Sun Chemical Corp.

646 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD Sta-Hi Division, Sun Chemical Corporation and Inter- national Union of United Automobile, Aerospace and Agricultural Implement Workers of `America. Cases 1-CA-11149 and 1-RC-13959 October 29, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, PENELLO, AND WALTHER On June 14, 1976, Administrative Law Judge Ben- jamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief.' 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 brief and letter and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified below. We are in complete agreement with the Adminis- trative Law Judge's conclusion that Respondent vio- lated Section 8(a)(3) and (1) of the Act when it told its employees on August 4, 1975, that they would have received a wage increase but for the initiation of the union campaign. As the Administrative Law Judge correctly found, such a gratuitous statement had the foreseeable effect of placing the onus for the cancellation of the raise on the Union and was there- fore unlawful. Colorado Seminary (University of Den- ver), 219 NLRB 1068 (1975). Unlike the Administrative Law Judge, however, we find the initial decision by Respondent on July 31, 1975, to cancel the wage increase was lawful and not a violation of Section 8(a)(3) and (1). First of all, we note that no such violation was ever alleged by the General Counsel in the complaint. Secondly, as the Administrative Law Judge himself found, Re- spondent's decision was motivated by its good-faith desire to avoid committing the unfair labor practice of granting an increase in benefits after learning of a union campaign. The cancellation of benefits under such circumstances is not a violation of Section 8(a)(1) or (3). The Singer Company, Friden Division, 199 NLRB 1195 (1972). We shall therefore modify the recommended Order accordingly. Furthermore, 1 Subsequent to filing its brief , Respondent filed a letter with the Office of the Executive Secretary in support of its exceptions we shall change the-recommended make-whole order to provide for compensation to employees for wages they lost between August 4 and October 25, 1975, rather than July 31 and October 25, 1975. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3: "3. By telling its employees on August 4, 1975, that it had canceled a raise for them because of the Union's organizing campaign, Respondent has vio- lated Section 8(a)(3) and (1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts, as its Order the recommended Order of the Administrative Law Judge as modified below-and hereby orders that the Respondent, Sta-Hi Division, Sun Chemical Corporation, Nashua, New Hampshire, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as modified below: 1. Delete paragraph 1(a) and reletter the subse- quent paragraphs accordingly. 2. Substitute the following for paragraph 2(a): "(a) Make its employees whole for the wages they lost in the period from August 4, 1975, to October 25, 1975, plus interest, as the result of its announcement on August 4, 1975, that it bad canceled a raise be- cause of the Union's organizing campaign." 3. Substitute the following for paragraph 1(c): "(c) In any other manner interfering with or at- tempting to restrain or coerce employees in the exer- cise of rights guaranteed them in Section 7 of the Act." 4. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on October 16, 1975, in Case 1-RC-13959 be, and it hereby is, set aside, and that Case 1-RC-13959 be, and it hereby is, remanded to the Regional Director for the purpose of conducting a second election. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER WALTHER, dissenting in part: The facts in this case are basically uncontroverted. In the early summer of 1975, Respondent's home office in Fort Lee, New Jersey, became concerned over the low morale among employees at its Nashua, New Hampshire, plant. In an effort to improve mat- ters, Respondent's vice president, Machaver, recom- mended to Respondent's president on July 29 that the Nashua plant employees be given an 8-percent 226 NLRB No. 123 STA-HI DIVISION, SUN CHEMICAL CORPORATION wage increase. The president approved the proposal the next day, and Machaver instructed Labor Rela- tions Director Rosen to relay the news to Nashua Plant Manager McNally. Rosen did so on July 31. However, upon being notified by McNally later that day that he had just received a letter from the Union claiming to represent the Nashua plant employees, Rosen, who was also Respondent's counsel, gave Machaver his legal opinion that it would now be an unfair labor practice for Respondent to give the in- crease in view of the organizational campaign. Mac- haver agreed and Rosen then told McNally not to announce the raise to the Nashua plant employees. The Union filed its representation petition on Au- gust 1. In an effort to alleviate the serious morale problem at the Nashua plant, Machaver spoke to an assembly of the plant employees on August 4. After speaking about 15 minutes, Machaver invited questions from the audience. In responding, he was careful not to make any statements which might be interpreted as promises of benefit should employees vote against the Union. In fact, he specifically declined to answer certain questions for that reason. However, when one employee accused Respondent of never intending to give the employees a wage raise regardless of the out- come of the election, Machaver became angry at what he considered to be an accusation of bad faith and responded that Respondent's home office had considered giving a raise to employees based on Mc- Nally's and Rosen's recommendations and that he and Respondent's president had "arrived at a deci- sion" (without stating what the decision was). He added, "When that decision was to be communicated to Mr. McNally, we found there was a union peti- tion. And at that point we could go no further, so we did not." The Administrative Law Judge found that Re- spondent violated Section 8(a)(3) and (1) of the Act by canceling the raise for employees on July 31 and by telling them on August 4 it had done so because of the Union's organizing campaign. The majority has rejected the Administrative Law Judge's finding that the July 31 cancellation of the wage increase was unlawful. I concur. However, I would also reject his finding that Machaver's August 4 statements to employees violated Section 8(a)(3) and (1) of the Act. The statements of Machaver at the August 4 meet- ing which the Administrative Law Judge and the Board majority find unlawful were provoked by an employee who impugned the good faith of Respon- dent. Company officials are not required to remain silent when in the context of an organizational cam- paign, an employee impugns the credibility of the 647 Company. It may happen in such situation- that, in the heat of mdignation, the company representative in responding may say something which in another context may be considered coercive. That does not make it coercive in the provoking situation. In Cole- craft Manufacturing Co., Inc. v. N.L.R.B., 385- F.2d 998 (C.A. 2, 1967), the court said: When employees intend to provoke expressions of anti-union views from their supervisors, we cannot believe that any anti-union views they express have the same deterrent or coercive ef- fect as they do when unprovoked. In the absence of any showing that the supervisor's response actually had a coercive effect, the Board may not assume that the employees were threatened or coerced in violation -of their § 7 rights. Simi- larly, when an employee seeks the opinion of a supervisor ostensibly to help the employee to de- cide whether or not to support the union, the supervisor's expression of his opinion to the em- ployee is not a violation of § 8(a)(1). Here at the August 4 meeting employees accused the Respondent of not having any intention of giving the employees a raise even if the employees voted against the Union. Machaver responded with a'fac- tual account of what had preceded the filing of the representation petition. It is noteworthy that Mac- haver did not inform the employees that an agree- ment had been reached to give the employees an 8- percent wage increase, but only that "we arrived at a decision." He therefore did not take advantage of the provoking employee's statement to tell the employees directly or indirectly that before the access of the Union a wage increase had been decided on and the amount thereof, and that the Union was no longer necessary. In finding that the Machaver statements of August 4 were unlawful, the Administrative Law Judge con- cluded that they were so similar to related, statements found unlawful in Colorado Seminary (University of Denver), 219 NLRB 1068 (1975), as to make the deci- sion in that case controlling here. I do not agree. In Colorado Seminary, an employee at, a meeting held a day before the scheduled election asked a uni- versity official why, if the university did not want the employees in the union, the administration did not do something for the employees. The official re- sponded that the day before notice had been received of a union election a shift differential had been ap- proved "but now it will not take effect." Another employee then said aloud, "You guys threw it down the drain; it was approved." The Administrative Law Judge found, and the Board adopted his finding, that the official's remarks were unlawful because they 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were "essentially gratuitous and not in any manner compelled by the challenge of employee Blake that the administration do something beneficial for em- ployees as a means of offsetting the appeal of the Union. . . . I conclude he uttered his statement with the intent of undermining the Union. In any event, this was the foreseeable effect of his statement. Greater circumspection on his part was required." In the present case, in contrast, the remarks of Machaver were not gratuitous. They were the only way Respondent could rebut the accusation of bad faith. They were strictly accurate and, within the meaning of Colorado Seminary, circumspect. For Machaver did not tell the employees that a wage in- crease had been, agreed upon prior to the notification from the Union but only that a decision had been reached. Further, there is no evidence to justify a finding that Machaver delivered his statements with the intent of undermining the Union and the Admin- istrative Law Judge so found. Nor were the state- ments calculated to have this effect for, unlike Colo- rado Seminary, the employees were not told that a raise had been agreed upon, but only that a decision had been arrived at, without stating what that deci- sion was. The majority decision concludes that "By telling its employees on August 4, 1975, that it had canceled a raise for them because of the Union's organizing campaign, Respondent has violated Section 8(a)(3) and (1) of the Act." It also orders Respondent to make the employees whole for the wages lost be- tween August 4 and October 25, when a retroactive wage increase became effective. The 8(a)(3) conclu- sion and the reimbursement remedy are illogical in view of the majority finding that the decision of July 31 to cancel the wage increase was lawful. As Re- spondent had lawfully decided not to go ahead with implementing a wage increase, the employees were not deprived of anything by the August 4 statements. Those statements, by the majority's finding, might be considered as having coerced the employees by blaming the Union for the wage cancellations but could not deprive the employees of any wage increas- es; this Respondent had previously lawfully, decided not to make effective. Nor is there any other basis for finding an 8(a)(3) violation inasmuch as the employ- ees were not unlawfully deprived of anything and Respondent did not act with a discriminatory moti- vation. At most the majority might justify a finding of 8(a)(1) violation together with a cease-and-desist order. As set forth above, however, I would not find that the August 4 statements of Machaver were unlawful. Accordingly, I would dismiss the complaint in its en- tirety. As the Union's objections to the election which it lost are based on conduct identical with that alleged as unfair labor practices, I would also over- rule the objections and certify the results of the elec- tion. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employ- ees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any= or all of these things. WE WILL NOT cancel raises for you because a union is engaged in a campaign to organize you. WE WILL NOT tell you we have canceled raises for that reason. WE WILL NOT in any other manner interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL make you whole for the wages you lost in the period from August 4 to October 25, 1975, plus interest, as the result of our an- nouncement on August 4, 1975, that we would cancel a raise because of the Union's organizing campaign. STA-III DIVISION, SUN CHEMICAL CORPORA- TION DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The petition in Case 1-RC-13959 was filed on August 1, 1975.1 A Stipulation for Certification Upon Consent Election was approved on September 12. The election was held on Octo- ber 16. The Union -lost, 14 to 22. There were no void bal- lots. There were two challenged ballots. The Union filed objections to conduct affecting the results of the election on October 20. The charge in Case 1-CA-11149 was filed on October 23. The Regional Director issued a Report on Objections in Case 1-RC-13959 on December 15. He recommended that the three objections raised by the Union on October 20 be overruled. He further recommended Case 1-RC-- 1 Dates are 1975 unless otherwise indicated STA-HI DIVISION, SUN CHEMICAL CORPORATION 13959 be consolidated for hearing with Case 1-CA-11149 as to two "additional" objections not originally raised by the Union. An order consolidating the two cases and the complaint in Case 1-CA-11149 was issued on December 24. The Board issued a Decision and Order Directing Hearing in Case 1-RC-13959 on March 15, 1976. The hearing was held on March 31, 1976, in Boston, Massachu- setts. The principal issue litigated was whether Respondent violated Section 8(a)(3) and (1) of the National Labor Re- lations Act, as amended, by withholding a wage increase from employees. For the reasons set forth below, I find it did. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Delaware corporation, is engaged in Nashua, New Hampshire, in the business of manufacturing conveying and stacking equipment for the publishing in- dustry and related products. It annually receives goods and materials valued in excess of $50,000 which are shipped directly to it from suppliers located outside the State of New Hampshire. It annually ships products valued in ex- cess of $50,000 directly to customers located outside the State of New Hampshire. II. THE UNFAIR LABOR PRACTICES A. The Raise Issue 1. Facts The plant involved in this proceeding moved from New- port Beach, California, to Nashua in the summer of 1974. A year later morale among the employees was at a low ebb for a number of reasons. Among these was wages. At a meeting held in mid-June, employees asked Robert Mac- Nally, as divisional vice president and general manager the highest official in the plant, about the possibility of a cost- of-living increase . His response was not encouraging. Sta-Hi occupies a small part of the plant of another divi- sion of Sun Chemical named Kollsman Instrument. Fran- cis Haggerty is the senior Kollsman official at the complex. He and other Kollsman officials were rendering personnel assistance to Sta-Hi during this period. In this capacity, Haggerty attended another meeting of Sta-Hi employees on July 23. When the subject of a cost-of-living raise came up again, he told the employees that Kollsman was con- ducting an area wage survey which had not yet been com- pleted. He did not state whether or not the employees could expect a raise as a result of the survey . His answers to their questions did not quiet the employees' unrest over their wages and other working conditions. MacNally was not present at the July 23 meeting, but he learned of the employees' questions and Haggerty's an- swers soon after. While he had heard rumors of union in- terest among the employees, he was not aware at this time 649 that the Union had undertaken an organizing campaign. He did think that unrest among the employees, especially over wages, was a serious problem in his plant. He learned from Haggerty some details about the facts uncovered in the Kollsman survey. He telephoned Sun Chemical's cor- porate headquarters in Fort Lee, New Jersey, on Tuesday, July 29, to do something about the situation. William Machaver is Sun Chemical's vice president of personnel and industrial relations. Stanley Rosen is direct- ly under Machaver and has the title of director of labor relations. MacNally talked to Rosen on July 29. He recom- mended Sta-Hi employees be granted an immediate raise on the basis of the Kollsman survey. He left the size of the raise to Rosen's discretion. Rosen reported MacNally's recommendation to Machaver . He recommended a raise of 8 percent. Machaver concurred. He carried the recommen- dation to the president of Sun Chemical. On the evening ,of Wednesday, July 30, the president approved an immediate raise of 8 percent for hourly employees at the StaHi plant. Machaver told Rosen to relay the news to MacNally. Rosen did so in a telephone call to MacNally on the morning of Thursday, July 31. Later that morning Mac- Nally called back and told Rosen he had dust received a letter from the Union claiming to represent Sta-Hi employ- ees. Rosen instructed MacNally to do nothing about the raise until Rosen got back to him. Rosen reported what had happened to Machaver. He gave Machaver his legal opinion that it would be an unfair labor practice for Re- spondent to implement the decision to give a raise under these circumstances and recommended that the raise be canceled. Machaver accepted Rosen's recommendation. Rosen reported the decision to MacNally. Consequently, the raise was not announced to the employees. Machaver went to Nashua on the evening of ' Sunday, August 3, to attempt to do something about the serious personnel problem at the Sta-Hi plant. He conferred at length with MacNally and his manufacturing manager in the morning and early afternoon of Monday, August 4. While they were in conference, MacNally received and opened the copy of the petition in Case 1-RC-13959 which had been mailed to Respondent by the Regional Office on August 1. They decided that Machaver would meet with the employees. He did so around 3:30 that afternoon. Ap- proximately 32 of Sta-Hi's approximately 38 production and maintenance employees were present , along with Mac- haver, MacNally, the manufacturing manager, and a fore- man. The meeting lasted until after 5 p.m. MacNally began the meeting by introducing Machaver. (I do not credit the testimony of the General Counsel's witnesses that MacNally told the employees about the can- celed raise at this point in the proceedings.) Machaver spoke for about 15 minutes, then invited questions and comments. The employees brought up the things that were troubling them. Machaver, answered appropriately, taking care not to make statements that might be interpreted as promises of benefits if the employees would vote against the Union. When the question called for such a response, he told the employees explicitly that was the reason for his not saying more. On occasion, he called on MacNally to respond to some^particular point raised by an employee. It was in this context that the employees learned a ,raise had 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been approved for them and then canceled when Respon- dent learned of the Union's campaign to organize them. At one point in the meeting when wages were the subject being discussed, an employee made, a statement at which Machaver took umbrage. The employee said the Company had no intention of giving the employees a, raise -and the only reason Machaver was talking- to them was because he wanted them to vote against the Union He asked, "Is it true, if we do vote against the Union, we're not going to get an increase anyway?" - Machaver turned to MacNally and said, "This comment is not really a question, Bob. It is designed to impugn the credibility of our company, the reputation of our company, and to really leave a feeling with the people that our word isn't worth anything. And what's more . . . this question in the form of a statement is false. Therefore, I think, within the law; we ought to tell the people the facts. Would you do so?" MacNally said, "Well, on Tuesday of last week I called up Mr. Rosen, and told -him that based on all of the cir- cumstances, namely the meetings we've had with people, where there were complaints about wages, the fact there were across-the-board increases being given in the area, and the, general unsettlement in the plant, that we ought to give the people an increase. Bill, you ought to pick it up from here, because you know what happened after I talked to Stan Rosen." Machaver said, "Mr. Rosen came to me, and told me that Mr. MacNally recommended an increase. He re- viewed this survey information which he had, and made a recommendation to me. I then met with the president the following night, which was Wednesday night, and we ar- rived at a decision. On Thursday, when that.decision was to be communicated to Mr. MacNally, we found there was aunion petition. And at that point we could go no further, so we did not." Respondent's hourly employees received a 9-percent raise in November, retroactive to October 25. 2'. Analysis and conclusions The raise issue turns on whether the applicable law is the general rule set forth in McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237 (1966), The Great Atlantic & Pacific Tea Company, Inc., 166 NLRB 27 (1967), and a host of other cases or the exception to that rule set forth in such cases as The Singer Company, Friden Division, 199 NLRB 1195 (1972), and The Great Atlantic & Pacific Tea Compa- ny, Inc., 192 NLRB 645 (1971). The general rule, simply stated, is that an employer faced with an organizing cam- paign commits !unfair labor practices if he does not grant or withhold benefits, as the case may be, as though the union were not there. The exception is that, where there is an absence of objective evidence excusing the timing of whatever the employer does, he may change his course of action so long as his motive is the limited one of protecting himself from charges of unlawful conduct. It is stated by the Board in Singer thus: It is true, as the Trial Examiner observes, that em- ployers have the legal duty in deciding whether to grant benefits while a representation case is pending to determine that question precisely as- they would if a union were not in the picture.2 Yet, it is also true, that under settled-Board policy, a grant or, promise of ben- efits during the critical preelection period will be con- sidered unlawful unless the employer comes forward with an explanation, other than the pending election, for the timing of -the grant or announcement of such benefits.-It is apparent therefore, that tension exists between these principles where, as here, the benefits are not pursuant to any fixed practice, pattern, or preorganizational announcement, but both the timing and eligibility for the benefits are purely within the discretion of the employer. Absent an accommodation of these principles, employers situated similarly to the Respondent herein would be faced with the dilemma of giving the increase without benefit of objective evi- dence excusing the timing, thereby risking an unlawful interference with the election .or, as was done here, withholding the benefits and still be subject to charges of unlawful conduct. The Board has held that where an employer has made clear in its campaign statements that its only reasons for postponing expected benefits was to avoid the appearance of election interference, its, action did not constitute objectionable conduct? We can per- ceive no justification for refusing to apply that rule to a situation where, as here, the benefits are not neces- sarily expected, and the withholding is for the limited purpose of protecting the employer from charges of unlawful conduct. 2McCormick Longmeadow Stone Co, Inc, 158 NLRB 1237, 1242 (1966) 3 See Uarco Incorporated, 169 NLRB 1153 (1968), Montana Lumber Sales Inc (Delaney & Sons Division), 185 NLRB 46 (1970) Here, the basic issue is whether Respondent violated the Act on July 31 when it changed its mind about granting its employees an immediate raise. When only the decision is taken into consideration, the situation is remarkably simi- lar to Singer. The raise was not pursuant to any fixed prac- tice or pattern. This was the first time Respondent had contemplated a raise since it moved to Nashua. The raise was not pursuant to a preorganizational announcement The- employees were unaware of a decision to give them a raise until August 4. Both timing and eligibility for the raise were purely within Respondent's discretion. There is no evidence, as of July 31, that Machaver's purpose in can- celing the raise was anything other than protecting Re- spondent from charges of unlawful conduct. A subsidiary issue is whether what MacNally and Mac- haver told the employees about the raise on August 4 vio- lated the Act. When that part of the record is added to the decision of July 31, the situation is even more remarkably similar to Colorado Seminary (University of Denver), 219 NLRB 1068 (1975). In fact, the two proceedings are so nearly on all fours that Colorado Seminary is, I think, con- trolling here. In Colorado Seminary the employer, on the advice of its labor relations adviser, canceled a preorgani- zational decision to grant a shift differential about which there had been no announcement to the employees. At a STA-HI DIVISION, SUN CHEMICAL CORPORATION meeting with employees on the day before the election, Vice Chancellor Phipps was asked by Blake why, if the university did not want its employees in the union, it did not do something for them. Phipps said that making changes at that puncture would only lead to unfair labor practice charges. He added, "For instance-I probably should not be saying this here-but the day before we re- ceived notice that you were to have a union election, a shift differential had been approved, but now it will not take effect." The only distinction between what Phipps said and what MacNally and Machaver said is that the former told; the employees the benefit had been approved while the latter stopped short of using that word. However, the words that they did speak -could only have been and were correctly understood by the employees to mean that a raise had been approved for them and then canceled for fear of charges of unlawful conduct. There is, therefore, no meaningful dis- tinction to-be drawn between the facts in Colorado Semi- nary and those in this proceeding. (There is nothing here comparable to the fact in Colorado Seminary that an em- ployee reiterated Phipps' point by saying "You guys threw it down the drain; it was approved." Since the case turned only on Phipps' statement, this distinction is immaterial.) The Board adopted Administrative Law Judge James T. Barker's finding that both Phipps' statement and cancella- tion of the shift differential violated Section 8(a)(3) and (1) of the Act. Judge Barker said: ... the reference of Vice Chancellor Phipps to', the wage differential decision was essentially gratuitous and not in any manner compelled by the challenge of employee Blake that the administration do something beneficial for employees as a means of offsetting the appeal of the -Union. Contrary to Respondent, Blake's inquiry did not disclose the shelving of the "embryon- ic night shift differential." 'Vice Chancellor Phipps made that disclosure; and the content of his statement was such as to place the onus of its failure to in on the Union. Clearly, if Phipps felt the necessity of entering a defense to Blake's remarks, it was not incumbent that he single out the night shift differential and attribute its demise to the union effort It is diffi- cult to conceive that an academician, allegedly acting pursuant to legal advice, could not have formulated a more discreet and less polarizing statement. Indeed, the evidence discloses that Phipps recognized the probable impropriety of the statement uttered. I con- clude he uttered his statement with the intent of un- dermining the Union. In any event, this was, the fore- seeable effect of his statement. Grpater circumspection on his part was required. See, e.g., The Singer Compa- ny, Friden Division, supra; Uarco Incorporated, 169 NLRB 1153, and Montana Lumber Sales, Inc., 185 NLRB 46. The same rationale applies here. Machaver, having elected to make the first announcement of the possibility of a raise, also elected to place the onus for its cancellation on the Union. The remark by an employee which caused him to speak out did not require such a devastating response to defend Respondent's honor. A man of Machaver's intelli- 651 gence and experience could have formulated a more dis- crete and less polarizing statement. Since Machaver's awareness of the legal implications of what MacNally and he were saying caused him to stop short of stating explicitly the raise had been approved, I do not find that undermin- ing the Union was uppermost in his mind when he spoke out. The crucial point, in any event, is that this was the foreseeable effect of what was said to the employees about their lost raise. In the Atlantic-and Pacific case at 192 NLRB 645, cited above as standing for the exception to the general rule, the finding is stated this way: . we find that the Respondent's postponement of the wage increase without an explanation therefor and at a time when the Union's organizational campaign was about to be resolved in a scheduled Board-con- ducted election was- not violative . . . of the Act. In reaching this conclusion we specifically note that there is no evidence to indicate that Respondent in any way sought to capitalize on the absence of a wage -increase by connecting the absence with the Union or the'em- ployees' support of the Union. Putting this proceeding in those terms, what MacNally and Machaver said to the employees on August 4 is evidence to indicatez Respondent capitalized on the absence of a wage increase by connecting the absence with the Union. I find, therefore, that Respondent violated Section 8(a)(3) and (1) of the Act by canceling a raise for its employees on July 31 and by telling them on August 4 it had done so because of the Union's organizing campaign. B. The Other Issue Halowell Brown is manager of employee relations for Kollsman. Around August 1 he was assigned to work with Sta-Hi officials on an intensive basis in connection with the Union's campaign to organize Sta-Hi employees. (Prior to that time, Brown, like Haggerty, had been doing some per- sonnel work for Sta-Hi as a result of the relationship be- tween Sta-Hi and Kollsman growing out of their occupan- cy of the same plant complex.) Brown carried out his assignment by talking to numerous Sta-Hi employees on numerous occasions prior to the election. The only other allegation in the complaint of an unfair laborr practice by Respondent is based on Brown's activities. The General Counsel presented the testimony of Joseph Ross in support of the allegation that "[o]n or about early August 1975, Industrial Relations Manager Hal Brown stated to -an employee that without the Union the Compa- ny could do so much for the employees but with the Union the employees would never know and asked the employee how he was going to vote in the election." (Ross is one of the two witnesses for the General Counsel I have discredit- ed as to the manner in which Respondent revealed to em- ployees that it had canceled a raise because of their union activities.) I credit Brown's denials that he spoke the words attributed to him by Ross in the course of conversations he admittedly had with Ross. I find, therefore, that the Gener- al Counsel has failed to prove by a preponderance of the evidence that Respondent committed this independent vio- lation of Section 8(a)(1) of the Act. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE OBJECTIONS TO THE ELECTION The two issues litigated as unfair labor practices in Case 1-CA-11149 are also the additional objections to the elec- tion held in Case I-RC-13959 which have been referred to me. In Colorado Seminary, supra, unfair labor practices identical to those found here negated an election held in a consolidated representation case. I recommend, therefore, that the election held in Case 1-RC-13959 on October 16, 1975, be set aside and a second held. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Sta-Hi Division, Sun Chemical Corporation, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of United Automobile, Aero- space and Agricultural. Implement Workers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By canceling a raise for' its employees on July 31, 1975, and by telling them on August 4, 1975, it had done so because of the Union's organizing campaign, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. The allegations of the complaint that Respondent vio- lated Section 8(a)(1) of the Act by impliedly threatening an employee and by interrogating him about his union sympa- thies have not been sustained. THE REMEDY In addition to the usual cease-and-desist order and no- tice, a make-whole order is required to effectuate the poli- cies of the Act. Colorado Seminary, supra. Consequently, I will recommend that Respondent's employees be compen- sated for the wages they lost between July 31, 1975, when the decision to give them an 8-percent raise was canceled, and October 25, 1975, when a 9-percent raise went into effect. This backpay will be computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The Respondent, Sta-Hi Division, 'Sun Chemical Corpo- ration, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a), Canceling raises for employees because a union is engaged in a campaign to organize them. (b) Telling employees it has canceled a raise because a union is engaged, in a campaign to organize them. (c) In any like or related manner interfering with or at- tempting to restrain or coerce employees in the exercise of rights guaranteed in Section' 7 of the Act. 2.' Take, the following affirmative action necessary to ef- fectuate°'the policies of the Act: (a) Make its employees whole for the wages they lost in the' period from July 31 'to October 25, 1975, plus interest, as the result of its decision on July -3I, 1975, to cancel an 8-percent raise. (b) Preserve and, upon ' request, make available to the Board or its agents , for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the= amount of backpay due under the terms of this recommended Order. (c) Post at its plant in Nashua,'New Hampshire, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent im- med 'iately upon receipt thereof, .and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall , be taken by Respon- dent to insure that said notices are not altered , defaced, or covered by any other material. , (d) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED, that the complaint be dismissed insofar as it alleges Respondent violated ,,-Section 8(a)(1) of the Act by impliedly threatening an employee and by inter- rogating him about his union sympathies. 21n the event no exceptions 'are filed as provided by Sec. 10246 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and' all objections thereto shall be deemed waived for all purposes' 3 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."