bank offers no other system or basis for the raises as given. It is specially noted that the Bank did not give equal raises to McCoppin and Detillian who had anniversary dates prior to the date of the filing of the petition and who had already been paid the balance of the 5-1/2-percent increase for their anniversary date. Contrast those payments with the payments made-to -Wolf and Kreider whose anniversary dates were prior to June 30 but who had not been paid their increases. When they were paid after June 30 they were in the excessive amounts. The one thing that is consistent about the increases is that in July, August, and September 1972, they were larger than any made before; and were made after the petition was filed and before the election during the time of greatest 12 Hall and Palmer spoke to Landrum in August 1972, but told her no more than that she was getting the increase and its amount. 13 As stated above the increases to Wolf and Kreider were given during this period retroactively to an earlier anniversary date. 14 This conclusion is supported by acts of illegal interrogation and threats of reduced benefits made by the Bank during this period as shown below. It is recognized that the conclusion herein is an inference . But it is considered that under all the circumstances herein the inference is well founded and permissible. Cf. Shattuck Denn Mining Corp. v.N.L.R.B., 362 F.2d 466, 486 (CA_ 9, 1966), dealing with a Sec. 8(a)(3) situation . See also N.L.R.B. v. Miller Redwood Co., 407 F.2d 1366, 1369 (C.A. 9, 1969). 15 There is "no doubt that [Sec. 8(a)(l)] prohibits not only intrusive union activity. It is reasonable to assume that under these circumstances, the Bank seized upon the opportunity of giving anniversary increases 13 in unusually large amounts in order to induce the employees to vote against the Union.14 Under these circumstances, the payments inter- fere with the employees rights guaranteed under Section 7 of the Act and constitute a violation of Section 8(a)(1) of the Act.15 D. The Bank Improperly Interrogates Employees The General Counsel alleges that several instances of improper interrogation occurred between bank officials and employees, As - stated above some are alleged as violative of the Act. Others because of Section 10(b) of the Act are alleged as objections to the election. As each instance is dealt with, a notation will be made in a footnote as to its category. J. July conversation between Toenniges and McCoppin 16 In July 1972 Toenniges held a conversation with McCoppin. According to McCoppin, among other items discussed Toenniges asked McCoppin if she was for the Union and if she was for the Union because her father was for the Union.17 In addition, he pointed out to McCoppin that the Bank had been lenient with her in relation to taking time off because of her diabetic daughter; that the Bank could no longer be that lenient if the Union got in.18 Toenniges admitted that he was aware that McCoppin had been involved in passing out union cards and that he knew that her father was active in union matters in Chillicothe. Toenniges stated he had no recall as to what he said to McCoppin about her father. He denied that he asked her how she felt about the Union, which denial is not credited. He admitted that in the conversation with her he pointed out to McCoppin that "she had need for time off occasionally because of her daughter ... and if the Union wins the election . . . it's not always the case that somebody can guarantee that everything is going to remain in force, that is in force. All the benefits and everything else." Toenniges' words are not the same as those McCoppin used in the last sentence of the first paragraph in this section. McCoppin and Toenniges both state that neither is repeating the specific words then used by Toenniges. But what appears reasonable is that the clear import of Toenniges' words is that expressed by McCoppin: a change in McCoppin's benefits will occur if the Union gets in. Accordingly, it is concluded that the words used by Toenniges expressed an implied threat of loss of benefits if threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect." N L.R B v Exchange Parts Co., 375 U.S. 405, 409 (1964). 16 This conversation is alleged as an objection to the election 17 McCoppm's father had participated in a union election for the hospital board in Chillicothe 18 Once in 1971 and again in 1972 McCoppin's child became seriously ill. McCoppin took time off to stay with her daughter. The Bank gave her permission to do so and paid her for the time off. THE SAVINGS BANK COMPANY the Union came in. From the foregoing and the record as a whole it is found that Toenniges' questioning of McCoppin and the threat of lost benefits interfered with the rights of employees guaranteed by Section 7 of the Act. Having occurred after the petition was filed and before the election, these actions interfered with the election and the free choice of the employees with regard to their union representative. 2. Conversations between Palmer and McCoppin 19 McCoppin held a conversation with Palmer in late July or early August 1972. Palmer asked McCoppin why she was for the Union. She told him that she didn't think it was fair for new employees to come in at a higher wage than older employees who were training them. He asked her if she was afraid she would lose her job if the Union didn't get in. She answered in the negative and asked him if she should be afraid. He did not answer. Palmer and McCoppin had another conversation the last week in August not long before the union election. He told her there was a teller's position open that she was qualified for; that she could have it if she wanted it and since she was going on vacation to let him know when she returned.20 He also told her he was working on a plan to balance the wages of the old employees with the new, and that the Bank was establishing a policy not to hire new employees at a greater pay than the old employees. It is concluded that the first conversation with Palmer was improper interrogation of employees about their union activities and violated Section 8(a)(1) of the Act. Assur- ances were not given McCoppin that there would be no reprisals in relation thereto.21 The second conversation contains no mention of union activity but nonetheless was also improper. McCoppin's union activities and prefer- ences were known to the Bank. When Palmer told McCoppin that the Bank was curing the practice of hiring new employees with higher pay than the older employees he was telling her that she did not need the Union in order to have her gripe settled. A promise of benefit at this time and under these circumstances impinges upon the employ- ees' freedom of choice as to the rights guaranteed in Section 7 of the Act. Accordingly, it is found that both of the Palmer/McCoppin conversations violated Section 8(a)(1) of the Act.22 19 These conversations are alleged as violations. 20 This offer of a better job is not alleged as a violation. 21 The Board has said, "Questioning of selected employees about their union sympathies . . . without any assurance against reprisal , by its very nature tends to inhibit employees in the exercise of their right to organize." Engineered Steel Products, Inc., 188 NLRB 298. See also Struksnes Construction Co. Inc., 165 NLRB 1062 , and N.LR. B. v. Cameo Inc., 340 F.2d 803 (C.A. 5, 1965) cert. denied 382 U.S. 926( 1965). 22 Whether or not these conversations are violative of Sec. 8 (a)(1) of the Act is a close question. The coercion and interference that may accompany the interrogation is mild when viewed in the light of hard core conduct that has often accompanied a representation campaign . But the evidence shows that the Bank was opposed to the Union and made its position clear to the employees. Thus, viewing all the incidents herein collectively and recogniz- ing that they occurred during an active campaign opposing the Union they amount to part of a coordinated pattern of coercion . As stated by the Fifth Circuit in N. L. R. B. v. Builders Supply Co. of Houston, 410 F.2d 606, 608, (1969), enfg. as modified 168 NLRB 163, the interrogation under such 273 3. Conversation between Bochard and Detillian 23 In early July 1972, Detillian held a conversation with Bochard, acting manager of the central branch .24 Bochard called her into his office. There he asked her how she felt about the Union. She told him she was for the Union because in that way the employees could get fair wages. He then told her that with the Union , the employees would operate on a timeclock ; punch in and out and be docked for all time off, even emergencies ; 25 union dues would be high ; and the Union could do a lot of damage to the Bank. He also stated that the Bank was getting ready to give raises but could not do so until after the election was over. A few days later, Bochard and she had another conversation at her work station. Bochard asked her if she had changed her mind about the Union. Detillian replied that if he stayed "off our backs maybe we would. He was only making us more determined." Bochard said, "nobody was more determined than me." The circumstances of these conversations are similar to those between McCoppin and Toenniges. Like her, Detillian was interrogated about her union activities with no assurances that no reprisals would occur because of them and was threatened with loss of benefits should the Union be successful. Both these actions interfered with the rights guaranteed employees in Section 7 of the Act. Both these actions interfered with the holding of the election. 4. Conversation between Toenniges and Wolf 26 In June 1972 Wolf spoke to Toenniges about her 3-cent increase. He told her he was trying to do more for her. In July she spoke to Palmer who told her that she could not get the increase "because of the union petition." In July she again spoke to Toenniges . The following conversation occurred: A. ... he approached me at my place of work and asked me how I felt about the union . I told him I thought we needed it. That it would be helpful, that they were hiring girls in making more than the girls that had been experienced there and that I couldn't even get a three cent raise . And he told me that we didn't need a union. That they could not help us. And he said if we had a problem, we would not be any more allowed to go directly to him for help . . . He also told me that the Mead would govern our union. Q. What is the Mead? circumstances is coercive "since it took place in an atmosphere of active opposition to the union, Bourne v. N.LR.B.. 332 F.2d 47. 48. 56 (2d Cir., 1964). without explanation to the employees of the purpose of the questioning and under circumstances indicating that it had no legitimate purpose, Edward Fields. Inc. v. N.LR.B., 325 F.2d 754. 758-759 (2d Cir., 1964), and was unaccompanied by any assurances against reprisals, see N.LR.B. v. Lorbes, Corp., 345 F.2d 346, 348 (2d Cir., 1965)." The interrogation also exceeded the limits set by the Board in Struksnes Construction Co., Inc., 165 NLRB 1062. The test is whether under the attendant circumstances the questioning tends to be coercive, not whether the employees are coerced . N.LR.B. v. Varo, Inc., 425 F.2d 293. 298 (C.A. 5. 1970). 23 This conversation is alleged as an objection to the election. 24 Bochard was not called as a witness. 25 Mrs. Detillian had taken time off on two occasions to take her daughter to the doctor. She noted her comings and goings in writing. She was not docked for her time off. 26 This conversation is alleged as an objection to the election. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Mead. The union at the Mead Paper Mill. Q. Where it that? A. That is in Chillicothe.... And he asked me if I knew how the union got in to the mill. And I said "No, I don't." And he said, "Well, they brought prostitutes in for the men." Toenniges admitted he held a conversation with Wolf. He denied that he asked her how she felt about the Union but admitted that he told her she or the Bank didn't need a union. On direct examination he denied saying anything like the statement "the union had supplied prostitutes for the men." On cross he also denied saying that "the union at Mead had gotten in by the use of prostitutes." After he was reminded that he had given a statement to a representative of the Board he recalled that he told McCoppin or Wolf about a union that organized a company by the use of a male prostitute who was hired to find a woman within the company that he could become friends with and solicit information from. With regard to the foregoing conversation the testimony of Wolf is generally credited. Undoubtedly the subject of union use of prostitution (male or female) in the course of a union campaign was brought up. It is considered unnecessary to make a finding as to whether the subject as discussed was objectionable. However, it is found that Toenniges did interrogate Wolf about her union feelings and did so without any assurances that no reprisals would be taken. Such interrogation is coercive and interferes with the holding of a free election. IV. OBJECTIONS TO THE ELECTION Objection I dealt with certain interrogations of McCop- pin, Detillian, and Wolf. They have been found to have interfered with holding of a free election under the laboratory conditions imposed by the Board. Accordingly it is recommended that Objection I be sustained as herein set forth 27 Objection 2 dealt with the increases granted the em- ployees in July, August, and September which have been found to be violative of Section 8(a)(1) of the Act. This conduct having occurred between the day of the filing of the petition and the day of the election also interferes with the exercise of a free and untrammeled choice in an election. Oleson's Foods No. 4 Inc., 167 NLRB 543, 551; Irving Air Chute Company, Inc., 149 NLRB 627, 629; Dal- Tex Optical Company, Inc., 137 NLRB 1782, 1786. It is recommended that Objection 2 be sustained. It is found that the above conduct of the Bank resulted in substantial interference with the election held on Septem- ber 7, 1972 in Case 9-RC-9648. V. THE EFFECT UPON COMMERCE OF RESPONDENT'S UNFAIR LABOR PRACTICES The activities of the Bank set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY It having been found that the Bank has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been further found that the Employer has engaged in certain conduct affecting the results of the election conducted on September 7, 1972, it is recommended that the election be set aside and that a new election be conducted by the Regional Director at an appropriate time. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Savings Bank Company, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local # 422, AFL-CIO-CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, the Bank has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Other than as above found, the Bank has not engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By engaging in threatening, coercive and other conduct, as above found, the Bank unlawfully interfered with the freedom of choice of its employees in their selection of a bargaining representative on September 7, 1972. 6. The aforesaid conduct constituting unfair labor practices and conduct illegally affecting the results of a Board-conducted election is conduct affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER28 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that The Savings Bank Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union sentiments. 27 The objectionable conduct occurred after the filing of the petition and before the election. It is not necessary that such conduct be a violation of the Act to be found objectionable so long as the conduct is found to have an impact on the election See Independent Inc, d/b/a Daily Advertiser v N LR.B., 406 F.2d 203, 207 (C.A. 5,1969). 28 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its €indings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. THE SAVINGS BANK COMPANY 275 (b) Threatening its employees with cessation or reduction of benefits or more onerous working conditions in the event they chose the Union. (c) Promising or granting the employees unusually large increases in pay or other benefits in order to induce them not to vote for or join a union. (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Post at each of its places of business in Chillicothe, Ohio, copies of the attached notice marked "Appendix." zs Copies of said notice, on forms provided by the Regional Director for Region 9, 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT Is FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges any unlawful conduct other than that as above found. IT IS FURTHER RECOMMENDED that the election held on September 7, 1972, in Case 9-RC-9648, be set aside, and that said case be remanded to the Regional Director for Region 9 of the Board to conduct a new election at such time as he deems that circumstances permit the employees' free choice of a bargaining representative. zs 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX Judge of the National Labor Relations Board, it was found that we violated the Act in the respects set forth in his Decision, and to remedy these unfair labor practices, we advise you that: WE WILL NOT coercively question any employee regarding his own or 'other employees' lawful union activity. WE WILL NOT threaten any employee that he or she will suffer the loss of any existing benefits or conditions of employment or will be treated less favorably because of union activity. WE WILL NOT promise or grant any employee an unusually large increase in pay or other benefit to induce him or her to refrain from joining a union, or engaging in union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of his or her right to join or assist Office and Professional Employees International Union, Local # 422, AFL-CIO-CLC, or any other labor organization to bargain collectively through their representatives, or to engage in other concerted activity, or to refrain from such activity, except as such right may be affected by some agreement as provided in Section 8(a)(3) of the Act. All our employees are free to support or to become or remain members of Office and Professional Employees International Union, Local # 422, AFL-CIO-CLC, or any other labor organization, or to refrain from such activity, subject to Section 8(a)(3) of the Act. THE SAVINGS BANK COMPANY (Employer) Dated By (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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3621. NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government As the result of a trial before the Administrative Law