Emery Air Freight Corp.

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emery Air Freight Corporation and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union 407. Case 8-CA-7488 November 26, 1973 DECISION AND ORDER C BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 29, 1973, Administrative Law Judge Irving M. Herman 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. interrogating, soliciting grievances from, and promising and granting wage increases and promotions to its employees ; and violated Section 8(a)(5) by refusing to bargain with the Union (or whether Respondent should be ordered to bargain with the Union even absent an 8(a)(5) finding). Upon the entire record,2 including my observation of the witnesses, and after due consideration of the briefs filed on behalf of the General Counsel and Respondent, I make the following: FINDINGS AND CONCLUSIONS 1. RESPONDENT'S BUSINESS The complaint alleges, the answer admits, and I find that Respondent, a Delaware corporation, is engaged in the forwarding of air freight throughout the United States with its principal office and place of business at Wilton, Connecticut; that its Middleburg Heights, Ohio, facility derives in excess of $50,000 annually from shipping freight which it forwards directly to points located outside Ohio; and that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED 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 Respondent, Emery Air Freight Corporation, Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This case was tried before me on May 9, 1973,1 at Cleveland, Ohio. The charge was filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 407 (herein called the Union), on February 12 and served on Respondent February 15. The primary issues are whether Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act, by I All dates are in 1973 except as otherwise stated- 2 Respondent's brief (p. 2, fn. 1) asserts: "Both Counsel for the Board and Respondent have been in communication and both agree that the transcript as presently reproduced does not accurately reflect the proceed- mg. However, both Counsel have attempted to prepare their briefs without making motions to correct the record." General Counsel, however, on June 18, did file a motion to amend the transcript, stating, "The record is so replete with error that this Motion is limited to those errors which General Counsel considers significant to his case." Sharing the view that the errors are too numerous (and in some instances too garbled) to permit complete reconstruction, but believing that some correction is warranted for sufficient understanding, the corrections were made. The complaint alleges, the answer admits , and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Organization of the employees Notwithstanding good relations overall between Respon- dent and the office employees here involved , general conversations among these employees concerning union representation started in mid-January because they felt severely underpaid. By the end of that month the employees had decided that the Teamsters could best serve their needs because it also represented Respondent's employees on the loading docks. Employee Donald Spitzer therefore communicated with the Union on Thursday, February 1, and a meeting was arranged for 'Sunday, February 4, at the union office. The meeting was held and, following an explanation to the employees of what was entailed, by their action, 18 of the 26 employees in the stipulated bargaining unit3 signed authorization cards.4 3 The stipulation was entered into at the hearing , amending the unit alleged in the complaint to include: "Lead agents, service agents, customer service agents, entry clerks and all regular part-time employees , excluding all other employees, secretary, professional employees, guards and supervi- sors as defined in the Act." 4 According to Organizer Sanzo, 10 cards were filled out at the meeting, but the other 8 must have been executed later that day, since all 18 are dated February 4. It was stipulated that these cards "are authentic and were signed under circumstances that rendered them valid, under existing law, at the time each was signed, for purposes of determining the majority status of [the Union I." 207 NLRB No. 100 EMERY AIR FREIGHT CORPORATION 573 2. Request and refusal to bargain The next day the Union sent Respondent a letter, by registered mail, asserting its representative status and requesting bargaining. Respondent refused to accept the letter. The Union then sent an identical request on February 8, this time enclosed in an envelope that did not bear its name. Respondent's manager for the Cleveland District, Poling, replied on February 9, rejecting the request in view of a "good faith doubt," and declaring that Respondent had filed a representation petition with the Board that day.5 Poling testified that, faced with the immediate decision of whether to accept the first letter from the Union, he rejected it because he was unaware of its contents and had been told by his superiors not to receive any signature cards; but that after refusing the letter he made further inquiry of the Company and was told to accept registered mail. 3. Alleged 8(a)(1) conduct On January 30 and 31, John Kassovic, a lead agent,6 informed Jay Harmon, first-shift supervisor, of the employ- ees' organizational efforts. On February 1, as Kassovic's shift was ending, Poling visited him at his workplace and invited him to Poling's office. Poling asked him what he knew about the organizational activity. Kassovic con- firmed that the employees wanted a union. Poling asked what the main grievance was, and he replied that the people felt grossly underpaid. At that point Operations Manager Madeleine7 appeared and, after some conversa- tion on other matters, asked Kassovic to join him in his office where he put essentially the same questions and received the same answers, with Kassovic noting that there was as much as a $100 differential between the wages of the employees on the dock and those of the office employees. On Friday morning, February 2, Donald Spitzer, a service agent, mentioned to his supervisor, Fred Seifert, that the organizing meeting was scheduled for February 4. That evening Seifert called Spitzer into his office and read to him a memorandum, dated January 30, addressed to Poling by R.A. Van 'Marter, Respondent's regional director,8 in response to Poling's inquiry of January 29 concerning how to answer the many questions from the "inside people" about wage raises in view of the end of Phase II controls. Van Marter's memorandum said, in pertinent part: I have received your memo relative to the question 5 In fact the petition was filed later that day. 6 Kassovic is the highest ranking employee on the premises on the third shift (midnight to 8 a.m ). During this period he contacts the airlines for the purpose of placing cargo, with responsibility to determine which airlines to use. Although he lacks a supervisor's title, grade, and pay, does not participate in either the stock option plan or profit-sharing plan in both of which management and supervisory personnel share, and enjoys the same fringe benefits and premium pay for overtime received by the nonsuperviso- ry personnel, he attends supervisors' meetings, fills out the supervisor's check sheet, has authority to approve overtime for employees and to send employees home, and has recommended the hire and fire of employees with mixed results. Neither of the only other two lead agents at this installation has similar responsibilities. Employee Patricia Moss believes Kassovic to be "the of the company's attitude towards salary adjustment for time sheet employees under Phase III, and find it to be very timely. While all of the elements of Phase III are not yet clear, it does appear that many of the restrictions we've lived with for the past year and a half will be lifted. Consequently our top management is actively review- ing the competitiveness of our nonunion salary sched- ule. It is their hope to be able to bring our salaries at each level fully in line with salaries being paid by others in our industry. Obviously, this is a sizeable undertaking from a time standpoint. While I cannot give you any specific indication of the outcome of this review, I hope to be able to provide you with the specifics within a couple of weeks. Seifert told Spitzer he had been instructed to read the letter to him and to keep it in mind at the Sunday meeting. He delivered a similar message to Patricia Moss, an entry clerk, the same day, also telling her she was being promoted from trainee. Moss' next paycheck, according to her testimony, reflected a $5 raise from $116 to $1219 She had been hired November 20, 1972, and had not expected the promotion before completing 6 months' service. According to Poling, this raise was by way of correcting an earlier error. He explained that at the end of January, pursuant,to a regular monthly practice, he reviewed the employees' records for the purpose of noting who would be due for a length-of- service increase in the next 4-6 weeks so that he could obtain recommendations from their supervisors in the meanwhile even though such increases were "generally given automatically"; that in the course of this review he discovered that one of the entry clerics (Ailor) had been hired at a higher grade (05) than two other full-time entry clerks (Moss and Jakimetz-03) but had been paid at the 03 level, i.e., at the rate of $110 per week instead of $116; that rather than reduce Ailor's grade and continue to keep her at the $110 rate, he chose to give her the $116 rate commensurate with the grade 05, and to eliminate the inequity vis-a-vis Moss and Jakimetz by promoting both of them to grade 05 which entailed raising Moss' weekly rate from $110 to $11610 but involved no raise in Jakimetz' rate because she had been on the job long enough to have already received a length-of-service increase, thus putting her above the 05 minimum. On February 3, Madeleine told Kassovic that the employees were not being wise in organizing, that that was not the best way to raise their wages. ' That same day service manager" on his shift. His was I of the 18 cards stipulated as "valid . .. for purposes of determining the majority status of [the Union I." (Fn. 4, supra.) 7 The name is so spelled in par. 6 of the complaint (which was admitted by Respondent's answer) and throughout the transcript of testimony as well as Respondent's brief I therefore use this spelling herein although the written motion to dismiss, filed after the close of the hearing, spells the name, "Madeline." 8 Cleveland is in the central region which also includes Akron (a "satellite" of Cleveland), Detroit, Pittsburgh, Grand Rapids, Columbus, Dayton, Cincinnati, Louisville, and Lexington. Respondent has seven regions in all 9 In addition to the $40 general raise noted infra. 10 Poling added that the $5 night differential brought Moss' rate to $121 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supervisor Seifert showed Kassovic Van Marter's memo- randum to Poling, and asked him what he thought about it. Kassovic replied that it seemed very vague. When Spitzer reported for work on Monday, February 5, Madeleine called him into his office and asked why the employees wanted a union. Spitzer replied that he thought it was a matter of money. Madeleine said he could understand that and asked if Spitzer was sure there was no other reason. Spitzer replied he could not talk for everyone but thought the majority simply wanted more money. Madeleine thanked Spitzer for talking to him, saying his superiors had asked him the questions. In fact, Madeleine had told Poling of the scheduled meeting and Poling, who was aware of the wage problem, had instructed Madeleine to'ascertain what other problems may have existed "so that we could make intelligent management decisions as to whether there was something we were doing wrong," or, stated differently, what other problems had led the employees "to get a union." 11 Poling, who had also been informed of the union activity by Harmon and of Kassovic's role in it, had instructed Madeleine to come to the office early on February 3 to talk to Kassovic about it 12 On February 6, Poling distributed at the Cleveland facility a memo to all "inside employees" announcing a salary increase of $40 per week for "Entry Clerks, Agents and Lead Agents" effective the following Monday, February 12; and further announcing that "other details of the plan are still being worked on and will be outlined in the near future." After seeing this memo, Spitzer was called into Madeleine's office where Madeleine asked him what he thought of it. Spitzer said he always liked raises, and Madeleine said, "Well, I was able to go back and able to say no to this and yes to this and say yes this is what the people wanted." On the same day Seifert said to Kassovic, in effect, "the Company came through, didn't it?" The part-time entry clerks were called in by Seifert on February 6 and told their hourly rates were being raised from $2.50 to $3.90 at the same time as the $40 raise went into effect for the full-timers.13 The raises were given as promised. Spitzer's salary had been $152 prior to this ($147 plus a $5 night-shift bonus). When hired a year before he had been told that the Company's policy was to give raises at 6-month intervals, the amount depending on the extent to which it was based on merit. He had received such an increase in December 1972.14 Kassovic's salary immediately prior to the raise was $187. Meanwhile, on February 7, Poling called Spitzer and two other employees involved in the organizing drive to his office and stated that he had heard they were afraid of 11 Spitzer had frequently been in Madeleine's office, felt relaxed during the interview, and answered all questions truthfully. It was unusual, however, for company representatives to ask employees to voice their complaints. 12 Although Kassovic was somewhat nervous in his conversation with Madeleine he felt no compulsion to be evasive and was truthful with him, as he had been with Poling and Harmon. 13 Poling's explanation for this was as follows: The part time entry clerks for the most part were making $2.50 an hour. Three were making $2.50 an hour, they all were hired at about the same time. That involved the late Fall of '72. At the same time, we changed the people from an 03 to an 05, and later found out about the salary retaliation by the Company, but that there would be none. They thanked him. Nevertheless, on February 15, there was some talk among the employees about possible repercussions because of the union activity, and some of the employees requested a meeting with management for reassurances. Miller called Poling, and the latter appeared, together with Madeleine, and said there would be no repercussions, explaining at the same time that the reason the raise had not come earlier was the national wage controls. In April 1972 the Company had filed an application with the Wage Board for a systemwide exception from the standard 5.5-percent wage raise policy so as to permit the granting of an Il-percent increase Respondent deemed necessary to become competitive. The application was rejected. On January 23, 12 days after the expiration of Phase II, according to the testimony of the Company Director of Personnel Arthur Alexander, and company records in evidence, he recommended to Respondent's general manager, Healy, increases of $45-$50 a week. Healy replied on January 25 that the cost impact, estimated at about $950,000 for the year (without overtime and other premium pay), was too substantial for immediate absorption and suggested staggering the increases to reduce the annual cost by about one-third and to select "two or three major offices with no more than one from each Region for implementation in early February." Healy's memorandum also authorized Alexander to vary the increases "in different areas of our salary schedule," and named "NOR, SOR, and CRO" 15 as "possible starting points." On January 26, Alexander notified Healy that he had selected Boston, Cleveland, and Dallas (southwest region)16 as the starting points, explaining that he had excluded SOR because Atlanta was "the logical SOR choice but since we are now challenging an NLRB decision in the courts, I don't want to run the risk of an unfair labor practice charge by changing their salary schedules." Alexander testified in this connection that he had been so advised by local counsel in Atlanta. Alexander further testified that he knew nothing of any union activity in Cleveland at the time; and that when he did learn of it about February 7 or 8, after the announcement, he consulted counsel in New York as to the propriety of proceeding with the plan and was advised to go ahead on the theory that a change of plan at that time might amount to leaving the frying pan for the fire. Alexander also testified, however, that early in March Respondent announced similar raises for the remainder of the system, even including Atlanta, effective April 2. And the raise for entry clerks in the systemwide increase,17 as well as in Boston, was only $25. While Alexander thought increase. We decided, why don't we just make all of the entry clerks the same job category, which would be 05 And, which called for $116 and now calls for $156. That would require one-fortieth of whatever the base salary is for that job category which was then $3.90. They went from $2.50 to $3.90 an hour, which was one-fortieth of the starting salary for the full time entry clerks. 14 Such regular raises were apparently noticed only in the paychecks 15 Apparently northeast, southern, and central regions, respectively. 16 But in Boston and Dallas the agents received $38 as against the $40 increase in Cleveland. Akron received no raise at this time despite its status as "satellite" to Cleveland. 17 The "corporate level adjustment," according to Alexander EMERY AIR FREIGHT CORPORATION 575 the clerks in Dallas got more than $25, he admitted it was less than the agents' increase. And he did not think, contrary to the fact, that the clerks got $40 in Cleveland. However, according to his testimony, the regional manag- ers had certain undefined latitude, particularly in respect to part-time help, so long as they kept within their allotted total costs. Poling testified that, given such flexibility, he and Van Marter agreed that $40 across-the-board for the full-timers was "equitable to everyone." Near the conclusion of Alexander's testimony I inquired whether Respondent's records would show the extent of the raises received by part-time entry clerks at its other installations. Respondent's counsel said they would but were not immediately available and offered to forward them for the record in the absence of objection. General Counsel announced he had no objection, and I approved their receipt. On May 24 I received in the mail what Respondent's counsel designated in his covering letter "the supplemental documentation stipulated to at the hearing." This consisted of two groups of papers entitled Employee Census for Personnel Department,18 I of 23 sheets dated January 14, 1973, relating to 15 of Respondent's installa- tions; and the other of 28 sheets dated May 13, 1973, relating to 18 installations. There was no accompanying explanation, but the exhibits appear to indicate, insofar as here pertinent, the grade and job numbers for each employee, whether part-time or full-time, management status, date of full-time hire and date of starting current job, and the weekly pay rate. Although these records appear somewhat less than complete, and in some instances offer no basis for comparison because there is only one census for the particular installation, they tend generally to confirm Alexander's testimony that Cleveland's entry clerks bene- fited from the Phase III raises to a greater degree than those elsewhere.19 At three of the installations (BDL, YYZ, and DCA) no raises whatever were given in this job category, at least to the part-timers: B. Concluding Findings 1. Interrogation and solicitation of grievances I do not view the alleged interrogation in this case as an independent violation of Section 8(a)(1). Where, as here, employees volunteer information to their employer that they are seeking union organization because of their displeasure with their conditions it would be unreasonable of them not to expect the employer to ask the cause of their unhappiness. By the same token such inquiry of itself 18 Hereby numbered ALJ Exhs. I and 2, respectively. 19 The only possible exception is at location PVD where the weekly rate of one employee in the same job category was raised from $80 to $140-and this seems so exceptional as to permit the inference that other factors not here material produced this result- 20 Respondent's additional contention in its motion to dismiss (p. 4), that the employer's promise must be. contingent on the defeat of the union, was expressly rejected in N L.R B v Exchange Parts Company, 375 U.S. 405 (1964) 21 Although Kassovic's testimony generally corroborates the uncontrad- icted evidence cited above supplied by Spitzer and Moss, I do not deem it necessary to rely on Kassovic's testimony, and have not, in making findings cannot reasonably tend to instill the fear or unease in the employees that is the root of coercion proscribed by the Act. But this does not mean that Respondent was free to continue to press its inquiry in such a way as to indicate to the employees that it was prepared to remedy their grievances and thus render union representation unneces- sary. Here, Supervisor Seifert, on February 2, used the occasion of Spitzer's disclosure of the employees' organiza- tional interests to bring to Spitzer's attention Van Marter's memorandum of January 30, telling Spitzer he had been instructed to do so and to keep it in mind at the meeting scheduled 2 days later. Seifert delivered a similar message to Moss the same day. Moreover, immediately after the February 4 meeting, when Spitzer presumably knew more about the views of the employees, Madeleine pressed him as to whether there were other reasons than money for the prounion sentiment. And when the raises became official, Respondent was not content to permit them to go unnoticed like the raises it normally gave, but, as in Madeleine's conversation with Spitzer on February 6, sought the employees' reaction to its efforts to give "what the people wanted." Respondent's contention that the violation requires "at least an implied promise to remedy the dissatisfaction" (br., p. 5) ignores the "compelling inference" of such a promise that the Board draws where, as here, "an employer, who has not previously had a practice of soliciting employee grievances or complaints, adopts such a course when unions engage in organizational cam- paigns." Reliance Electric Company, 191 NLRB 44, enfd. 457 F.2d 503 (C.A. 6, 1972).20 The principle applies with even greater force when, as here, the employer goes further and impresses on its employees the action it has taken "to remedy the dissatisfaction" by announcing it has given "what the people wanted."21 2. Wage increase The discussion immediately above indicates that the wage increase itself was similarly unlawfully motivated. And this conclusion is buttressed by additional facts recited supra, notwithstanding the plans for the increase antedated the protected activity. The Board's current test for determining the validity of a wage increase during the pendency of a representation petition is whether it is given "for the purpose of inducing employees to vote against the union." Tonkawa Refining Co., 175 NLRB 619,22 citing the Supreme Court's decision in Exchange Parts, supra. And the burden is on the employer to come forward with an, explanation for the timing other than the election. The Singer Company, Friden herein. This is not to say that I have accepted Respondent's position that Kassovic's testimony should be stricken because of his supervisory status. Even if he were a supervisor, a question not necessary to resolve in view of the foregoing, I should have substantial doubt that his testimony could not be used to establish an unlawful motive. Respondent cites no authority to the contrary, and its motion to strike is hereby denied. Respondent's further contention (advanced in its brief in support of its motion to strike (p. 2), but not mentioned in its main brief), that "the entire hearing has been rendered academic, the respondent is under no obligation, nor may he (sic) legally, bargain with a unit containing supervisory personnel," is treated below. 22 Enfd. 434 F.2d 1041 (C.A. 10, 1970). 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Division, 199 NLRB 1195. The evidence here establishes that Respondent, for valid economic reasons, decided upon a wage increase on a nationwide basis, and indeed selected Cleveland as one of the immediate starting points, prior to learning of any union activity. This, however, is only the beginning of our inquiry. Just as the grant of a benefit may constitute a violation because of the time it is given, regardless of when it was planned (e.g., Revco Drug Centers of the West, Inc., 188 NLRB 73), so will the grant be unlawful if other evidence shows a motive to interfere with the organizational campaign. I suppose it to be beyond dispute that the giving of a wage increase, decided upon before the commencement of any union activity, violates the Act if the employer tells the employees receiving the raise during a union campaign that the reason for the increase is to destroy their interest in the union. And the same result must follow if the motive is established by facts short of such express statement. Lending support to such a conclusion here is Respon- dent's request of its employees to keep the promised raise in mind when meeting with the Union on February 4. But also bearing on the issue is Respondent's right of free speech. An employer may certainly remind his employees during a union campaign of the good treatment they have experienced through a recital of benefits he has bestowed. Thus, if he granted a benefit a week before the Union's appearance, he could advert to that in seeking his employees' support in the election. I perceive no logical reason why he cannot make the same grant in respect to a benefit he is about to confer if he truthfully makes clear that although he is hoping to retain their goodwill, as he had in the past, the new benefit he is granting was decided upon before the advent of the union and for valid business reasons. Cf. Tommy's Spanish Foods, 187 NLRB 235, 236. This Respondent did. The difficulty with Respondent's position resides in certain other aspects of the raise as urged by the General Counsel, which I find establish that at least part of the motivation at Cleveland was to defeat the Union. After ascertaining that the source of the employees' dissatisfac- tion there was money, Respondent sought to ensure not only that the employees realized it was providing the remedy they wanted but also that none of them would be disappointed. Unlike the $38 raise granted simultaneously to the agents in Boston and Dallas, those in Cleveland received the full $40 authorized by the national office. Nowhere else throughout its entire system were the entry clerks treated with the solicitude they, found in Cleveland. Instead of the standard $25 raise received by the entry clerks at the other installations, those at Cleveland were given the same $40 raise that was given the agents. They thus received raises in a higher amount than the agents got elsewhere. And the part-time entry clerks in Cleveland did even better in percentage terms with the hourly rate increase from $2.50 to $3.90. Poling's explanation that 23 Applying the same method to the former rate of $116, part-timers should have been getting $2.90 an hour instead of $2.50. Indeed $2.50 was one-fortieth of only $100 instead of the then current $110 base for grade 03- 24 This was the effective date, according to the payroll records, although communicated to Moss on February 2 25 I find no merit to the contention in Respondent's brief in support of its motion to strike Kassovic's testimony that Respondent is under no $3.90 was one-fortieth of the new minimum weekly rate of $156 fails to explain why such employees were permitted to fare better proportionately than they had under the preraise policy23 and of course takes no account whatever of the fact that at at least three of Respondent's locations part-time clerks received no raise at all. Respondent's position that the raises were pursuant to its nationwide action and were "not within the power of the regional and station managers" (br., p. 12) utterly ignores the fact that the preferences, noted above accorded the instant employees, were made precisely at the local level. In the absence of some explanation other than Poling's bare statement that $40 was "equitable to everyone," I find it more than a mere fortuity or happenstance that such preferential treatment should occur in the only installation that was being organized. I find rather that Respondent seized the opportunity afforded by its general need for wage adjustments to attempt to nip the organizational campaign in Cleveland. 3. Promotion of entry clerks Absent evidence to contradict Poling's reasonable explanation for the promotion of the entry clerks on February 5,24 and noting from the payroll records that employees elsewhere in the same job category are either grade 03 or 05, I find such promotion not to have violated the Act. 4. Refusal to bargain and need for bargaining order Respondent, by its refusal to recognize the Union despite the latter's majority status based on the authorization cards, lost the 8(a)(5) immunity provided by Linden Lumber Division, Summer & Co., 190 NLRB 718, if its "conduct precluded resort to an election ." Green Briar Nursing Home, Inc., 201 NLRB 503; see also N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 599-600 (1969).1 find the conduct recited above to have rendered "the holding of a fair election unlikely" and such refusal to have violated Section 8(a)(5). Id at 610. The 8(axl) conduct here consisted of the solicitation of the employees' complaints and "the prompt remedy of the grievances which prompted the employees ' union interest in the first place" (International Harvester Co., 179 NLRB 753-754; see also Texaco, Inc. v. N.LR.B., 436 F.2d 520, 525 (C.A. 7, 1971)), i.e., the grant of a general wage increase which is "sufficient per se to justify imposition of an order to bargain." (General Stencils, Inc., 195 NLRB 1709, dissenting opinion of Chairman Miller, seemingly approved in denying enforcement on other grounds 472 F.2d 170 (C.A. 2, 1972); see also C & GElectric, Inc., 180 NLRB 427).25 obligation and may not even legally bargain "with a unit containing supervisory personnel." None of its cited cases supports Respondent's position NLRB. v Metropolitan Life Insurance Company, 405 F.2d 1169 (C.A. 2, 1968), merely holds that an employer need not bargain for a unit whose definition includes classes of individuals who are supervisors The instant issue is not over the unit definition but over the status of a particular individual who, if he is a supervisor, is by definition excluded from the unit. (Continued) EMERY AIR FREIGHT CORPORATION 577 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated. Section 8(a)(1) of the Act by soliciting grievances from its employees and granting them a wage increase to discourage their interest in the Union. 4. Respondent has violated Section 8(a)(5) of the Act by refusing to bargain with the Union. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not violate the Act by promoting the entry clerks. REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondent to cease and desist therefrom and from any like or related conduct. Moreover, in order to effectuate the policies of the Act, and more particularly for the reasons set forth in the section, supra, entitled "Refusal to Bargain and Need for Bargaining Order," my recommended Order will require that the Company bargain collectively and in good faith with the Union in the stipulated unit upon the Union's request; and post the usual notices. Upon the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER26 Respondent, Emery Air Freight Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting grievances from any of its employees with a promise, express or implied, to remedy them. (b) Remedying any grievance or granting a wage increase or any other benefit as an inducement to any employee to forgo representation by the Union or any other labor organization. (c) Refusing to bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 407, as the exclusive representative of the employees in the following appropri- ate unit: Lead agents, service agents, customer service agents, entry clerks and all regular part-time employees, excluding all other employees, secretary, professional employees, guards and supervisors as defined in the Act. (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively and in good faith with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 407, as the exclusive representative of all the employees in the above-described appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its place of business in Middleburg Heights, Ohio, copies of the attached notice marked "Appendix." 27 Copies of said notice, on forms provided by the Regional Director of Region 8, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. Turner's Express, Inc v. N.L R.B., 456 F.2d 289 (C.A. 4, 1972). and N.L.R.B. v. Heck's, Inc., 386 F.2d 317 (C.A. 4, 1967) both hold only that a unit majority obtained through a campaign in which supervisors play a major role is tainted. There is no evidence here that Kassovic did anything more than sign an authorization card. If Respondent's position were sound, the ease with which any employer could defeat a union would reduce the Act to a scrap of paper. As noted supra, Respondent stipulated Kassovic's card to be "valid .. for purposes of determining the majority status of [the Union ] " ss 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, recommendations, and recommended Order herein shall, as provided in Sec. 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. 27 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL bargain collectively with Teamsters Local 407 as the exclusive representative of our employees in the bargaining unit we agreed was appropriate on May 9, 1973. WE WILL NOT solicit grievances from any of our employees with a promise, either express or implied, to remedy such grievances. WE WILL NOT remedy any grievance or grant a wage increase or any other benefit as an inducement to any employee to forgo representation by the Teamsters or any other union. WE WILL NOT, in any like or related manner, interfere with the right of our employees to engage in organizational activity or collective bargaining or to refrain from such activities. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EMERY Ant FRElGfrr This notice must remain posted for 60 consecutive days CORPORATION from the date of posting and must not be altered, defaced, (Employer) or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be Dated By directed to the Board's Office, Suite 1695, Anthony J. (Representative) (Title) Clebrezze Federal Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715. This is an official notice and must not be defaced by anyone.