Switchcraft, Inc.

SWITCHCRAFT, INC. Switchcraft, Inc. and Warehouse, Mail Order Office, Technical and Professional Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.' Cases 13-CA-12805 and 13-CA-13077 December 10, 1974 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On August 29, 1974, Administrative Law Judge Allen Sinsheimer, Jr., issued the attached Decision in this proceeding. Thereafter, the Union filed exceptions 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 has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Switchcraft, Inc., Chicago , Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Attached to its exceptions to the Decision of the Administrative Law Judge, the Charging Party notified us that the official name of the Union was recently changed from Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America to the name appearing above The Charging Party additionally moved that all formal documents in this matter be amended accordingly In the absence of any objections, that motion is hereby granted DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR, Administrative Law Judge: The above proceeding was heard on May 28, 29, and 30, 1974, at Chicago, Illinois. An original complaint in Case 13-CA-12805 issued February 15, 1973,' and an original complaint in Case 13-CA-13077 issued April 12, 1974 2 Both complaints were consolidated for hearing by order dated April 12, 1974. They allege violation of Section 8(a)(1) of the Act by the granting of certain benefits, including wage increases,; vacation changes, and an additional holiday and Based on a charge filed November 13, 1973 2 Based on a charge dated March 11, 1974 465 Christmas benefit, and also by interrogation, impression of surveillance, threats, etc. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs of the General Counsel and Respondent, I make the following:4 FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation, is engaged in the manufacture, sale, and distribution of electronic components. During the past fiscal year representative of its operations, Respondent purchased and caused to be transported and delivered to its Chicago plant goods and materials valued in excess of $50,000 directly from points outside Illinois. During the same period, Respondent manufactured, sold, and dis- tributed at its Chicago plant products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from said plant to points located outside the State of Illinois. I find Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED Warehouse and Mail Order Employees Union Local 743, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and Background Since Respondent's inception following World War II, there have been 11 efforts to organize its plant, the latest prior to the current one being in 1970. In none of these campaigns was a petition ever filed. The present campaign, which the record reflects commenced on October 16, 1973, was evi- dently still in effect at the time of the hearing. For some years prior to 1973, it appears that the Respond- ent granted wage increases to employees as set forth here- after. On August 3, 1970, increased the maximum to RPI assemblers by 10 cents; in 1971, apparently no range increases to RPI assemblers were given but automatic increases were within the ranges, on March 20, 1972, RPI assemblers' mini- mums and maximums were increased 10 cents; on May 7, 1972, RPI assemblers' minimum was increased 15 cents and maximum increased 10 cents; on March 12, 1973, RPI assem- blers' minimum increased 15 cents and maximum 10 cents; then on October 22, 1973, an increase occurred for RPI assemblers and also for all other employees of 10 cents per hour; also, as of April 29, 1974, an increase occurred of 20 3 An amendment alleging an additional violation by a wage increase on April 29, 1974, was granted at the hearing 4 On July 1, 1974, the General Counsel filed a motion to correct the transcript with the statement that Respondent and the Charging Party did not oppose such I have examined and compared the requested corrections and find they are in order, except it appears that, instead of p 431, as set forth in items 2 and 3 of said motion, such should read p. 436 1 am granting said motion accordingly 215 NLRB No. 92 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cents per hour. In the periods prior to October 1973 evidently there were adjustments made for employees other than RPI assemblers but not at the same time as the changes were granted the RPI assemblers, who Respondent testified con- stituted about 60 percent of its approximately 800 employees. Respondent contended that in 1973 it did not grant a se- cond increase it "normally" would have in May until October because of tightening of working capital resulting from a slowing of collection of receivables and increase in inventory resulting in a decrease or slowing of cash flow. Respondent gave the October increase of 10 cents per hour after discover- ing it had room therefor under the 5.5 wage formula stand- ard, and that it then had the funds to` grant such increase prior to November 13 or 14, which would be the end of its accounting year. In connection with this increase , the record reflects that the Respondent had been discussing such in communications between its Vice President Charles Giesow and its Treasurer Fred Dumke. On August 6, 1973, Giesow wrote to Dumke on the subject of economic welfare increase for all hourly rated employees in which he stated: I call your attention to our previous pattern of granting two rate increases each year to all of our hourly rated employees; the most recent increases were made effective March 20, 1972, May 1, 1972 and March 12, 1973. You will recall that prior to our vacation shut down period between July 23, 1973 and August 3, 1973, we discussed the ever increasing turn over of help, the prob- lem and the cost of finding replacements. This condition has steadily increased, and in view of the ever increasing rise in our national economy, I now must urgently sub- mit this year's second new hourly rate increase of 10¢ per hour across the board to all of our presently employed male and female employees . This increase should be made effective no later than the month of October. Please give this recommendation your earliest considera- tion. On the bottom of this memo from Giesow to Dumke appears Dumke's handwritten statement: I agree. I hesitate however to give approval right now because of the heavy demand by inventory build=up due to increase in back-log and the build up of receivables due to slow- down in collections upon our working capital and cash flow. With heavier emphasis on scheduling of incoming material we should be in better position for granting this increase in Sept . or October /s/ Fred D. On August 13, Giesow again wrote to Dumke expressing the hope that the financial difficulties would be alleviated "before school vacations are over as we expect to lose still more help when the young men and women return to school around Labor Day that helped fill the gap temporarily.... I anxiously await your go ahead signal maybe September will be our lucky month." Dumke replied "Plan on putting through a general 10 cent per hour increase the latter part of September. See me around the 15th and we will pinpoint the date." On August 31, Giesow sent another memo to Dumke in which he advised that he was happy to learn that "it is quite possible the proposed general increase of 10 cents per hour will be placed in effect in the very near future. Believe this would be the opportune time to bring up our often discussed vacation adjustment." Giesow then discussed the matter of the vacation adjustment and particularly pointed out that their 2-week vacation program after 3 years of service only reflected 24.7 percent of companies contacted, whereas the popular trend reflected 43.3 percent for 2 years of service. Giesow then recommended a new vacation schedule with a particular change of 2 weeks' vacation for from 1 to 5 years service and requested advice as to "Will you be able to absorb this additional expense. Please let me know as soon as possi- ble." Giesow also added that "increased wages and fringe benefits are the prime concern of both old and new em- ployees. Our concern and prompt action now should without a doubt help us to retain our present employees and serve as an inducement to attract new applicants." On September 12, Dumke in part replied that he agreed that they had "to change and improve" and they should get together with "Wilfred and Bill as soon as possible." On October 10, another memo from Giesow to Dumke refers to the proposed vacation schedule for 1974 and states Giesow is looking forward to the meeting with Wilfred and Bill. Dumke replied on October 15 that he spoke to Wilfred and Bill concerning the "suggested vacation schedules" and that, because of "increasing complaints this summer and because of our high turnover record, we concur. I believe we should announce this immediately because I believe it might be of advantage to us in this year reporting of phase IV, the year ending in November. I'm not sure but let's release it." This latter letter does not refer to the proposed pay increase. Although not originally introduced by Respondent, it ap- peared following examination by me that there was another interoffice memorandum from Giesow to Dumke dated Octo- ber 11, 1973, with the subject, "Economic Welfare Increase All Hourly Rated Employees": In line with your reply dated August 28, 1973, and our conversation on September 17, 1973, at which time you approved my recommendation , I submit herewith a proposed new hourly rate increase of 10¢ per hour across the board to all of our hourly rated employees. It is my intention to place the new rate increase into effect October 22, 1973, at which time Data Processing can process the increase. Therefore, I urge that you give this recommendation your earliest consideration. Underneath there appears opposite the word "approved" the signature of Secretary-Treasurer Fred Dumke, dated October 11, 1973. As indicated, this latter refers to a conversation of September 17 between Giesow and Dumke and proposes a new hourly rate increase of 10 cents for all hourly rated employees with the stated intention to place such into effect on October 22. This increase was accordingly approved some 5 days prior to commencement of union organizational ac- tivity on October 16. SWITCHCRAFT, INC. Further background as to the wage price situation in the period in question in Chicago and the United States is re- flected in an exhibit dealing with price indexes for both the United States and Chicago for 1973 and 1974, using both an old series and a new series index.' Among the figures re- flected for January 1973, the U.S. old index shows 148.5, U.S. new, 127.7; Chicago old, 143.6, Chicago new, 126.4. As of October 1973, the corresponding figures show U.S. old, 158.8, U.S. new, 136.6; Chicago old, 154.1, Chicago new, 135.7. This is approximately a 9- to 10-point change in the period from January 1973 to October 1973 in the cost of living index, which refers to urban wage earners and clerical workers. Thereafter, between October 1973 and April 1974, the figures in April 1974 showed U.S. old, 167.5, U.S. new, 144; Chicago old, 162.5, Chicago new, 143. This in turn represents changes of over 8 points between October 1973 and April 1974 in the cost of living index, both U.S. and Chicago's. B. The Wage Increase of October 22, 1973 From the foregoing, it would appear that this wage in- crease of October 22, 1973, was both considered and defini- tively determined prior to union organization of October 16 and in fact by October 11, the date had been set for it to be placed into effect; namely, October 22. While the Respondent argues that its prior wage increase pattern reflects two per year, as indicated, supra, this is not quite the case. However, in view of its prior determination to give the increase on October 22, as reflected by the internal correspondence of Respondent, which I credit , and also the situation throughout the nation and the Chicago area in terms of cost of living and wages, subject only to the limitations of wage-price controls, the increase of October 22 appears to be a valid one and not conceived or directed toward interfering with union organiza- tion. Accordingly, I find the increase itself was valid. With respect to the announcement of said increase and the propaganda pertaining thereto, another question may arise. In order to evaluate that, it is necessary to set forth the literature pertaining thereto. On October 16, the Union is- sued a bulletin announcing its organizing drive and soliciting membership . On October 17, the Respondent, through Charles Giesow, vice president , replied advising employees to "know the facts and recognize the risks which may result" and then stated "For over 25 years we have built our business and have added to our employees well being with continuous voluntary improvements in wage scales, clean, well-lighted, air conditioned working conditions to assure your comfort and safety." It then advised the employees that unionism is a serious matter and that they should give it a lot of thought before making a decision to sign an authorization card and refer to requirements of paying dues, etc. The letter also states "We believe that we can give you benefits as good or better than those which the Union would try to negotiate without your having to pay for these benefits. As you know, under President Nixon 's wage and price regulations, businesses are limited in how much they can increase wages and fringe benefits. With these limitations in force, a union is not being 5 The old series covered 1957-59 equal 100. In the new series, 1967 equal 100. 467 completely honest with you when they promise you the moon." The letter goes on "The management of Switchcraft has always been available to its employees if they have any gripes or problems. We shall continue to operate that way and hope that all of our employees will feel that they do not need a union to intervene in order to get fair and just treatment. If anyone has any questions about our present policies or future plans, please come to see me." On October 22, without any distinction as to employees' job classifications, Respondent gave a general increase of 10 cents to all its employees at its Chicago plant. On October 25, Giesow wrote to employees with respect to the Union, accus- ing it of handbills that made "wild promises in an effort to mislead" and containing various assertions generally deroga- tory to the Union and its purposes. The letter asserted "The high standard of wages, excellent working conditions and outstanding fringe benefits which we have here at Switchcraft have been obtained by all of us working together." The letter then said that "no one has ever been subjected to strikes," etc. It further stated "If you have any problem on your job talk to your supervisors or me about it." Thereafter on October 30, the Union issued a bulletin as- serting that the management has started the usual antiunion smear and fear letter writing contest and other tricks and containing the following: l0C is not Enough The biggest disgrace of all is that Management in- sulted, undermined and ignored the intelligence and dig- nity of the workers. To keep the workers from joining the union, the Company gave the workers a 10C wage increase and a vacation trick. Everybody at Switchcraft know that the only reason why the l0C crumbs were given by the Company is because the Union is at the Com- pany's gates. Any worker in his or her right senses knows that ten cents is not enough, not even for a down payment on a decent wage increase. Switchcraft Man- agement believes that th,; workers have to take their shoes off to count to twenty. We are sure that the work- ers are more intelligent than what management thinks. [Emphasis supplied.] Vacation Trick Since the Union got in the picture, Management reached for the anti-union trick bag, and came up with a vacation trick. (The gimmick works like this.) The Company claims to give the workers one week vacation for 6 months of service and two weeks for one year. First of all the Company will not let anyone go on vacation with only 6 months of service. Secondly, the workers must have one full year of service in order to get the two weeks vacation. This means that if you have worked 11 months and three weeks you will only get one week vacation. Actually, you will be working two years in order to get two weeks vacation. (That's a trick). Of course, tomorrow is Halloween. The leaflet concluded with a request for the workers to join the Union. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent on October 31 responded as follows: The first paragraph refers to the large number of the handbills thrown to the pavement by employees and then the letter continues: It is unfortunate that the union cannot understand that it is Unnecessary to engage in Strike Action in order to get a Wage Increase or Better Vacation Program, when you work for a Company that Cares for its employees. Furthermore, they Fail to realize that the friendly rela- tionship that exists between our employees and us is the result of the sincere interest we have always taken in the welfare of our employees during the past 27 years. The Loyalty that exists between us has proved to be to our Mutual Benefit, and the Company will do everything Humanly Possible to improve this relationship and make Switchcraft a Better Place in which to work. You may want to know how this Wage Increase and Better Vacation Program came about. As you know, we are all subject to Phase IV of the Economic Stabilization Program of our country and I am sure that all of us want to comply with the law. As a result, our Company is limited to 5.5% in wage increases and .7% in improve- ment of fringe benefits. Due to the fact that we had already voluntarily given one plant-wide increase since November 13, 1972, we were limited in granting a se- cond increase that would result in giving you more than 5.5% in one year. It was necessary for us to compute how much of this 5.5% was still available for us before November 13th of this year. We found that a 10 cent an hour Increase for every hourly paid plant employee would eat up the balance available to us, and we gave it to you. Besides, in order not to violate the law, we put it into effect within the one year period. If we had ex- ceeded the 10 cent an hour Increase, it could have been cancelled completely by the Cost of Living Council in Washington, D.C., and our effort to help you would have been wiped out. Now for the Improved Vacation Program. The union is so jealous of you getting it Without Strike Action, that they are labelling it a "trick." Nothing could be further from the Truth and they know it, so they set up a Smoke Screen by trying to give you the impression that all of you would have to work 2 years in order to get 2 weeks vacation. You know that we have a 2 week plant shut- down in July and August to give every employee the opportunity to take their vacation with their family or friends during the best vacation period of the year. Be- sides, many of our suppliers and customers are also shut down for their vacation during the same period. Without supplies or customers to ship our finished products to, our work schedules would have had to be changed, and possibly some of our employees laid off. Under the new Vacation schedule, every present employee will receive a one, two, two and one-half, or three week vacation with pay next August. - Prior to October 31, the improvement in Respondent's . vacation policy mentioned in the leaflet and previously re- ferred to above in the correspondence between Giesow and Dumke had been announced by posting a notice with respect thereto on the bulletin boards throughout the plant. This then led to the union handbill and to part of Giesow's letter of the 31st, supra Evidently, some time the following week, the Respondent distributed its November copy of its magazine, Echoes. Page 3 thereof consisted of an unsigned open letter to Switchcraft plant personnel in the column entitled Christmas 1973 writ- ten by Charles Giesow. The open letter 'states: For example, why not read and re-read the letter from Charley Giesow about the pay increase and vacation change announced last week? Please know that, as he points out, Uncle Sam has the say (not any non-govern- mental group) on how much wages can be increased across the board. Know, also, that the same Phase IV governmental limits apply to benefits paid by any company, be they vacation, holidays, etc. , So, no matter what anyone tries to promise or guaran- tee you in a leaflet, for the present, the two increases granted this year are all the law will allow. Such increases are part of a continuing effort to main- tain good wages and benefits without violating federal standards. Another thing: know that no organization can force any other organization to provide more holidays, longer vacations, higher pay, etc. In our American system it just never has worked that way. Also in the same issue is a column by Giesow headed "Christ- mas 1973" which reads: First, this year for the first time, Christmas Eve, Mon- day, December 24, will be a full day off with full pay. This means we gain a half-day of pay. When the Party was held, we got paid for the afternoon of the Party, but not for Christmas Eve day. So this year, we will be receiving eight full days off with pay instead of the normal seven paid holidays plus the afternoon off when the Party was held. I am also pleased to announce that this year every one at Stitchcraft will receive as a Christmas gift a turkey from the company. On November 7, Giesow wrote another letter which begins: Many of our employees have told management that there is NO NEED for a union in our plant. I agree with them. These employees recognize that they are getting appropriate rates of pay and also all of the fringe benefits which are being paid in our industry. All of these have been given voluntarily by management without the necessity of paying any union for them. Besides, no Switchcraft employee has ever suffered any loss of pay due to Strikes or other forms of Work Stoppages in our plant. Our employees have never had to pay Initiation Fees, Dues, Special Assessments or Fines to any Union. The letter lists 16 items of benefits that the employees have. Item 16 states: SWITCHCRAFT, INC. You will soon receive an Employees Handbook which simply but thoroughly explains the Rights, Privileges, Policies and Procedures that affect you and your work. It will contain all of the above Benefits, and will be as legal as any union contract. The foregoing refers to both the wage increase and also the Christmas vacation and turkey change from the preceding year which will be considered hereafter. The General Counsel asserts that the Respondent's position in its letters was such as to, when combined with the wage increase, create an im- proper or illegal impression as to the granting of the wage increase vis-a-vis the Union with a resultant violation of the Act. The General Counsel also contends that the granting of the increased holiday and the giving of the turkey at Christ- mas in conjunction with Respondent's announcement thereof violated Section 8(a)(1) of the Act. He also argues that the impact thereof, when combined with the granting and discus- sion of the wage increase, further illustrates the illegality of the wage increase as announced. The contention is in essence also urged with respect to the vacation improvements which were put into effect prior to October 31 to be considered hereafter. Respondent attributes the wage and vacation increases and improvements to competitive pressure, economic conditions, the stabilization plan and cost of living, etc. As set forth previously, these matters and others were the subject of inter- nal discussion prior to union organization and decided and determined prior thereto. The General Counsel, in asserting that the wage increases were given to blunt the Union or that such impression was created by Respondent, refers, among other items for support thereof, to Respondent's prior history,' which I do not deem determinative since the issue can best be resolved by the evidence as to Respondent's con- duct in light of circumstances during the period prior to October 16, 1973. The General Counsel also argues that Giesow's letters did not announce or explain that Respondent had decided to grant the increase 5 days before the Union's first handbill and that the impact of statements, such as "we believe we can give you benefits as good or better than those which the Union would try to negotiate without your having to pay for these benefits," when coupled with the actual increase, created an improper combination and effect in violation of the Act. He stresses that the letter of October 17 and the history of Re- spondent's prior wage changes provided the only background reference for the employees when the October 22 raise became effective and also emphasizes the October 25 letter's assertion, "there's been no need for a union because we have always worked out our problems on a mutually beneficial basis." The General Counsel further points to the October 31 letter which referred to a variety of reasons for the wage increase but mentioned neither Respondent's problems of cash flow nor its prior determination of the increase. He argues that the Respondent had so entwined its October wage increase and improved vacation plan with its vigorous an- tiunion campaign that by ` failing to explain the legitimate purpose underlying these changes ... Respondent left these employees with only Giesow's letters as a basis for determin- 6 Which Respondent also appears to rely on. 469 ing their employer's purpose. Respondent did not tell the employees . . . that these benefits were granted at this time because of the prior cash flow problem or because wages were too low to attract an adequate number of new employees . .. . The General Counsel finally contends that the letters were intentionally worded to convey the limited message to employees that Respondent would grant benefits better than the Union could negotiate, that benefits beyond these were unlawful, that these benefits were the result of antiunion employees' loyalty to the Company and that all employees could expect from unionization were dues and strikes. It is true that there are certain implications in letters writ- ten by Giesow which, however, appear to be similar to many letters by employers during union organizational campaigns concerning the respective positions of employer and union and the possible impacts of unionization. Also, the letter of October 31 which refers to the wage increases appears in part to be a response to the Union's handbill setting forth that "10 cents was not enough." While the Respondent did not go into all the details of the problems and matters it considered prior to determination of the wage increase, the issue is whether under the circumstances it was obligated to set these forth in its letters. First, were it required to set forth its cash flow problems, such would mean revelation of current financial aspects of its business.' A second question is should Re- spondent be required to state that the determination to in- crease was made before the Union entered into the picture. A further question is, if Respondent had done so, whether such conduct in turn might not have been charged as con- stituting part of a violation for impliedly saying "see we did it without the Union and hence you don't need the Union." Upon analyzing the foregoing in the light of the cases and authorities, it appears to me that the Respondent, as to this first wage increase, had determined to put such into effect prior to union organization and then proceeded to do what it had a right to do. Respondent's initial letters were in the form often seen in union campaigns. Its letter of October 31 was essentially in response to the Union's handbill of October 30 and primarily each was in the nature of propaganda. I accordingly do not believe that the Respondent was obligated to set forth the other matters or considerations that the Gen- eral Counsel claims that Respondent should have. The prob- lem is, what can an employer say under the circumstances that would not be subject to misinterpretation or dual inter- pretation? No doubt there can be statements which, in con- junction with a wage increase, amount to a violation. However, I do not consider that to be the case herein and accordingly conclude that neither the wage increase of Octo- ber 22 nor the statements with regard thereto were violative of the Act. C. The Improved Vacation Plan The improved vacation plan referred to above had been agreed on prior to October 16; namely, October 15. It was put into effect in accordance therewith and the bulletins and letters referring thereto set forth above appear to be in the same vein as those with respect to the wage increase. I, there- 7 Of course, under certain limited circumstances these may have to be divulged to a properly designated exclusive bargaining representative. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore, also conclude that Respondent's references to vacation plan and the improvements therein were not in violation of the Act. I call your attention to our previous pattern of consider- ing and granting increases to our.hourly paid employees in May and in October. D. The Pre-Christmas Holiday and Turkey Prior to 1973, Respondent had a policy of giving a party some days prior to Christmas in the afternoon at the plant. The employees came to work in the morning dressed for the party. Admittedly, their work in the morning was not at maximum efficiency but they were expected to work. In 1973, because of changes in operations in the plant, it was not feasible to clear an area to hold such a party. Therefore, in lieu of the half holiday for the party, the Respondent decided to grant the employees a full holiday for the day before Christmas and to give them a Christmas turkey. The Respon- dent's computations are that the cost of the party, including the loss of time from work, was about $10,000 and the cost of the turkeys about the same. It is arguable whether Respondent's computations as to the total cost of the party and the half day off were complete and accurate. Assuming arguendo that the cost were accurately reflected, there is no question that by giving both the turkeys and the extra half day off, the cost of both was necessarily somewhat greater in 1973 than it had been in prior years. If the cost of half a day off in 1972 and prior years were as estimated at $3,000, then the cost for a whole day would appear to be at least double that in 1973 and the total cost in 1973 substantially higher. Actually if 800 persons were paid a minimum of $2 an hour for an 8-hour day, the cost of a full day would be at least $12,800, much greater. In any case, there appears to be a marked difference between a half day off for a party and the full day off with a turkey which was granted in 1973. This was further emphasized to employees by Respon- dent's statements with respect to this particular holiday. Re- spondent's statement, supra, from the Echoes publication of November 1973 with respect thereto clearly implies an addi- tional benefit granted by the Respondent in 1973. The state- ment emphasized a full holiday for the first time, the day before Christmas, a gain of half a day of pay, eight full holi- days, instead of seven, plus the afternoon of the party, and a Christmas gift of a turkey. The foregoing clearly appears to place the granting of the holiday the day before Christmas and the free turkey in the category of newly granted benefits by Respondent which would have the purpose and impact of Fred, May 1st is approaching rapidly and I am writing to you now because my recommendation is to grant all hourly paid employees a 20q per hour increase. Our em- ployees have been extremely patient and cooperative in the face of this unprecedented increase in the cost of living. I make the above recommendation because of the follow- ing reasons: 1. The EIA letter informing us that we are not exempt from price and wage controls. 2. May 1st is normally our time of the year to consider wages. 3. We must consider the coming increase in the mini- mum wage from $1.60 to $2.00 on May 1st. Please give this recommendation your earliest considera- tion. Dumke responded as follows at the bottom: 4/10/74 Yes, I am sure that May 1st is being anticipated by our employees. I agree that we have three very pressing rea- sons, as you mention above, to consider this increase. However, before we decide, I will call Jack Cusack for his opinion - in the light of the present union activities. /s/ Fred Dumke Fred:- Good idea, please let me know as soon as possible. /s/ Charlie Giesow 4-11-74 There appears on the side of the memorandum: Charles Giesow: 4/24/74 undermining the Union's organizational activities (unlike the You have our approval to put through a $.20 per hour wage and vacation benefits which had been determined prior to organizational activity under the circumstances set forth). I accordingly find that the holiday granted before Christmas and the turkey, in the manner in which they were granted and announced, constituted a violation of Section 8(a)(1) of the Act.' E. The Wage Increase of April 29, 1974 Giesow in an interoffice memorandum to Dumke dated April 8, 1974, stated: increase for all hourly paid employees effective 4/29/74. /s/ F. Dumke Respondent also received advice from its counsel, John Cu- sack, by letter dated April 16 to Dumke that he had spoken to a Board agent who had advised that he did not believe granting the contemplated increase would be a violation and expressed counsel's opinion that the contemplated increase would not be a violation.9 9 It was subsequently stipulated that an unspecified Board agent had been 8 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964). presented with a hypothetical situation involving a discussion of a general SWITCHCRAFT, INC. Dumke testified and Giesow asserted that the reasons for the increase of April 29 were: their ability to then give such increase legally, the impact of the increased minimum wages effective May 1 and the alleged prior pattern of granting increases on May 1 in prior years. First, although the mini- mum wage increase would not directly affect Respondent, conceivably it could have an impact on Respondent because Respondent's wages were not so much higher as to be un- related to a change in minimums. Second, while it may be arguable as to whether or not Respondent had been restricted by the cost of living council or whether its wage scales were exempt therefrom, in any case such was an asserted reason whose validity may or may not have been predicated on fact or misunderstanding. Third, as to the prior years, although Respondent in some instances gave increases twice in a year and also gave some in May, there does not appear to be an entirely consistent pattern. These and other circumstances relating to this increase raise questions as to Respondent's motivation. However, given the change in the minimum wage, given the expiration of the controls, and given the substantial increase in the cost of living in the Chicago area, supra, of some eight to nine points since the prior increase in October, the April 29 increase appears reasonable for Re- spondent to have granted. Under these circumstances, I do not find that the increase granted on April 29 was violative of the Act. The General Counsel also urges the context of this raise in light of the Union's campaign and Respondent's letters dur- ing said campaign. He points to a letter by Giesow dated March 19, 1974, and specifically refers to that part of the following two paragraphs which have been underlined: These same Strangers also Criticized the Wage Increase, the Christmas Turkey, the Improvement in the Vacation Schedule, the Additional Holiday and other Recent Benefits we have provided for you. They call them "crumbs." However, they recognized your Appreciation of all of them, and in an effort to Discredit our Sincere Motives in giving them, they filed unfair labor practice charges with the National Labor Relations Board. They are asking in effect that the Board cancel them, and at the same time they are claiming credit for forcing the Company to give them. Until these unfair charges are disposed of by the Board, the Company is practically prevented from granting any more of the benefits we have planned for you. But, let us assure you that the Company had no selfish motives when we Voluntarily gave you the above benefits, and we are confident of proving to the Board it is just another case of "Sour Grapes." The wages and working conditions in our plant are known to you to be among the best in our industry in this area. Is it likely that any union can bring about great changes, or any changes at all? We don't think so, and we believe that you don't think so either. Your Company's program of benefits and working conditions have always been so attractive that no union could justify collecting dues to principle of law and that such did not include or purport to include reference to any charges or complaints pending at the time. 471 provide the benefitsyou now have Without Cost to you and Without Strikes The General Counsel also refers to Respondent's letter of May 13, 1974, which states, among other matters: "We do not want a Union and we do not need a Union here at our Company. We have all benefited wthout one." Essentially, the General Counsel repeats his agruments (as to the first wage increase) about the context of the second wage increase, pointing out that during a 7-month period the workers benefited by a 30-cent improvement in wages, in addition to any interim increments. He asserts that this repre- sents the only period where Respondent's employees received simultaneous increases, coupled with antiunion letters and an inadequate explanation for the increases. Had this not been a period of wage-price controls and a period of severe infla- tion, the General Counsel's contentions might be more per- suasive. In light of all the facts and circumstances, I conclude, as in the case of the October 22 wage increase, that the April 29, 1974, wage increase was also not violative of the Act. F. Other Alleged Acts of Interference, Restraint, and Coercion 1. Allegation re Simerson General Counsel also alleged a violation by statements made by Respondent's personnel director to an employee when he applied for work. According to employee Wesley Pollock, shortly after Christmas 1973 he applied for a job and, although subject to a physical examination, Respon- dent's personnel director, Ralph Simerson, and a department supervisor had agreed to employ Pollock effective January 2. Pollock testified that Simerson said: "`Before we go over there, there is one more thing, Wesley,' he said, `We are not union here,' and he said, 'I just wanted to know what your feelings were in this area?"' Pollock said he told Simerson he never belonged to a union. Simerson, who is now retired, did not recall the conversation with Pollock or much else. He testified that he had spoken to and interviewed hundreds of applicants and that the number per month would exceed 30, of whom he interviewed about half. Simerson said he never told job applicants "he would like to know your feelings" or inquired about a union. He said that if the employee inquired about the Union, he would inform them that the plant was not union. Although the Respondent employs and interviews large numbers of employees continuously in its operation of some 800 people, there is no other evidence of any inquiry of any employee by Simerson or anyone else about his union feelings at the time of employment. In light of this and the limited extent of the alleged inquiry, even assuming that Pol- lock were to be credited, I am of the opinion that there may well have been a misunderstanding and, in any event, I am not crediting the version as set forth by Pollock. I accordingly find the allegation as to Simerson's10 alleged illegal conduct to be unsubstantiated. 10 :Complaint was amended to name Simerson instead of Zimmerman. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Alleged illegal conduct with respect to Bessie Agoranos Bessie Agoranos in January 1974 was told by her supervi- sor, Mary Anderson, not to talk to employees as she dis- tributed papers throughout the departments." According to Agoranos, about the end of January, Anderson said to her, 'Bessie, 'I hear you signed a union card."' According to Agoranos, after she admitted this, Anderson told her that it would be very bad for a lot of women if the Union came in because they would lose their jobs and they couldn't make the rates and things like that. Agoranos testified that either that day or the next, her supervisor, Arthur Wienski, told her that somebody had complained that she was talking, wasting time talking, while handing out papers. Agoranos testified she said to Wienski she could recall only one person, Mary Anderson, whom she spoke to. It was admitted by Wienski that he was approached by Anderson, then spoke to Agoranos and reported back to Anderson, who told him Agoranos, after leaving papers on the desk, was talking to other employees who were working. Wienski said he asked Agoranos to return to her station after distributing, papers, etc., and that she responded "Okay, Art." Wienski said about 2 days later he told Anderson he had spoken to Agoranos. Wienski also said Agoranos was wearing a union button at the time. Agoranos said that after the incident, Wienski took the papers to other departments until the week before the hearing. Wienski testified that occa- sionally he took the papers around that Agoranos had been taking. Anderson denied speaking with Agoranos about the Union except in 1972. I am crediting Agoranos, who appeared to be a credible witness, as to the statement about signing a card," thereby creating an impression of surveillance of union activities, and the threat from Anderson that it would be bad for the women if the Union came in because they would lose their jobs. On the basis of this, I am find- ing a violation of Section 8(a)(I). As to the evidence relat- ing to Agoranos' allegedly talking too much, I do not be- lieve that the General Counsel, on the state of the record, has established an illegal limitation as to union activity and accordingly find no violation. 3. Alleged illegal conduct with respect to Edgar Tolmie Prior to March 26, Tolmie worked as an in-process inspec- tor for the plastic molding department which job caused him to go into various other departments. According to Tolmie, on March 7, Arthur Wienski, his supervisor, told him that Giesow had noticed Tolmie in departments other than the molding department and asked what he was doing there. Tolmie testified that Wienski said he told Giesow that was part of Tolmie's job. Tolmie further testified, "but he said 'I want to caution you, Ed,' he said, 'that when you go into those other departments you had better only talk to the fore- 11 Mary Anderson was admitted to be a supervisor in the answer. Early in the hearing the matter arose on questioning by Respondent, who dropped the subject upon its being pointed out that such was admitted. Respondent then, toward the very end of the hearing, endeavored to establish that she was not a supervisor and amend the answer accordingly. The motion to amend was denied. 12 Post, in a different context a statement by Giesow to Tolmie respecting union organization is considered. man or leadman concerning the particular problem that you have."' According to Tolmie, "He [Wienski] said furthermore, 'I think it would be better in the future' he says, 'When you have these problems you have to take care of, you have the lead- man and the incoming inspector, Sidney Delin, take up the problem for you.' He said 'What we have in mind' he said 'is to keep you isolated in this department. [Emphasis supplied.]" With respect to part of the foregoing, Wienski was asked and testified: Did you at any time say to Edgar Tolmie, in other words, Ed, what we have in mind is to keep you isolated in this department? A. No, I never said that. I never said that to anybody. Wienski did not deny other parts of the conversation de- scribed by Tolmie as occurring on March 7 and I am credit- ing Tolmie's testimony with respect thereto, and particularly as to the threat to "isolate" him. On March 18, Giesow requested that Tolmie come to his office. Tolmie, Wienski, and another supervisor, Warren Vice (a brother-in-law of Dumke), testified about the meeting. The facts, with the ex- ception of testimony concerning the precise sequence of ar- rival of the participants which I do not consider necessary to resolve, and one pertinent conflict as to what was said, are undisputed. Wienski and Vice were in attendance as wit- nesses. Giesow started off by warning Tolmie about his re- cord for tardiness. It appears that Tolmie had been tardy on a number of occasions which he admitted on cross-examina- tion. After the discussion as to tardiness, Giesow said, ac- cording to Tolmie, "I want to warn you about your union activity. You are organizing the Union in this plant." Tolmie responded that the next time he organized would be the first. Giesow called Tolmie a liar. There is evidence that Tolmie had been active for the Union, including a union leaflet pur- portedly signed by Tolmie which is in evidence as Respon- dent's Exhibit No. 29, apparently distributed on April 2, 1974.11 Tolmie continued to discuss the matter and, according to him, Giesow said "Well if I catch you organizing the Union in this plant, out the door you go, do you understand me." According to Wienski, the issue of Tolmie's organizing was brought up by Giesow, who said "Edgar, you can organize at any time on your own time such as lunch break time, after work, that is permitted, you know, but not on company time." Vice testified: And then Charlie said, "Yes, I have something else to discuss with you." And, then Charlie continued to talk, and in talking, then he mentioned that he had occasion to know that Edgar was organizing and that he did not want Edgar to do it on company time. That was about the extent of the meeting. - Q. (By Mr. Cusak) Did either one of them speak in an unusual voice? 13 The leaflet purporting to speak for Tolmie refers to events of March 6, 7, 18, and thereafter. He refers to attending a union meeting on March 6, and on March 7 going to work "bubbling over with enthusiasm for the Union," and telling "everybody what I thought." It states that people who talked to him "were obviously reporting to the company executives," etc. SWITCHCRAFT, INC 473 A. Edgar got mad when Charlie mentioned that he was organizing , that he was organizing on company time. JUDGE: Did he say anything? THE WITNESS: Did who say anything? JUDGE: Edgar? THE WITNESS: Oh, yes, he denied it. He said, "I am not," he said, "I am not doing it on company time." And, then Charlie Giesow mentioned, he said, "Well, Edgar, you are not telling the truth. And, then Edgar said, "Well, are you calling me a liar?" Charlie said, "If the shoe fits, you wear it." The difference in the testimony in the latter connection is that Tolmie does not refer to organizing on "company time," while both Vice and Wienski on both direct and cross-exami- nation testified that Giesow referred to organizing bn com- pany time. In this instance, I believe that Tolmie became quite upset and angry at the meeting and that Vice and Wienski's recollection may be better as to the reference to "organizing on company time" and I accordingly credit them. Testimony was adduced to show that there was generally an annual raffle for the Crusade of Mercy, but whether or not solicitation was permitted on company time was not deve- loped. On the record evidence, the General Counsel has not established discriminatory prohibition of employees by Wien- ski from talking about the Union on work time. The same also applies to the allegation that Giesow threatened to discharge an employee if he engaged in union activity. Whether Giesow threatened to fire Tolmie for organizing on company time or merely told him he did not want him to do so, does not, under the circumstances found above, constitute a violation. Following these discussions with Wienski and Giesow, Tolmie was assigned to work in a more limited area which was about half surrounded by mesh wire and referred to by Tolmie (and occasionally others) as an inspection "cage." The area was described as comparable to that of the hearing room. Tolmie said he was restricted because he no longer went into certain departments. It does appear that in the new position Tolmie was more restricted than he had been in moving about the plant, although not within his department. Wienski explained the reassignment of Tolmie as follows: THE WITNESS: No, not really, I did make a transcript that we abolished one area, and I transferred him to in-coming inspection, which is a very important section. This is where we deal with our purchased parts, and we have to get these parts moving as soon as we can, so this is where I was in dire need of in-coming inspectors, and I am still looking for more, and this is the reason I made this transfer With respect to the foregoing, the evidence does not appear sufficient to show the reassignment itself was unnecessary. However, Wienski's threat, supra, to restrict or isolate Tol- mie, which I have found, appears to be related to Respon- dent's stated position at the meeting in Giesow's office that Tolmie was organizing on company time. While Respondent may have been entitled to prevent him from organizing on company time, it does not appear proper to threaten (or impose) isolation to prevent all organizational activity on the premises. The threat, which I have found Wienski made, could be so understood. I find that Respondent thereby vi- olated Section 8(a)(1). The complaint also alleges that Giesow on March 18 created the impression of surveillance of union activities. It would appear that this is predicated on the statement, supra, that reflected the Respondent knew Tolmie was organizing the Union. Whatever may be a proper rational inference from a statement which may have various (or no) implications and susceptible to various inferences, there does not appear to be the conveyance of an impression of surveillance as to Tolmie, who was evidently freely advocating the Union to persons whom he described as "tattle-tales" reporting to Respondent. Further, if such statement were a violation under the circum- stances, how could an employer legally bring up the subject of work interference? I find no such violation by Giesow. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with- the operations of the - Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow thereof. V THE REMEDY Having found that Respondent has engaged in certain un- fair labor practices in violation of Section 8(a)(1) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Switchcraft, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse and Mail Order Employees Union Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By threatening employees with reprisal and loss of em- ployment as a consequence of unionization, by creating the impression of surveillance among employees regarding their union activities, by threatening to restrict or isolate em- ployees because of union activity, and by granting increased holiday and other benefits to discourage union organization, Respondent has interfered with, restrained, and coerced em- ployees in the exercise of their rights guaranteed by Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish by a pre- ponderance of the evidence the remaining allegations of the complaint herein and it will be recommended that said com- plaint be, to that extent, dismissed 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER14 Respondent, Switchcraft, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals and loss of em- ployment because of union activities. (b) Creating the impression of surveillance among em- ployees regarding their union activities. (c) Threatening restriction or isolation for engaging in union activities. (d) Granting increased holidays and benefits to discourage union activities. (e) In any like or related manner interfering with the right of employees to self-organization, to form labor organiza- tions, to join or assist Warehouse and Mail Order Employees Union Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through re- presentatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Post at its premises in Chicago, Illinois, copies of the 14 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided by 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 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " attached notice marked "Appendix."" Copies of said no- tice, on forms provided by the Regional Director for Region 13, after being signed by an authorized representative of Re- spondent, 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. Reasona- ble steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order what steps Re- spondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed in all other respects. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with reprisals and loss of employment because of union activities WE WILL NOT create the impression of surveillance among our employees regarding their union activities. WE WILL NOT threaten restriction or isolation for en- gaging in union activities. . WE WILL NOT grant increased holidays or other bene- fits to discourage union organization. WE WILL NOT in any like or related manner interfere with the rights of employees to self-organization, to form labor organizations, to join or assist Warehouse and Mail Order Employees Union Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8(a)(3) of the Act. SWITCHCRAFT, INC