Franklin Park Mall, Inc.

FRANKLIN PARK MALL, INC. 21 Franklin Park Mall, Inc. and Service Employees, Local No. 3 affiliated with Service Employees Internation- al Union, AFL-CIO-CLC. Cases 8-CA-7469 and 8-RC-8874 June 26, 1974 DECISION, ORDER AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On March 29, 1974, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief, and a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. charge filed on February 1, 1973, by Service Employees International Union, AFL-CIO, Local No. 3, herein called the Union, a complaint issued on March 16, 1973, against Franklin Park Mall, Inc., herein called the Respondent or the Company. In the representation case a petition for an election was filed by the Union and a Board-conducted election was held on January 25, 1973; the Board thereafter ordered a hearing upon the Union's objections to the Company's conduct affecting the results of the election.' The two cases were joined for single hearing, which was held on January 30 and 31, and February 1 and 19, 1973, at Toledo, Ohio. The issues are whether the Respondent vio- lated Section 8(a)(1) and (5) of the Act, and whether it improperly interfered with the conduct of the election. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Respondent is a Maryland corporation engaged in Toledo, Ohio, in the operation of a shopping center, which includes the rental of its facilities to corporations engaged in interstate commerce. Annually, in the course of its busi- ness, the Respondent receives in excess of $100,000 in gross revenues from the rental of such facilities, of which in excess of $25,000 is received from tenants who annually ship goods valued in excess of $50,000 from Ohio locations directly to points located outside the state. I find that the Respondent is engaged in commerce within the meaning of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Franklin Park Mall, Inc., Toledo, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election conducted herein on January 25, 1973, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] i Inasmuch as we agree with the Administrative Law Judge's finding that the unfair labor practices committed by the Respondent were not so serious and-pervasive as to preclude the holding of a fair second election, we find it unnecessary to pass upon his findmg that the Union possessed a majority of authorization cards from the employees in the unit at the time of its demand for recognition and bargaining. DECISION THOMAS A. Ricci, Administrative Law Judge: This is a consolidated proceeding, joining a complaint case, 8- CA-7469, with a representation case, 8-RC-8874. Upon a II THE LABOR ORGANIZATION INVOLVED I find that Service Employees , Local No. 3, affiliated with Service Employees International Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. A Picture of the Case In December of 1972 the Union obtained authorization cards from some of the employees of the Respondent, a maintenance and cleanup group, and took steps to become their collective-bargaining agent. It demanded recognition as exclusive representative, which was refused, and filed an election petition with the Board. It lost the election and then filed objections and a refusal to bargain charge. According to the complaint, and the objections, between the time of the demand-about December 13, 1972-and the date of the election-January 25, 1973, and thereafter, the Respondent restrained and coerced the employees in violation of Section 8(a)(1) of the Act; part of this conduct, as charged in the Union's objections, also improperly interfered with the elec- tion. The complaint also alleges that the unfair labor prac- tices committed by agents of the Respondent were so 1 The name of the Union was changed after issuance of the complaint and is now as set out in the caption to this Decision. 212 NLRB No. 13 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pervasive and substantial as to make it impossible to hold a fair new election now, that any expressions of attitude that might be voiced in secret ballot by the employees now would be unreliable in consequence of the threats and the coercive conduct to which they have been subjected. For these reasons the theory of complaint is that the Respondent must be found to have unlawfully refused to bargain, in violation of Section 8(a)(5), and must therefore be ordered to bargain now without any further processing of the repre- sentation proceeding. It seems clear on the total record that the principal issue involved, if not the only question of true import, is whether what unfair labor practices may have been committed were of such a nature as to justify an immediate affirmative bar- gaining order. A representative of the Union entered a for- mal appearance on the first day of the hearing, but the Union did not otherwise participate in the consolidated hearing. The General Counsel called an agent of the Union as one of his witnesses, but he only testified to the fact he wrote a letter of demand to the Company. No witnesses were called by anyone in support of the objections. Under the scheme of the statute as a whole the General Counsel, as the representative of the Regional Director, stays neutral as to the merits of objections filed in representation cases. Whether or not a second election should be held in any representation case, therefore, is no concern of his. This means that in this case, the Union has very little, if any, interest in a new election, if only because it ignored the opportunity afforded by the Regional Director's decision to hold a hearing on its objections. It is also strong indication that even assuming there were violations of Section 8(a)(1) requiring the posting of notices by the Company, the Union cares little about going to a new election now. And perhaps its apparent indifference to anything short of an out-and- out order to bargain is explained by other objective consid- erations. In a unit of 17 employees-2 of the original 19 were guards and therefore to be excluded from the count-9 signed authorization cards in favor of the Union before the Company's refusal to bargain and insistence upon an elec- tion. All nine of these voluntarily quit the Respondent's employ shortly thereafter. B. Format The grouping of employees which the Union sought to represent was a maintenance department, in which the men worked at cleaning the mall, making minor repairs on such things as light switches, or on damages to the physical prop- erty, grounds-keeping outside the building, and performing security functions Most of the men worked at night, when the mall is closed to the public, and a few during the day. On December 13, 1972, the Union delivered a letter to the Company asserting it represented a majority of these em- ployees, demanding recognition and collective-bargaining rights, and offering to submit its cards to a card check. The letter described the unit as "janitorial, maintenance, and yard maintenance, excluding officers, office help, guards and supervisors." The Company responded by letter dated December 15, denying recognition and suggesting that the Union establish its asserted majority status via a Board election. The Union filed its petition on December 18, and on January 4 the parties met in the Board's Regional Office, where they agreed to a consent election. I find, as the parties then agreed, that the following unit is appropriate for pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. All maintenance employees, porters and janitorial em- ployees but excluding all office clerical employees and professional employees, guards and supervisors as de- fined in the Act. I also find that on December 15, 1972, and thereafter, the Respondent refused to bargain with the Union. The parties stipulated that at the time of demand and refusal there were 19 persons at work within the mainte- nance group. At the hearing the General Counsel argued that of these, three must be excluded from the test of majori- ty; Carrico and Granger because they were guards, and Stacey on the ground he was a supervisor. The Respondent would include all three. I find that Carrico and Granger were guards and therefore properly not includable within the unit of essentially nonguard employees. Their duties were to look after security, they expelled from the mall any member of the public whose activities were adverse to the Company's proper activities, they were expected to call the police whenever a situation seemed aggravated, they pa- trolled to check on locked doors at night, and they protected the property from damage by the public. They wore regular guard uniforms, with a suit patch reading "Security, Frank- lin Park Mall," and a badge reading "Special Police, State of Ohio." Their status as guards is not extinguished by the fact they were also expected to pick up litter as they pa- trolled, do some regular maintenance work when time per- mitted, and even paint, repair walls, or shovel snow in the unusual situations when such help was needed. Exclusion of Carrico and Granger reduces the total num- ber of employees in the unit to 17. Of these, nine signed union membership cards. The cards, all received in evi- dence, are clear and unequivocal applications for member- ship and authorization for immediate and regular representation in collective bargaining. There is no evidence worthy of comment casting any doubt upon the intention of any of these nine employees to authorize the Union to act as their bargaining agent. Four of the cards are dated De- cember 7, three December 8, one December 10, and one December 13. I find that on December 15, 1972, when the Respondent rejected the Union's demand for recognition, the Union represented a majority of the employees in the appropriate bargaining unit. The status of Stacey, whose alleged supervisory standing was disputed, is therefore now a mooted question. When an assistant manager named Barry left the Company early in September of 1972, Stacey was put in charge of mainte- nance. A notice was posted to that effect. Exactly what was written there is not quite clear. One witness said it called him "their maintenance supervisor"; another recalled the words as saying "Stacey was taking over as supervisor"; a third testified the notice said "Stacey would be responsible for. . . . Ordering any special assignments that had to be done or working overtime or something like that"; and a fourth witness that it said Stacey "would be taking over FRANKLIN PARK MALL, INC. 23 maintenance." Stacey had been a daytime security guard. In September he went to nights, working from 11 p.m. to 7 a.m., normally. He went from hourly pay to salary, and stopped punching the timeclock; he was no longer paid for overtime. At night he used to check the doors to see that they remained locked, but essentially he did the same work on a full-time regular basis as the other night shift mainte- nance men-cleaning, including the toilets, repairing what- ever needed attention, and even shoveling snow.' The test of a man's supervisory status turns on what he does while at work, the level of authority he exercises on behalf of the employer over the rank-and-file. Several wit- nesses said they deemed themselves "responsible" to Sta- cey; one said he felt responsible to Manager Duffy, and not Stacey. When Stacey arrived for work at night he found a schedule of work hours for the men on the night shift al- ready made out, and a note from Manager Duffy listing any special chores that had to be looked after. All the witnesses agreed that they normally did their assigned work without direction by Stacey, and that he only told them what to do when there were unusual or special things that had to be done. Stacey checked their timecards after the shift and noted they had worked as scheduled; whenever any man did work not appearing on the schedule, he noted the fact on the card and left the matter for Duffy to approve or not. If a man wanted to leave early because he was not well, or had an illness in the family, he let the man go; he said at the hearing that if he did not approve and they left anyway, there was nothing he could do about it. He had no authority to discipline anyone, and he never did that. If a man did anything wrong, like drinking on the job, he only made a note to advise Duffy of the fact. He had nothing to do with the pay of the men., One man testified that when looking for work in September he spoke to Stacey, that Stacey ex- plained to him what the work was all about and checked what hours the man could work-the applicant being a student, and that he started to work that very night without speaking to anyone else in management. Stacey recalled he did speak to the new man, but added he then told Duffy about the applicant, adding what he thought of him, and that it was only after Duffy considered the matter and di- rected him to put the man to work, that he told him to report for duty. The fact Stacey was salaried and not hourly paid, the fact some employees thought he was a supervisor, the fact he checked their timecards, and the fact he was a conduit of management passing some special instructions to them, are indicia of supervisory status. Alone, and without regard to other record facts, they were not sufficient to fit a man into the statutory definition. He really had nothing to do with hiring and firing, he had nothing to do with setting wage rates or changing them, and his instructions about work were routine in nature. But the statute speaks of "responsi- ble" direction, and "effective" recommendations. As stated, Stacey's status is now moot in this case. Were it necessary to decide, I would find he was not a supervisor as defined in the Act. C. Violations of Section 8(a)(1) The acts listed in the complaint and said to have coercive- ly restrained the employees in their exercise of the statutory freedom of choice in the matter of choosing or rejecting the Union as collective-bargaining agent, substantially fall into two categories: (1) grants by the Company of valuable things to the employees-Christmas bonuses of $8, $10, and $11 to a number of men, a raise in hourly rate to one man, promises of future raises, and quicker availability of equip- ment necessary to do the jobs-new or better mops and brooms, cleaning soap, repair of the floor buffing machine, replacement of waste receptacles, painting supplies, etc.; (2) statements by the manager that the Company could not, or would not, appraise the employees' merits for periodic rais- es because of the pendency of the question concerning rep- resentation raised by the Union's representation petition. Manager Duffy was the sole spokesman for the Respon- dent, the man whose words are said to have constituted the unfair labor practices which now make it impossible to hold a fair election. Before deciding, on the total record, just what it is he said that had such a permanently debilitating effect upon the employees, and just what it is he did that he should not have done, some observations upon the nature of violations of Section 8(a)(1) of the Act are in order. Indeed, such comments are necessary here because the heart question of the case turns upon how pervasive, how seriously substantial, were the unlawful acts committed by the Respondent. The determining rule of law is that enunci- ated by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969). It says that when an employer refuses to bargain and then proceeds to commit unfair labor practices, you order an election, or a new election, when the unfair labor practices are minor, but you order immediate bargaining, without an election, when they were major. The line of demarcation does not separate those cases where no unfair labor practices are committed from those where vio- lations of the Act are found. Rather, it deals only with cases where unfair labor practices have occurred, placing the mi- nor violations cases in one class and the major violations cases in the other. Apart from the fact Duffy ordered new mops, brooms, and soap for the employees so that their lives while at work at night might be a little easier, all of the remaining unfair labor practices touch upon a single princi- ple of Board law. An employer faced with a petition for representation sta- tus filed by a union, or a Board election in the offing, is nevertheless privileged to continue his business as usual, to give whatever periodic raises he always gave, to evaluate employees for merit increases-and give them-in accor- dance with established practice, or to keep giving Christmas bonuses as of old. The Board has repeatedly dismissed com- plaints charging illegal granting of benefits during the crit- ical period on the very grounds that the employer was doing what he had always done. Thrift Drug Co., 167 NLRB 426. The other side of this coin then holds that when an employer has an established practice of giving periodic raises, or eval- uating employees at fixed intervals for possible merit raises, he must adhere to his practice-petition or no petition, pending election or no pending election, and if he departs from his custom because of the question concerning repre- sentation then in the air, he violates the statute by his refusal to grant the raise, or by his refusal to consider requests for raises, as though there were no union organization cam- 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paign in the picture. Dodson 's Food Market, Inc., d/b/a Dodson IGA Foodliner, 194 NLRB 192 (1971). Experience has shown that in the practical application of these two interrelated rules of law the employer very often finds himself in a difficult if not impossible position. A raise given during the very period when the Company is cam- paigning against the Union-as is its right and indeed as this very Respondent was doing via a letter to its employ- ees-immediately is viewed asprima facie proof of an intent to bribe, and an unfair labor practice charge is filed. The employer is then put on the defensive; if in fact he had only implemented an old practice, sometimes he convinces the Board investigator and the charge against him is dismissed without further ado, and sometimes he must go to teal to prove his point and win final vindication before the Board. If he hesitates,2 and chooses to avoid even the risk of a possible litigation, his statement to his employees that de- spite past practice they must now await resolution of the question concerning representation, or the "union ques- tion," or "this union business," is understandable. Of course the test of what is coercive upon the employees, what there- fore constitutes a violation of Section 8(a)(1) of the statute, does not depend upon the good or bad faith of the employ- er, but rather upon the Board's expert conclusion of what the necessary effect of management's conduct is upon the employees.,The point is emphasized here nevertheless, be- cause this rational explanation of an employer's election to hold his hand in such a situation is as likely to arise in the employee's mind, as well as in mine and in that of the Board. When management conveys the thought it is fear of unjusti- fied prosecution that motivates his deferment of periodic raises, the sense of punishment for union activities is less- ened in the minds of the employees. Query: Should such an unfair labor practice be placed in the minor category- those which do not warrant an order to bargain without an election under the rule of Gissel-or in the major category of the "aggravated" kind of misconduct by the doubting company which refuses to bargain without a Board ballot- ing? John Sheldon, vice president and general manager, said it is this Company's established policy to review every em- ployee 6 months after hiring for possible merit wage in- crease, to review each one again after 6 more months, and then to do the same at 12-month intervals. A number of employees at work between the Union's demand for recog- nition on December 13 and the time of the election on January 25, and who had been at work over 6 months, or who had not been considered for merit raises although the policy period had passed, testified that they asked Manager Duffy for a raise during that period. Duffy refused every man's request. Some of the witnesses were precise in their testimony as to what the manager stated to be the reason for his then position, some vacillated, and some simply were not clear. The collective testimony of the former employees who 2 The Hobson's choice is illustrated in this very case. Manager Duffy several times told employee Heaton he could not consider him for a raise "because if I gave you a raise during all of this election thing, that they could come back and say to him that he bribed me ' ." The complaint calls this an unfair labor practice. After a while Duffy yielded to Heaton's importun- mgs, and gave hun a raise The complaint calls this too an unfair labor practice' spoke on this subject at the hearing clearly indicates Duffy in many of the conversations did base his refusal to act on danger of possible litigation at that moment. In some in- stances, however, at least as recalled by certain witnesses at precise points in their testimony, he did not bother to spec- ify his such concern, but simply gave assurance they would get the raises once the union was out of the way. The possi- bility that some employees formed the impression future raises were being conditioned upon rejection of the Union is very positive one on this record. Duffy was present throughout the hearing but did not testify in defense. The Respondent chose to rest at the conclusion of the General Counsel's case-in-chief. Thus, Sczavanicki quoted Duffy as saying "there was nothing he could do with the raises right now until the union matter was cleared up." As Groosman recalled it: "he said his hands were tied until the union situation was settled and that he would be unable to do anything in the way of raises, not only to myself but all of the employees." According to Heaton: "his reply to me was, `Lyle, I can't give you a raise or anybody else a raise, because if I gave you a raise during all of this election thing,' that they could come back and say to him that he bribed me...." From the witness Szyman- ski: "he said that he couldn't do anything about it until the union matter was settled." Granger testified: "Mr. Duffy just explained to me that I would have to wait until the union thing was cleared up and I would have my raise." finally, Blair's recollection: "Mr. Duffy told us that he would give us our raise retroactively to when the union problem was over with...." On the authority of the Board's decision in Dodson IGA Foodliner, supra, I find that by the above statement of Duffy to these six employees the Respondent violated Section 8(a)(1) of the Act. Cf. N.L.R.B. v. Dorn's Transportation Co., 405 F.2d 706 (C.A. 2, 1969). Between the idea of automatic, neutral deferment of rais- es pending proper resolution of a union question, and an implied promise of future reward for abandoning a union campaign, the line is very thin. If the message conveyed by management, however obliquely phrased, is that the union, as distinguished from the question concerning representa- tion, must first be eliminated, the coercive intent, as well as the inevitable effect upon the employees, is unquestionable. It may be that Duffy meant to say the same thing to all the people with whom he talked about raises, but as he did not choose to give his own version of the conversation, it is only fair to take the testimony of the witnesses at face value, as they remembered things. Combs was one of the three men who received a Christmas bonus gift. He testified that after giving him the money, Duffy also told him, in the office, "that I would receive a raise, retroactive to October, after this Union thing was settled." Tigges expressed his concern to the manager over a rumor that the Company might not be able to retain part-time employees in the event the Union became the bargaining agent. Duffy assured him this was not so, and in the conversation found occasion to ask Tigges "why was I behind the union and for it and what were my grievances." When Tigges answered he was angry about not having received any raise, the manager said "raises would come after the union business was over." Recker testified Duffy asked him how he felt about the Union, and that he, FRANKLIN PARK MALL, INC. Recker, may have mentioned raises. Duffy then said "after the union blows over there would be a general wage in- crease." To Karlet s request for a raise Duffy said he "could not give me a raise because of this union business." I find that with these four statements to Combs, Tigges, Recker, and Karlet, Manager Duffy came too close to promising outright raises in return for the employees' rejec- tion of the Union, and therefore violated Section 8(a)(1) of the Act. I also find that his questioning of Tigges and Reck- er as to why they wanted a union, or what they sought thereby to accomplish, Duffy unlawfully interrogated them on the subject as to which his statutory duty was to remain neutral, and thereby also violated Section 8(a)(1). Duffy, with another company agent, had occasion to visit the Mall during the night shift on January 5, when he spoke with four or five employees. He asked them, in the general talk, about the Union, why they thought they needed a union, and what their complaints were; this according to the testimony, of course uncontradicted, of Sczavanicki and Combs. Solicitation of grievances from employees carrying on an organizational campaign and awaiting an election has been held to be both improper interference with a free elec- tion and coercive conduct in violation of Section 8(1) of the statute, and I so find here too.3 D. A Raise, Gifts, and Other Concessions Karlet once asked for a raise but was refused; he had only been at work 2 months. Shortly thereafter he was made a guard, and received a 25-cents-per-hour increase in pay. His change of status adequately justified his raise. Heaton, who had been at work since 1971, several times asked to be evaluated for merit increase but was refused. Shortly after the election, on about February 1, he was given 35 cents more per hour. Contrary to the language of the complaint, and contrary to the contention of the General Counsel, I cannot find that the granting of this raise to Heaton was an unfair labor practice. I am forced to this holding if only because I could not coherently order the Respondent to simultaneously stop giving raises and stop withholding rais- es. From the court's language in Dorn's Transportation, su- pra; "damned if you do, damned if you don't." ,The Respondent gave bonus checks in amounts varying between $8 and $11 shortly before Christmas but after learning of the demand for recognition. The gifts were also made to employees who had not signed union cards. To one man Duffy said the cash was "more handy than the turkey," and to another that "this wasn't to be construed as a Union bribe or whatever, but it was an annual thing they did ' An indication there is, but proof positive that the Christmas gift in this case was no more than continuance of an established practice, there is not on this record. There- fore, technical though it may be, I must also find that the Respondent gave something of value to the employees dur- ing the critical period of union organization, and the pen- dency of a representation petition, and thereby violated 3 Ring Metals Co., 198 NLRB No. 143, "where .. an employer who has not previously had a practice of soliciting employee complaints, institutes such a practice to coincide with an organizational campaign , the employer has engaged in improper interference with his employees' freedom of choice in violation of Section 8(a)(1)." 25 Section 8(a)(1) of the Act. Cf. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964). There is indication in the testimony of one of the General Counsel's witnesses that when Duffy went to the Mall on the night of January 5 it was because of some difficulty or other unrelated to union activities. In fact the witness said he may have called the manager to come help resolve an apparent problem of personal misconduct by an employee. The manager's talk with a group of employees turned to the Union, and he did ask them what were the complaints which caused them to try to organize . They mentioned raises, but the employees also told him they were inconvenienced by the fact cleaning equipment and materials needed in their work were not available at the proper time, or were insuffi- cient, or were shabby. The Respondent had been supplying these necessary things in an irregular way, by purchasing what was needed out of the office whenever the men report- ed their needs. Now Duffy said he would help matters by putting some petty cash money in the hands of a few men so they could quickly obtain what they needed from time to time. He gave each of three men about $20 in cash, to be accounted for to the penny, for purchases of such things as cleaning materials , new mops and brooms, and repair of the floor buffing machines . The men thereafter used this money in such manner. It cannot be gainsaid that in a literal sense Duffy by this largesse satisfied one of the demands of the employees which underlay their desire to be represented by the Union. After all, he did associate this one desire of theirs with the prounion penchant of the moment, they did tell him it ex- plained one of their impulses toward the Union, and he did, by satisfying that need, to some extent be it trivial or substantial-lesson their determination to vote in favor of the union later. I therefore must and do find, as the com- plaint alleges, that by making this petty cash arrangement as a concession to the employees , the Respondent also vio- lated Section 8(a)(1) of the Act. E. Section 8(a)(5) Were the unfair labor practices here found to have been committed so "disruptive of the election process" as to pre- clude "a fair election," under the rule of Gissel, supra? I think not. When some employees on January 5 told Duffy one of their grievances was' over the poor quality of the brooms and mops they had to work with, and the inade- quate ready supply of soap and cleaning liquids, the manag- er called this "nickle and dime stuff." He was right, of course, and they did not take issue with him; in fact at the hearing the phrase was referred to rather lightheartedly by the witnesses. This is hardly the time of history for com- menting that it would take more than facilitating the capaci- ty of employees to operate more productively in their paid work to wean them away from prounion tendencies. As to the $8 or $10 each man got for Christmas, today it probably could not even buy the traditional turkey. And the with- holding of raises-which the company was free to defer anyway on the ground the employees were not yet techni- cally of sufficient merit-it was at best a borderline unfair labor practice. There is a house-of-cards air about the whole case. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Duffy's position that he was afraid he might be charged with bribery under Board law is built up into multiple acts of interference because he said the same thing to six or seven employees. As originally issued on March 16, 1973, the complaint said nothing about the cleaning equipment made more easily available to the employees before the election. An amendment dated December 20 adds the allegation it was unlawful of the company to have "granted ... money to purchase work equipment and supplies to its employees." (Emphasis supplied.) At the hearing the General Counsel amended the amended complaint by adding that the Re- spondent also granted "new equipment and supplies." (Again emphasis supplied.) These were the same "equipment and supplies" for which Duffy gave the people money to make purchases. Words without substance add nothing, either to the complaint or the facts of record. The basic intendment of the statute is to hold elections before employers are obli- gated to recognize an exclusive bargaining agent, and the Board has times without number ordered new elections de- spite interference, and even unfair labor practices commit- ted by an employer. The election process is only bypassed where the illegal conduct precludes a fair election. And finally, there is nothing in this record to warrant an infer- ence that this Respondent will not post notices as required, and repeat whatever violations of Section 8(a)(1) have been found to have been committed in the past. Accordingly, I shall recommend dismissal of the refusal to bargain allegation of the complaint. The Objections I find the evidence is sufficient to support the objections of the Union to the January 25, 1973, election. I therefore recommend that the election be set aside and that a new one be held when the Regional Director thinks proper. CONCLUSIONS OF LAW 1. By informing employees that despite an established practice no wage increases could be granted while a union matter is pending, by promising raises conditioned upon rejection of a collective-bargaining agent, by coercively in- terrogating employees concerning their reasons for union activities, by soliciting grievances from employees during a union organizational campaign, and by giving bonuses and improved working tools during the pendency of a represen- tation petition, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 The Respondent, Franklin Park Mall, Inc., Toledo, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Informing employees that despite an established practice no wage increases could be granted while a union matter is pending, promising raises conditioned upon rejec- tion of a collective-bargaining agent, coercively interrogat- ing employees concerning their reasons for union activities, soliciting grievances from employees during a union organi- zational campaign, or giving bonuses and improved work- ing tools during the pendency of a representation proceeding. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, loin, or assist any labor organization, to engage in other concerted activities for the purpose of-collective bargaining, or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its place of business in Toledo, Ohio, copies of the notice attached hereto marked "Appendix." S Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by an authorized repre- sentative of the Respondent, 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 cov- ered by any other material. (b) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this decision, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is dismissed, insofar as it alleges a violation of Section 8(a)(5) of the Act. 4 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 findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 5 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 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all parties had the opportunity to present their evidence the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the order. The Act gives all employees these rights: FRANKLIN PARK MALL, INC. To engage self-organization To form, join, or help unions To bargain co tively through a representative of their own choosi To act together for collective bargaining or other mutual aid or pr tection To refrain from any and all of these things. WE WILL respect your rights to self-organization, to form, join or assist any labor organization , to bargain collectively in respect to terms or conditions of employ- ment through Service Employees Local No. 3, affiliat- ed with Service Employees International Union, AFL-CIO-CLC, or any representative of your choice, or to refrain from such activity, and WE WILL NOT inter- fere with, restrain, or coerce our employees in the exer- cise of these rights. WE WILL NOT inform our employees that despite an established practice no wage increase can be granted while a union matter is pending , promise raises condi- tioned upon rejection of a collective-bargaining agent, coercively interrogate our employees concerning their 27 reasons for union activity, solicit grievances from em- ployees during a union organizational campaign, or give bonuses and improved working tools during the pendency of a representation petition before the Labor Board. Dated By FRANKLIN PARK MALL, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Suite 1695, Anthony J. Celebrezze Federal Building, 1240 E. 9th Street, Cleveland, Ohio 44199, Telephone 216-522-3715.