Baker Brush Co.

BAKER BRUSH CO., INC. Baker Brush Co., Inc. and International Leather Goods, Plastics & Novelty Workers' Union, AFL- CIO. Cases 15-CA-5909 and 15-RC-5820 November 17, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 10, 1977, Administrative Law Judge Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed an answering 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. We find merit in the exceptions filed by the General Counsel and Charging Party to the Adminis- trative Law Judge's conclusion that Respondent did not violate Section 8(a)(1) by announcing a future wage increase during the final week of the election campaign. The record reveals the following sequence of events: Pursuant to a Stipulation for Certification Upon Consent Election approved by the Acting Regional Director on November 28, 1975,1 an election was held on December 12 in a unit of Respondent's production and maintenance employees. During the week immediately preceding the election, Respon- dent distributed to employees four leaflets which, in addition to containing antiunion comments, prom- ised that wage increases would be given them in the very near future. The December 8 leaflet stated, in part: As you all know, the Federal minimum wage will go up in January of 1976. We have long planned to put a general increase into effect at that time. This decision was made before the union began its campaign here in Farmerville. It will not be changed by your vote in this election. However, if the union wins the election, the Unless otherwise indicated, all dates hereinafter are in the period November 1975 through January 1976. 2 When discussing this issue at several points in his Decision, the Administrative Law Judge erroneously characterized the complaint herein as alleging that Respondent promised its employees a wage increase 233 NLRB No. 61 discretionary increase for employees who are now at or above the minimum wage may have to be delayed until we can reach an agreement with the union on economic issues. It is our intention that we would offer the same general increase in January whether or not the union wins the election. The leaflet distributed I day before the election concluded by stating as follows: Similarly, pay increases are scheduled for the near future regardless of the results of the election. Furthermore, we commit ourselves to follow the policy of increasing our employees' pay as the productivity and efficiency of this plant improves. It is our intention that the size and timing of future increases will not be influenced by the outcome of this election; we will grant the maximum increases that are reasonable, whether or not the union wins the election. However, to be perfectly honest, we would be prohibited from unilaterally granting discretionary increases if the union won the election. We would not then be able to grant any discretionary increases until an agreement is reached. This might take months. Sometimes such bargaining has taken over a year. These are the facts about future pay increases. Do not be misled by rumors. The Union lost the election. Then, on January I- consistent with the promises it had made-Respon- dent effectuated an overall pay increase which raised to the new Federal minimum wage all employees who had been receiving a lesser amount and raised to a higher wage level the other employees who were already at or above that minimum wage rate. The record establishes, and the Administrative Law Judge found, that the wage increases which Respondent promised and later granted were a continuation of a pattern of previous wage increases granted annually in December over the past 30 years. Thus, in agreement with the Administrative Law Judge, we find that Respondent's actual grant of the increase was lawful. Apart from this, however, a clearly separate and distinct issue is raised by the timing and content of Respondent's advance an- nouncements thereof.2 As to the factor of timing, in previous years Respondent made no advance announcements con- contingent upon the Union's success in the election. We hereby correct that error. For, in fact, the complaint alleges that Respondent promised its employees in writing that they would receive a wage increase if the Union was unsuccessful. 561 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning increases to be granted its Farmerville employees.3 Notwithstanding this previous course of conduct, during the final week of the ongoing organizational campaign in 1975 Respondent circu- lated the four separate leaflets announcing the upcoming pay increases. Plant Manager John Arena admitted that these were, at least in part, motivated by the Union's election campaign. Thus, it is clear that, even though the wage increase decision itself was lawfully motivated, Respondent nevertheless used the advance announcement thereof as a campaign tool to undermine employee support for the Union. With respect to the content of Respondent's announcements, we find the message to be clear. Employees paid below the new Federal minimum would be raised by January 1, as the law required. Those already receiving pay equal to, or greater than, the new minimum would get their wage increase at the same time-but only if the Union lost the election. If the Union were to win, their raises would not take effect until Respondent and the Union reached agreement-and that could take from "months" to "over a year." Thus, in substance, Respondent promised a wage increase in the immedi- ate future, but-except as required by the Federal wage law-threatened not to implement such in- crease for an extended period of time in the event of a union victory. When the Union lost the election, Respondent-complying with the terms of its elec- tion campaign promise-granted January 1 pay raises to all employees. In finding that Respondent's wage increase an- nouncements did not violate the Act, the Administra- tive Law Judge relied on the premise that Respon- dent's assertions (in its campaign leaflets) that-if the Union won the election-it would be prohibited from unilaterally granting a "discretionary in- crease" 4 was a correct interpretation of Section 8(a)(5) of the Act. Had the January I discretionary increase not been promised in advance, we would have no difficulty in accepting, as a general proposi- tion, the Administrative Law Judge's premise. But, here, first the increase was promised and then its implementation was conditioned upon the Union's loss of the election. Contrary to the Administrative Law Judge, we find that the discretionary increase promised for imple- mentation on or about January I was, by reason of that promise, an existing condition of employment 3 The Farmerville plant had been in operation since early 1973. At other plants operated by Respondent. announcements of forthcoming wage increases have not been made dunng the past 15 years. 4 We are satisfied from the record, including the exhibits setting forth the text of Respondent's election campaign leaflets, that the term "discretionary increase" refers to the portion of the promised wage increase which is in excess of what Respondent must pay to avoid violation of the Federal minimum wage laws. which Respondent-had the Union been certified- would have been legally obligated to continue and could not alter without consulting the Union. Liberty Telephone & Communications, Inc., and Century Telephone Enterprises, Inc., 204 NLRB 317 (1973).5 Furthermore, as found by the Administrative Law Judge, the annual granting of similar wage increases had been a customary practice of Respondent through the years and, as such, was clearly a condition of employment on that basis as well. Accordingly, Respondent would not have been legally restrained from granting the promised in- crease if the Union had been certified, but rather would have had a legal obligation to pay it. This obligation arose both from Respondent's explicit promises made during the election campaign and the promise implicit by reason of Respondent's long- standing practice. Leroy W. Craw, Jr., et al., d/b/a Craw & Son, 227 NLRB 601 (1976). The Board, with Court approval, has consistently held that an employer who withholds pay raises from employees who have chosen a union as their, bargaining representative violates the Act if the employees otherwise would have been granted the raises in the normal course of the employer's business. Florida Steel Corporation, 220 NLRB 1201 (1975), enfd. 538 F.2d 324 (C.A. 4, 1976). Moreover, the natural effect of Respondent's campaign announcements was to convince employ- ees that they did not need a union in order to obtain wage increases, and, by shifting to the Union the onus for not implementing the promised wage increases when scheduled, Respondent sought to disparage the Union by conveying the impression that the Union stood in the way of the employees' prompt receipt of a higher wage. Thus, Respondent held out to the employees a benefit which, but for the Union, they would receive on or about January 1. This conduct was clearly designed to undermine, and discourage support for, the Union. Accordingly, we find that Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act and, thereby, violated Section 8(a)(1).6 2. Both the General Counsel and the Charging Party have excepted to the Administrative Law Judge's failure to find that Respondent's gift of Thanksgiving turkeys to its employees was also violative of the Act and constituted further grounds 5 See also Armstrong Cork Company v. N.L.R.B., 211 F.2d 843 (C.A. 5. 1954). 6 See Planters Peanuts, a Division of Standard Brands, Inc., 230 NLRB 1174 (1977); American Paper & Supply Company, Container Division, 159 NLRB 1243(1966). 562 BAKER BRUSH CO., INC. for setting aside the election. We find merit in their exceptions.7 It is undisputed that, during its first 2 years of operation at its Farmerville plant (1973 and 1974), Respondent gave no holiday benefits, such as turkeys, to its employees at either Thanksgiving or Christmas. Robert Lawson, a subordinate manager at Farmerville, testified that, following a supervisory meeting in late December 1974 at which he learned of the employees' dissatisfaction about receiving no holiday benefits, he sent a memorandum to the corporate president in New York stating that the employees should be given something on the two holidays the next year. No action, however, was taken to implement this proposal until October 1975-after the organizational campaign had be- gun-when Plant Manager Arena asked an employee with poultry business connections about obtaining turkeys, and then placed a telephone order for them. On November 24, in the midst of the organizational campaign, and after the petition had been filed, the turkeys were distributed to the employees. Respon- dent had made no advance announcement in this regard. Respondent, however, gave its employees no gifts whatsoever for Christmas-the election having been held 13 days prior thereto. This is of particular significance, as Respondent's sole basis for maintain- ing that its decision to give the turkeys predated the union organizational campaign was its December 1974 memo which advocated, with equal emphasis, that gifts be given for both Thanksgiving and Christmas. The record contains no evidence as to whether Respondent's corporate president ever responded to Lawson's December 1977 memorandum and does not establish that Farmerville officials had authority to grant such benefits solely on their own initiative. Moreover, despite Respondent's asserted desire-in December 1974--to counter employee dissatisfaction with the past failure to grant holiday gifts, employees were not informed of management's holiday gift proposal or of any decision to implement it until after the Union's organizational campaign had commenced some 9 months later. On the basis of the above facts, we find that Respondent's gift of Thanksgiving turkeys to its employees was violative of Section 8(a)(1). While in December of the previous year, Respondent's Farm- erville management set forth a proposal to grant future Thanksgiving and Christmas gifts, it did nothing to inform the employees of this, nor did it take any action to effectuate it until the Union's organizing efforts were in full swing. And, when it I Member Murphy would adopt the Administrative Law Judge's rationale and conclusion that the gift of turkeys at Thanksgiving was not did initiate this plan, it did so through an employee from whom, as would be expected, word of the Company's generosity spread among the other employees. The timing of Respondent's actions again clearly suggests that it was motivated by a desire to boost the Company's image and to undermine the Union's strength among the employees. Further, Respondent's failure, following its election victory, to institute its similarly firm commitment concerning a Christmas gift lends additional support to our conclusion that the gifts were but another campaign device designed to diminish Petitioner's support and interfere with the employees' Section 7 rights. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964). Accordingly, we find that Respondent's gift of turkeys to its employees during the election campaign violated Section 8(aXl) of the Act. 3. Petitioner's objections to the election encom- pass the subject matter of the violations found herein and, accordingly, as such conduct occurred during the relevant period between the filing of the petition and the holding of the election, we conclude that those unfair labor practices interfered with the employees' free choice in the election. Therefore, we shall direct that the election herein be set aside and that the Regional Director shall hold a second election to determine the question of representation when he deems that a fair election can be held. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the Act, we shall order it to cease and desist therefrom. CONCLUSIONS OF LAW 1. Baker Brush Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Leather Goods, Plastics & Nov- elty Workers' Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By announcing an imminent increase during the critical preelection period under circumstances calculated to influence employees to reject union representation, and by threatening that the an- nounced wage increase might be delayed or withheld for an extended period of time if employees selected the above-named Union as their representative, Respondent violated Section 8(a)(I) of the Act. 4. By giving its employees Thanksgiving turkeys in order to diminish Petitioner's support among its violative of the Act under the circumstances of this case and, hence, would dismiss that allegation of the complaint. 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The following employees constitute an appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(c) of the Act: All production, maintenance, shipping and re- ceiving employees employed at Employer's Ward Chapel Road, Farmerville, Louisiana, location, excluding all office clerical employees, foremen, watchmen, guards, and supervisors as defined in the Act, as amended. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Baker Brush Co., Inc., Farmerville, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Announcing wage increases under circum- stances calculated to undermine employee support for the International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, or any other labor organization. (b) Threatening that a promised wage increase might be delayed or withheld for an extended period of time to discourage support for a labor organiza- tion. (c) Giving Thanksgiving turkeys to its employees in order to undermine their support for said Union or any other labor organization. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Post at its premises in Farmerville, Louisiana, copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election held on December 12, 1975, in Case 15-RC-5820 be, and it hereby is, set aside, and that said case be remanded to the Regional Director for Region 15 for purpose of conducting a new election. [Direction of Second Election and Excelsior fn. omitted from publication.] 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a 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 NOT announce wage increases under circumstances calculated to undermine your support for the International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten you that promised wage increases may be delayed or withheld for an extended period of time in order to discourage your support for the above-named Union or any other labor organization. WE WILL NOT give Thanksgiving turkeys to our employees in order to undermine their support for the above-named Union or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. BAKER BRUSH Co., INC. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: Upon a charge filed on October 20, 1975, by International Leather Goods, Plastics & Novelty Workers' Union, AFL- CIO, hereinafter referred to as the Union, the General Counsel for the National Labor Relations Board, hereinaf- ter referred to as the Board, issued a complaint on December 3, 1975, against Baker Brush Co., Inc., hereinaf- ter referred to as the Respondent or Employer, alleging as violative of Section 8(a)( ) of the National Labor Relations Act, certain conduct attributed to company supervisors between September 17 and 23, 1975, and, as violative of Section 8(a)(3) of the Act, the discharge of employee Sandra Smith on October 9, 1975. Thereafter, on March 12, 1976, prior to the hearing herein, the complaint was amended to include additional Section 8(a)(1) allegations 564 BAKER BRUSH CO., INC. concerning specific company conduct in November and early December 1975. A timely answer to the complaint was subsequently filed by the Respondent denying the commission of any unfair labor practices. In Case 15-RC-5820, pursuant to a petition filed by the Petitioner on November 21, 1975, and a Stipulation for Certification Upon Consent Election approved on Novem- ber 28, 1975, by the Acting Regional Director for Region 15, an election was held on December 12, 1975, among the production and maintenance employees employed by the Employer at its Farmerville, Louisiana, plant.' Thereafter, on December 18, 1975, the petitioning union filed timely objections to conduct affecting the results of the election. Subsequently, on March 15, 1976, after having conduct- ed an investigation of the objections, the Regional Director issued an Order, approving the withdrawal of certain objections2 and finding that certain other objections raised substantial and material issues which could best be resolved after a hearing.3 Since the matters contained in Objections 2, 7, 10, and 12, were identical to the conduct alleged in the 8(a)(l) amendments to the outstanding complaint, the Regional Director ordered that a hearing be held in Case 15-RC-5820, and that it be consolidated with the unfair labor practice hearing in Case 15-CA-5909, for the purpose of hearing, ruling, and issuance of a decision by an Administrative Law Judge. Pursuant to said Order, a hearing was held in Farmer- ville, Louisiana before me. Shortly after the opening of the hearing, the General Counsel and Respondent entered into an informal settlement agreement covering all substantive 8(a)(1) and (3) allegations contained in the initial com- plaint of December 3. Thus, the hearing was limited to conduct alleged in the amended portion of the complaint and the specific objections to election. All parties were represented by counsel, and were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues and to engage in oral argument. Subsequent to the close of hearing, timely briefs were submitted by counsel for all parties. Upon the entire record in this case, and based upon my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence, "considered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496 (1951)), I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Baker Brush Co., Inc., is engaged in the manufacture of paint brushes and related businesses at its plant in Farmerville, Louisiana. During the 12-month period immediately preceding the issuance of complaint, the Respondent shipped goods and/or furnished services valued in excess of $50,000 from its Louisiana operations directly to points located outside the State of Louisiana, and purchased goods and/or services valued in excess of $50,000, which goods and/or services were shipped directly I The tally of ballots issued by the Regional Director revealed that the Petitioner failed to receive a majonty of the votes cast. 2 Specifically withdrawn were petitioner's Objections 1, 3. 4. 5. 6, 8, 9, II. and 13. to it in the State of Louisiana from points located outside the State. The parties admit, and I find, that Baker Brush Co., Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1I. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that International Leather Goods, Plastics & Novelty Worker's Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND CONDUCT AFFECTING RESULTS OF ELECTION A. The Issues 1. Whether, on certain occasions between November 21, 1975, the date the representation petition was filed, and December 8, 1975, certain of Respondent supervisors engaged in conduct violative of Section 8(a)(1) of the Act and conduct interfering with an employee exercise of a free and untrammeled choice in an election. 2. Whether the Respondent violated the Act or engaged in objectionable conduct by giving its employees turkeys on Thanksgiving. 3. Whether the Respondent unlawfully conditioned a future wage increase upon the outcome of the election. B. The Facts I. Alleged 8(aXl) conversations The Respondent commenced business at its Farmerville facility in July 1973. The Union initiated its organizational campaign among the Respondent's 180 employees around September 21, 1975. 4 During the period between Novem- ber 21 and December 9, several conversations allegedly occurred between company supervisors and employees. Carolyn Patterson, a wrapper and known union adherent, testified that around 3 p.m. on Tuesday, December 9, her supervisor and close friend, Dorothy Strickland, ap- proached her in the repair department and asked her if she were going to be an observer for the Union at the election. Patterson replied that she was not, that another employee had wanted to be the observer. Strickland allegedly told her that she could not think of anyone else who had worked any harder for it than she had. Patterson replied that she was not going to tell her who the other employee was, so she need not ask. Strickland, whose friendship with Patterson extended to visiting each others' home, testified that she knew that Patterson was very active in the Union, that Patterson was open about her union activities, and that on this occasion during the course of the conversation Strickland did not ask her, but stated, "I assume that you're going to be ... one of the officials in the break room," and that Patterson answered, no, that Myra Smith was. I credit Strickland's slightly different version of the incident, and, under the 3 Subject to this finding are Objections 2, 7, 10, and 12. 4 All dates hereinafter set forth, unless otherwise specified. refer to 1975. 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances, find that such does not constitute unlawful interrogation. Deborah Ann Gibson, a former employee of the Respondent employed between October and December 10, when she was involuntarily terminated by Plant Manager John Arena, testified that around 3:30 p.m. on Monday, November 24, she was called into the office to see a telephone company representative about some telephone calls. Upon leaving, she met Arena who asked to see her in his office for a minute. Arena asked Gibson whether she had signed a union card. When she replied that she did not know what a union card looked like, Arena asked her if she knew anybody passing out union cards. Contrary to the fact, Gibson told him, no. Arena then assertedly asked her how she felt about the election coming up, and she replied that she did not feel anything about it, that she probably would not even be there to vote. Gibson then went back to work. Arena emphatically denied that the conversation oc- curred, or ever having a meeting with Gibson at any time prior to her discharge. He also denied questioning her or any employee concerning union activity, or at any time threatening any employee concerning union activity. Contrary to Gibson's testimony, Plant Foreman Mickey Strother, who was present on the occasion of the telephone representative's visit and conversation with Gibson, and Deborah Taylor, Arena's secretary, both testified that the telephone interview with Gibson occurred early in Novem- ber, and not on November 24. Further, Strother testified that Arena was not in his office at the time and both Strother and Taylor testified that, upon finishing her conversation with the telephone man, Gibson did not enter Arena's office but, rather, accidently bumped into an office machine against the wall and walked on through the break room door and into the plant. I found Strother and Taylor to be straightforward and truthful in giving their testimony. I was unimpressed with Gibson's demeanor, particularly on cross-examination, and, contrary to her statement, felt there might well have been some ill feelings toward Arena as a result of his having fired her. I credit Arena's denial of that attributed to him by Gibson and find that such did not occur, either on November 24 during the "objections period" or at any time. Gibson testified to a second union conversation with a supervisor, this allegedly occurred on Monday, November 24. According to Gibson, while at her machine she was asking some girls if they knew anything about the Union. Her supervisor, Linda Gunter, overheard her and asked her to come to her desk, stating that she did not want to embarrass anybody in front of other people. Gunter then told Gibson that she had overheard her asking about the Union and stated that she should not let John (Arena) hear her talking about the Union, because it might cost her her job.5 When Gibson asked why, Gunter, in referring to the upcoming election, said: "if the Union wins ... the plant would close down, which means a lot of people would lose their jobs." In reply to a leading question by counsel, S Three times thereafter on cross-examination, however, in restating her testimony she testified that Gunter said "because it would make him mad." I Kennedy, in his affidavit dated January 8, 1976. also placed this Gibson further testified that Gunter asked her how she was going to vote, adding that she did not have to tell her if she did not want to. After first telling her it was none of her business, Gibson told her that she probably would not vote at all. Gunter, when confronted with Gibson's testimony, positively denied each statement or query attributed to her by Gibson. Gunter, who now lives in Alaska and who left the Respondent's employ in January 1976, impressed me with her candor while testifying. I credit her denial of Gibson's uncorroborated assertions. Michael Kennedy, another former employee who also worked under Gunter's supervision, testified that on Tuesday or Wednesday before the December 12 election, around 2 p.m., Gunter was taking count on the boxes. When she approached Kennedy at his glue machine, Kennedy opened the conversation by saying, "Well, it looks like the election is this Friday." Gunter asked Kennedy how he was going to vote, and Kennedy replied that he was not going to tell anybody how he voted. Gunter then said, "Well, you know how your wife is going to vote." Kennedy replied that his wife votes the way she feels, and he votes the way he feels. Gunter then followed with, "Well, you know we're going to win," and, upon leaving, "keep up the spirit." Gunter categorically denied questioning Kennedy in this regard and testified that the conversation to which he referred took place about 2 weeks before the election,6 and that, on this occasion, Kennedy asked her if she was going to vote for the Union. Gunter, a little perplexed, replied, no, that she was a supervisor and part of management, and could not vote at all. Kennedy kind of laughed, and Gunter took her count and left. Based upon my confidence in Gunter as a truthful witness and a lack of corroboration of that attributed to her by Kennedy, I credit her version of the incident and find no violation of the Act. 2. Conferring benefits and announcing wage increase a. Thanksgiving turkeys On Thanksgiving 1973, the first year the Farmerville plant was opened when the Employer had 15 to 18 employees, and on Thanksgiving 1974 when the plant employed 50 to 60 employees, the Respondent did not give turkeys to its employees. It had been a practice, however, for many years at Respondent's New York plant to give turkeys at Thanksgiving. Shortly after Christmas 1974, during the course of a supervisors' meeting, it became known that the employees were quite upset that they had not received something from the Company for Thanksgiv- ing or Christmas, a practice which apparently was traditional among merchants and other companies in the area. A decision was made at that time by two plant managers, Robert Lawson and John Arena, that "come 1975 we were going to do something." By memorandum dated December 31, 1974, to the Respondent's president, conversation as 2 weeks before the election, but repudiated this on the witness stand. Kennedy was fired by the Company on January 2. 1976. 566 BAKER BRUSH CO., INC. Stuart Shulman, Lawson informed him that "After the bad reaction of the employees to the fact they did (not) receive anything for Thanksgiving or Christmas, it is most important to moral [sic] that we give a ham or turkey for Thanksgiving and something appropriate for Christmas next year. The people in this area are very gift oriented and are use to the custom of the Boss giving gifts at the holidays." Around the middle of October, having learned that the family of one of his employees, Wayne Feazel, was involved in the poultry business in El Dorado, Arkansas, Arena asked Feazel if he could purchase some turkeys for the Company. Feazel told Arena the name of the company and who to get in touch with. On October 23, Lawson placed a telephone call to El Dorado, ordering turkeys for the Company. Subsequently. on Friday, November 21, Lawson again called El Dorado to firm up delivery of the turkeys for early the following Monday morning, November 24. On Monday, 180 turkeys were delivered to the Company and that afternoon in the break room around 4:30 p.m. they were distributed by Arena and Lawson to all the employees along with a Thanksgiving card. While no announcement was made concerning the company decision to give away turkeys, word got around that turkeys would be given to each employee. Under the Supreme Court's decision in Exchange Parts7 it is an unfair labor practice for an employer to confer economic benefits on its employees for the purpose of inducing them to vote against the Union, and, as held by the Court, the issue in such cases is one involving the company's motive. As subsequently reasoned by the Fourth Circuit in J. P. Stevens,8 the question is whether there is substantial evidence to support a finding that the employer's intent in granting the benefit or in timing the announcement of the granting of the benefit was to restrict its employees' freedom of choice by giving them cause to infer that the benefit might be withdrawn or future benefits withheld should they select a union to represent them. In the case at bar, the decision to give employees turkeys on Thanksgiving 1975 was made the prior December, well in advance of any union activity at the Respondent's plant. In Oxco Brush Division of Vistron Corporation,9 the Board was confronted with a similar situation where the employer decided in August to confer holiday pay upon employees not previously covered. A union representation petition was filed in October and the first notice to employees conferring the additional holiday benefits was made the week prior to Thanksgiving, the first holiday to which the new policy was applicable. The Board overruled the Union's objection, stating therein that: It is true that the announcement was not made until after the petition had been filed and the election scheduled, and at a time when the election was only 3 weeks away. But it is undisputed that the decision, which affected other plants as well, was actually made final long before the employer had any indication of 7 N.L.RB. v. Exchange Parts Company, 375 U.S. 405 (1964). J. P. Stevens and Companry. Inc. v N.L.R.B., 461 F.2d 490 (C.A. 4, 1972). union interest in the plant. Moreover, the announce- ment itself made no mention of the union or of the pending election. The Board has long adhered to the rule that "An employer, in deciding whether to grant benefits while a representation election is pending, should decide that question as he would if the Union were not in the picture. On the other hand, if an employer's course of action is prompted by the union's presence, then the employer violated the Act whether he confers benefits or withholds them because of the union." 1 On the record herein, I find nothing to suggest a causal connection between the Respondent's decision to give Thanksgiving turkeys and the union activity at the plant, nor am I able to find that the Respondent's conferral of Thanksgiving turkeys was undertaken with the express purpose of infringing upon the employees' freedom of choice or was calculated to interfere with the results of the election. I find that the evidence fails to support the complaint allegation that the Respondent conferred bene- fits upon its employees in an effort to induce said employees to abandon support of the Union in violation of Section 8(a )() of the Act. b. Announced wage increase The record reveals that it has been customary through the years for Baker Brush Company to grant annual wage increases, usually in December, to its employees who are not covered in bargaining units, and that such practice existed with respect to its plant in New York, its plant in St. Paul, its two plants in Vermont, and at Farmerville during its 2-year existence in 1973 and 1974. In 1973 the Respondent granted an increase to its employees in December, and in 1974 an increase was granted in three stages. During the first week in December 1975 a number of Respondent's supervisors reported to Arena that they were being questioned by employees about what their wage status was going to be with the minimum wage change in January. About the same time, December I, the Union distributed a flyer to Respondent's employees raising the matter of an increase in wages and charging the Respon- dent with not keeping up with the cost of living. Between December 5 and I I the Respondent circulated four notices to its employees counteracting the union campaign propa- ganda, and at the same time, alluding to future wage increases. By announcement on December 5, the Respon- dent stated in pertinent part: We have every intention of raising your wage rates in the very near future-whether a union represents you or not. However, we can't continue to increase your wage rates in the future unless we can continue to grow. In a major way, our growth depends upon the loyalty of our customers. Our customers depend almost exclusive- ly upon us as the source of their paint brushes and rollers. We need to assure them that we can continue to 9 171 NLRB 512 (1968). io The Great Atlantic & Pacific Tea Company. Inc., 166 NLRB 27. 29. fn. 1 (1967). 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supply them regularly and without the disruptions caused by strikes. In the event of a strike, many of our customers would surely leave us for other suppliers. On December 8, a second notice in part reflected that: The Union has been stating that they can guarantee that pay will be going up if they win the election. We believe that this propaganda is designed to mislead you. As you all know, the Federal minimum wage will go up in January 1976. We have longed planned to put a general increase into effect at that time. This decision was made before the union began its campaign here in Farmerville. It will not be changed by your vote in this election. However, if the Union wins the election the discretionary increase for employees who are now at or above the minimum wage may have to be delayed until we can reach an agreement with the Union on economic issues. It is our intention that we would offer the same general increase in January whether or not the Union wins the election. Several days later, on December 9, a third notice circulated by the Respondent stated in pertinent part that: The Union has been promising a pay increase if they won the election. This is more union propaganda. A pay increase is scheduled for the near future whether or not the Union wins. The size of the increase will not be influenced by the outcome of the election. Again on December 11, a fourth notice contained the following: We have just been told that there had been rumors spread that this plant will close down if the Union won the election, or that pay increases would be delayed or diminished. However, no one has been authorized to speak for management on this important subject. Let us set the record straight. Similarly, pay increases are scheduled for the near future regardless of the results of the election. Further- more, we commit ourselves to continue to follow the policy of increasing our employees' pay as the produc- tivity and efficiency of this plant improves. It is our intention that the size and timing of future increases will not be influenced by the outcome of this election; we will grant the maximum increases that are reason- able, whether or not the Union wins the election. However, to be perfectly honest, we would be prohibit- ed from unilaterally granting discretionary increases if the Union won the election. We will not then be able to grant any discretionary increases until an agreement is reached. This might take months. Sometimes such bargaining has taken over a year. These are the facts about future pay increases. Do not be mislead by rumors. The first of January, consistent with past practice, the Respondent put the wage increase into effect, increasing all employees to the new minimum wage, and raising all others who were at or above the new minimum to a higher wage level. As alleged in the complaint, the General Counsel asserts that "On or about December 5 and 8, 1975, Respondent, at its Farmerville, Louisiana, facility, promised its employees in writing a general wage increase if the Union was successful in the election." The Respondent admits the promise of the wage increase but denies that such was contingent upon a union victory. As to the issue of announcing the wage increase, the Respondent admits that, in granting wage increases in 1973 and 1974, there had been no formal announcement made, but, according to Arena's credible testimony, justified the decision to announce the 1975 increase on the twofold ground that there had been so many questions asked by employees concerning pay increases at that time and because the Union had raised the issue of pay raises in connection with its campaign propaganda. The credited testimony of both Arena and Lawson indicates that they were commonly aware the prior June of the necessity of a general wage in January because the imposition of a higher minimum wage would have the effect of placing new employees on about the same pay level as the older, experienced employees. The decision as to how the increase would be implemented was made by Arena and Lawson a week or so before the announcement, after conferring with the Company's attorney concerning its legality. The fact that the Respondent deemed it necessary to issue several notices in announcing the wage increase is explained on the face of the notices themselves. Inasmuch as the 1975 raise appears to be but a continuation of an existing practice, I find nothing violative of the Act in the Respondent's announcement of a general wage increase. As to the real question raised by the complaint allegation of whether the Respondent's promise of an increase was made contingent upon the Union being successful in the election, a perusal of the announcements reveals that such is not the case. As to a general wage increase, the Respondent made it quite clear to its employees that such would be forthcoming "whether a union represents you or not," that the decision as to a general increase "will not be changed by your vote in this election," that "It is our intention that we would offer the same general increases in January whether or not the Union wins the election," that "pay increases are scheduled for the near future regardless of the results of the election," and that "The size and timing of future increases will not be influenced by the outcome of this election." The sole ground upon which the General Counsel must rely in support of his position is the pronouncement to the effect that, "If the Union wins the election, the discretionary increase for employees who are at or above the minimum wage may have to be delayed until we can reach an agreement with the Union on economic issues," and "we would be prohibited from unilaterally granting discretionary increases if the Union won the election. We would not be able to grant any discretionary increases until an agreement is reached. This might take months. Sometimes such bargaining has taken over a year." In essence, what the Respondent announced to its employees is that they would receive a general wage 568 BAKER BRUSH CO., INC. increase whether the Union won or not, but that discretion- ary wage increases would have to wait on an agreement with the Union should the Union win the election. This, in no way, may be equated to the assertion that the promise of a general wage increase was made contingent upon the Union winning the election. As convincingly argued by the Respondent, the Company's statement that unilateral discretionary wage increases could not be granted should the Union win the election until an agreement could be negotiated with the Union concerning wages is nothing more than a correct interpretation of the effect of Section 8(a)(5) of the Act. Further, its statement that this could take months and that sometimes such bargaining has taken over a year constitutes a prediction as to what might occur and a statement of an economic fact, both, I find, protected under Section 8(c) of the Act. I find that the General Counsel has failed to prove its complaint allegation that the Respondent violated Section 8(a)(l) in announcing to its employees a general wage increase. IV. THE OBJECTIONS TO ELECTION As heretofore noted, Petitioner's objections to election before me for resolution are Objections 2, 7, 10, and 12. Objection 2 reads: The employer questioned employees at length in private conversations as to the manner in which those employees would vote at the election. The record testimony relied on to support this objection appears to be that of Gibson and Kennedy attributing to Gunter such interrogation. Based upon the evidence discussed herein relating to alleged 8(a)(1) conduct, and specifically my adverse findings as to the credibility of Gibson and Kennedy and for reasons expressed in finding no unfair labor practices in this regard, I find that the Employer did not engage in the objectional conduct asserted, and shall recommend that Objection 2 be dismissed. Objection 7 reads: The employer promised a wage increase in the immediate future but threatened not to provide such increase for an extended period of time, "for more than a year," in the event of a union victory. For reasons expressed above in finding no unfair labor practice as to the complaint allegation in this regard, I further find that the Employer's promise of a wage increase contains no threat to withhold such an increase in the event of a union victory. I shall recommend that Objection 7 be dismissed. Objection 10 reads: The employer provided additional new benefits to the employees prior to the election, including providing free turkeys on the day before Thanksgiving-for the first time since the opening of the plant-and promising (and actually providing) an alaborate champagne party in the event of the union defeat. As to the assertions contained in Objection 10, 1 find them to be unsupported by the evidence and without merit. No evidence of any kind was offered in connection with the allegation pertaining to "additional new benefits" or to a champagne party. For reasons set forth above in finding no unlawful conduct on the part of the Employer with respect to providing its employees with turkeys on Thanksgiving, I shall recommend that Objection 10 be dismissed. Objection 12 reads as follows: By placing town police at positions where union representatives distributed literature, the employer created the false impression that union representatives were law violators. The record reveals that, on numerous occasions during late November and early December, Raymond Davis and Charles Calhoun, organizers for the Union, engaged themselves in passing out leaflets on a narrow road next to the Respondent's plant between 4 and 4:45 p.m., as the shift changed. It was customary for Davis to station himself at one end of the service road and Calhoun at the other, and hand out leaflets to those cars that would stop as they either arrived for work or left the plant at the end of their shift. On December 4, because he had received a number of traffic complaints from employees over a period of time, as well as a complaint from Davis himself concerning a threat to his safety, Deputy Marshall George Cothran, on patrol with Deputy Sheriff Robert Taylor, went out to the plant to talk with Davis. After introducing themselves, the law officials told Davis that they were not there to harass them or to interfere with their business in any way, but that they had had complaints from people to the effect that he had stepped in front of vehicles and stopped traffic. Cothran told Davis and Calhoun that he was under the impression that the two parallel side roads next to the plant were dedicated streets (town roads) and that he intended to check with Lawson, and that if this were so, he wanted Davis to move over there where he would have more room to operate. The two police officers then went into the plant and met with the two plant managers, Lawson and Arena, and with Horace Thompson, company attorney. Cothran explained to Thompson and the company officials about the complaints which he had received and indicated that he had already talked to Davis about them. Cothran ex- plained that the officers were not there to harass Davis and did not want to interfere with his business. Upon learning that the two streets were town streets and not company property, Cothran told Thompson and Lawson that he wanted to move Davis up there where he would have room to walk without blocking traffic. Lawson said that this would be fine with him as long as he stayed off company property. The police officers accompanied by Thompson then went back outside and met with Davis and Calhoun. Cothran indicated to Davis that the two roads were public streets, and that he should move his handbilling up there, and explained to him why they were asking him to move. Cothran told Davis that they were merely trying to keep 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the peace and that he did not want either him or the people at Baker Brush to be harassed. Davis told Cothran that he wanted to hand out leaflets on 4 more specific days prior to the election, and agreed to move from the rear of the plant to the side of the plant where the roads were wider. Cothran informed Davis that he would work an officer with him on each occasion, that if they then got complaints they would know whether they were justified or whether somebody wasjust trying to cause problems. The following afternoon around 4:15 p.m., Cothran, in civilian clothes and in his civilian vehicle while off duty, went out to the plant and worked with Davis on the west end of the plant where the majority of the employees came out. Another officer, Rushing, went to the east end with Calhoun. There was no interference with traffic and nobody bothered the union officials. When the shift change was over, approximately 20 minutes later, Cothran talked to Davis and informed him that, if he conducted himself in the same way as he had that day, he did not see any reason for them to be out there, and that the police officers would not be back. This was the last and only time the police officers appeared at the site of the union handbilling. This account of the entire matter is based upon the credited testimony of Deputy Marshall Cothran and Deputy Sheriff Taylor, both of whom I found to be most reliable witnesses. While Davis' version differs in some particulars with that of the law officers, the variance I find on crucial matters is of little moment. To the extent that there is a conflict, however, I credit Cothran and Taylor."t The very limited question presented is whether, on these facts, the Employer created the false impression that the union representatives were law violators. There is no assertion that the Employer or the police interfered in any way with union communications, or that the police at any time intimidated or coerced employees or otherwise injected themselves into election issues or union matters generally. To uphold the Union's objection in this regard, one must find on the credible evidence that officers Cothran and Taylor were acting as agents for the Employer, and that, in doing so, by their mere presence during the handbilling on this occasion they misrepresent- " Davis testified that during the conversation with attorney Thompson, the two officers, and Calhoun, Thompson insinuated that the reason the police were there was because the Company paid taxes there and he did not. Calhoun, although present during the entire heanng, was not called upon to ed to the employees that the union representatives were law violators. I am not prepared to so find. The crucial facts as established by credible evidence reflects that Cothran, in initially approaching Davis, did so on his own and in line of duty based upon employee complaints that in the course of handbilling on the narrow street Davis had blocked employees' egress from the plant parking lot, in one instance requiring a lady to leave the road to avoid him. After initiating the visit to the plant, and, on his own, ascertaining that another road, just as convenient for Davis but much wider, was a public road, Cothran requested that Davis and Calhoun make the change. Thereafter, on one 20-minute occasion, Cothran, in civilian clothes and in his civilian pickup truck, and a deputy, stationed themselves near the two union officials while they passed out handbills. On these facts, I find neither an agency relationship nor a factual misrepresenta- tion. As enunciated by the Board in Hollywood Ceramics Company, Inc., 12 "an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth...." Thus, I find without merit the Petitioner's Objection 12, and shall recommend that it be dismissed. On the total record, I find that the Employer has engaged in no conduct warranting the setting aside of the election. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW i. Baker Brush Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] testify. Both Cothran and Taylor denied that attorney Thompson made any such statement. I credit their denial. 12 140 NLRB 221, 224(1962). 570