Smith & Smith Aircraft Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith & Smith Aircraft Company and Laborers' In- ternational Union, Local 8, AFL-CIO. Case 17-CA-10316 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On June 14, 1982, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions 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 conclusions2 of the Administrative Law Judge and to adopt his recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. We note that the Administrative Law inadvertently used the word "bi- ennial" in his recommended Order, in his Conclusion of Law 3, and in his "Analysis," sec. J, , entitled "The change in wage policies." The record clearly demonstrates, and the Administrative Law Judge correctly found, that Respondent had a twice per year, or "biannual," wage review and adjustment policy prior to the Union's campaign. We hereby correct this minor error. 2 In adopting the Administrative Law Judge's conclusions, we note that, in general, during a representation campaign an employer must "proceed as he would have done had the union not been on the scene." The Gates Rubber Company, 182 NLRB 95 (1970); Wells Fargo Alarm Services, a Division of Baker Industries, Inc., 224 NLRB 1I 1, 1113 (1976). When an employer, prior to a union campaign, has an established wage increase policy, the suspension of that policy during the union campaign will normally be found to violate Sec. 8(aX3) unless the employer post- pones the increases only for the duration of the campaign and informs the employees at the time of the postponement that the sole reason for its action is to avoid the appearance that its seeks to intervene in the elec- tion, and the Board finds that this in fact was its reason. Centre Engineer- ing, Inc., 253 NLRB 419, 421 (1980); Progressive Supermarkets, Inc., 259 NLRB 512 (1981). If the employer does so inform the employees, and cannot be said to have placed the onus for postponement on the union, the postponement will not be found to violate the Act. See Uarco Incor- porated, 169 NLRB 1153 (1968). Here, Respondent did not cease its wage increase policy solely in order to avoid the appearance of influencing the election and did not so inform the employees at the time it failed to grant the expected increases. Thus, upon learning of the Union's campaign, Re- spondent in January 1981 abandoned its wage increase policy, yet not until February 27 of that year at the earliest did Respondent claim to the employees that its action was due to the upcoming Board election. The hollowness of Respondent's claim that it withheld the increases merely to avoid the appearance of influencing employees' votes is apparent by its refusal after the votes had been cast in the election, and even after the Board had certified the Union, to reinstitute its wage review and adjust- ment policy. Indeed, Respondent told the employees that the wage in- crease cessation would continue until the alleged unlawfulness of Re- spondent's refusal to bargain with the Union was decided, while at the same time informing them that the wage increases would be reinstated if the employees "got rid" of the Union. Respondent thus placed the onus 264 NLRB No. 73 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 and hereby orders that the Respondent, Smith & Smith Aircraft Company, Wichita, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. for the abandonment of its established wage review and adjustment policy on the Union, thereby violating Sec. 8(a)(l) and (3) of the Act. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On January 14, 1982, I conducted a hearing at Wichita, Kansas, to try issues raised by a complaint issued on June 5, 1981,1 based on a charge filed by Laborers' In- ternational Union, Local 8, AFL-CIO (herein called the Union), on April 20 and amended on May 29. The complaint alleges that Smith & Smith Aircraft Company (herein called the Company or Respondent) violated Section 8(a)(1) of the National Labor Relations Act, as amended (herein called the Act), by interrogating employees concerning their activities in support of the Union, threatening employees with discharge for sup- porting the Union, threatening employees with plant clo- sure if they selected the Union as their collective-bar- gaining representative, threatening employees with re- duced working hours or layoffs if they selected the Union as their collective-bargaining representative, threatening employees with cessation of its previous practice of conducting periodic wage reviews and grant- ing wage increases because of the employees' union ac- tivities, and promising employees benefits if they rejected the Union. The complaint also alleges that the Company violated Section 8(a)(1) and (3) of the Act by ceasing to conduct periodic wage reviews and ceasing to grant pe- riodic wage increases because of its employees' union ac- tivities. The Company denied the Union at times pertinent was a labor organization within the meaning of Section 2(5) of the Act, denied making the threats and promises al- leged above, denied it ceased to conduct periodic wage reviews and to grant periodic wage increases because of its employees' union activities, and denied violating the Act. The issues are whether the Union at pertinent times was a labor organization within the meaning of the Act, whether the Company made the threats and promises at- tributed to it, whether the Company ceased to conduct periodic wage reviews and to grant periodic wage in- creases because of its employees' union activities, and whether, if affirmative findings are entered with respect to the foregoing, the Company thereby violated the Act. Read 1981 after all further date references omitting the year. 516 SMITH & SMITH AIRCRAFT COMPANY The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, ex- amine and cross-examine witnesses, argue, and file briefs. Briefs were filed by the General Counsel and the Com- pany. Based on my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I enter the following: FINDINGS OF FACT I. JURISDICTION The complaint alleges, the answer admits, and I find that at all pertinent times the Company was an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. It. EIABOR ORGANIZA TION Thomas Tsicouris, vice president and business agent of the Union, testified without contradiction that the Union exists for the purpose of dealing with employers con- cerning its members' wages, rates of pay, hours, working conditions, grievances, and labor disputes: that the Union represents employees of a number of employers in Kansas, including one employer in Wichita and another 40 miles from Wichita; and that the Union conducted an organizational campaign among the Company's employ- ees beginning in January. 2 That testimony is credited. The Company contends the General Counsel failed to prove by the above-credited testimony that the Union was a labor organization within the meaning of the Act because Tsicouris identified the Union as "Industrial Workers Union Local 8, AFL-CIO" and not as "Labor- ers' International Union Local 8, AFL-CIO." I find the contention frivolous. The organizations are one and the same, there is only one Local 8, it is an affil- iate of the Laborers' International Union, in turn affili- ated with The American Federation of Labor-Congress of Industrial Organizations. I therefore find the Union at all pertinent times was a labor organization within the meaning of the Act. 111. THE ALLEGED UNFAIR L.ABOR PRACTICES A. Background The Company began operations in 1975, it started out as an engineering firm. In 1978 it expanded its operations by opening a small machine shop and by performing as- sembly work. All its work involved the design, manufac- ture, and assembly of electro-mechanical and brake de- vices which original manufacturers and assemblers of military aircraft no longer produced; i.e., design, manu- facture, and assembly for what is known as the after- 2 On February 6, the Union filed a petition with Region 17 for certifi- cation as the collective-bargaining representative of the Company's pro- duction and maintenance employees. An election was conducted by the Region to determine if the Union represented a majority of the Compa- ny's employees within the unit on March 25. On July 12, the National Labor Relations Board (herein called the Board) certified that a majority of the unit employees had designated the Union as their exclusive repre- sentative for collective-bargaining purposes (Case 17-RC-9196). market. Its products were sold either directly to the De- fense Department or to manufacturers and assemblers of products for sale and delivery to the Defense Depart- ment. Prior to 1979, it purchased all of the components which it assembled from outside vendors; beginning in that year, it began to manufacture a small portion of those components. By January 1981, it manufactured about 5 percent of the components utilized in its assem- bly operations. At that time, the Company employed ap- proximately 32 production and maintenance employees under the supervision of General Manager Jack Wilson, Production Manager Dale Vining, and Foreman Clair Hempe. 3 As noted above, in January the Union launched an or- ganizing campaign among the Company's production and maintenance employees which led to a March 25 elec- tion. The complaint alleges that between the date the Union filed its petition for certification (February 6) and the date of the election (March 25) the Company com- mitted all but one of the unfair labor practices alleged in the complaint. The lone exception was the allegation that the Company repeated one of those unfair labor practices in September, following the Union's July 12 certification as the duly designated representative of a majority of the Company's production and maintenance employees and the Company's alleged refusal to meet and bargain with the Union concerning those employees' rates of pay, wages, hours, and working conditions. 4 B. The Alleged Refusal To Conduct Wage Reviews and Grant Wage Increases Wilson advised each employee when hired that his or her wages would be reviewed each 6 months dating from his or her date of hire, and at such review would be granted a wage increase commensurate with advances in the cost-of-living index since the date of the last review, plus an additional merit increase based on an evaluation of job performance since the last review.5 The Company decided to cease this practice on learn- ing of the union campaign. 6 In accordance with that decision, from the time the Union commenced its campaign (January 1981) through the date of the hearing before me (January 1982), the Company has not conducted any wage reviews or grant- ed any wage increases to its production and maintenance employees (except for two employees whose wage rates were upgraded when they changed to higher rated jobs). 3 The complaint alleges, the answer admits, and I find at all pertinent times that Wilson, Vining, and Hempe were supervisors and agents of the Company acting on its behalf within the meaning of the Act After its certification, the Union filed a charge with Region 17 alleg- ing that the Company refused to meet and bargain with it concerning the employees' wages, etc. On October 13 the Region issued a complaint based on that charge; that case is presently pending before the Board (Case 17-CA 10636). 5 Wilson confirmed extensive employee testimony that this was the Company's practice prior to the commencement of the union campaign. I Wilson so testified. 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Alleged February 10 Discharge Threat and Interrogation Employee Stacy Whiley testified that on February 10 Hempe stopped him while he was operating a forklift, told him to shut off the motor, and stated he had a ques- tion to ask him. After Whiley turned off the motor but before Hempe addressed his question to him, Wilson ap- proached Hempe, stated he knew who the ringleaders were and did not care how it was done, he wanted them out of the plant, turned and walked away. Whiley stated employee Mark Hill was standing nearby when the inci- dent took place. Whiley also testified that the same day or the next day, he went to Wilson's office to explain why he had not reported to work for a few days prior to February 10; told Wilson he had not been able to come in because he had been involved in an auto accident; that Wilson accepted his explanation and asked him if he was riding to work with Mark Hill; that he replied affirma- tively; that Wilson stated Hill was a union supporter and it was not a good idea to associate with him, then asked how he felt about the Union; and that he replied he did not know anything about the Union, since he had just started working at the Company. While Hill corroborated Whiley's testimony concern- ing Wilson's alleged ringleader remark to Hempe, on direct examination he stated the incident occurred on February 10; on cross-examination he stated at one point the incident occurred on May 11 and at another point it occurred a few days after the election notices were posted (March 4 or 5). Hill also contradicted Whiley concerning the circumstances surrounding the alleged remark, stating that he, Whiley, and two other employ- ees were seated at a table awaiting the bell for the start of the shift when Wilson approached and spoke to Hempe. Wilson testified unequivocally that he was out of the country between February 7 and 13; that during that ab- sence his business interests took him to Germany, Ire- land, and England and he could not possibly have made the February 10 remarks attributed to him by Whiley and Hill. Wilson further testified he never made the ring- leader remark nor the rider-interrogation comments at any other time, including the one time he conferred with Whiley in his office, which occurred when he summoned Whiley to his office to inquire about the condition of Whiley's auto following an accident involving that auto. Wilson was a convincing witness, both as to the dates of his absence from the country and his denials that he made the February 10 remarks alleged in the complaint, particularly when contrasted with the contradictory tes- timony of Hill and Whiley. I therefore credit Wilson's testimony. In view of that finding, I find on February 10 Wilson did not threaten to discharge the Union's ring- leaders and did not interrogate Whiley concerning his at- titude toward union representation. D. The Alleged Mid-March Threats and Promises by Wilson 1. Preliminary It is undisputed that in mid-March Wilson called and conducted a series of conferences with small groups of production and maintenance employees. Fourteen employees and Wilson testified concerning remarks Wilson made in the course of five separate meet- ings. The coercive remarks Wilson allegedly made in the course of those meetings were: (1) that there were not going to be any wage reviews or adjustments until the company-union dispute was resolved; (2) if the employ- ees voted against union representation, wage adjustments would be resumed and the increases granted would be made retroactive to the dates they normally would have been granted; (3) the currently effective insurance plan would be improved after and in the event the employees voted against union representation; (4) the Company had plans to expand its operations, but would abandon them if the employees voted for union representation; (5) the Company could and might reduce hours or lay off em- ployees and purchase the components it assembled at the plant from outside vendors if the employees voted for union representation; and (6) the Company would close its doors before it would accept union representation of its employees. Each of these alleged threats and promises will be discussed and resolved below. 2. The wage review and adjustment allegation Both the employee witnesses and Wilson testified at each of the meetings in question, Wilson expressed his opposition to union representation of the Company's em- ployees and made a detailed comparison between the current wage rates and benefits of the Company's em- ployees and those of employees at another Wichita com- pany covered by an agreement between that employer and the Union. They also were in agreement that Wilson informed the employees there were not going to be any wage reviews or adjustments until the company-union dispute was resolved. On the basis of the foregoing, I find and conclude that, during the course of the mid-March conferences, the Company by Wilson expressed to employees the Compa- ny's animus toward their union representation and ad- vised employees there were not going to be any wage re- views or adjustments until the company-union dispute was resolved. 3. The retroactive wage adjustment allegation Three employees (George Stander, Roger Vantleven, and Stacy Whiley) testified at one of the five meetings attended by the three of them, Wilson, Harold Nevitt, and three other employees who were not called to the stand, that one of them asked Wilson whether, in the event the Union lost the election and wage reviews and adjustments were resumed, the adjustments granted would be retroactive to the date they would have been granted but for the union campaign and that Wilson re- sponded affirmatively. Both Wilson and Nevitt denied 518 SMITH & SMITH AIRCRAFT COMPANY Wilson made any reference to the grant of any retroac- tivity, though Wilson conceded he stated wage reviews and adjustments would be resumed when and if the com- pany-union dispute was resolved by a vote against union representation. None of the 10 employees who testified to what transpired at the other 4 meetings testified to any remarks by Wilson concerning the retroactivity of any wage adjustments granted after, and in the event, the Union lost the election. I credit Wilson and Nevitt's denial that Wilson made any mention of retroactive wage adjustments during the meeting attended by Wilson, Nevitt, Stander, Vantleven, and Whiley. Both Wilson's and Nevitt's testimony was direct and forthright, and it would appear somewhat il- logical to make such a significant commitment at only one of the several meetings. On the basis of the foregoing, I find and that conclude during the mid-March conferences, Wilson did not prom- ise employees the Company would grant retroactive wage adjustments to them if they rejected union repre- sentation. 4. The improved insurance benefit allegation The same three employees (Stander, Vantleven, and Whiley) testified that during the course of the meeting just described Wilson stated the Company would im- prove the existing insurance plan in the event the em- ployees voted against union representation. Wilson testified that in a number of the meetings em- ployees expressed dissatisfaction over both the cost and the benefit levels of the insurance program covering them and that he responded by advising them the Com- pany was also dissatisfied with the cost and benefit levels of the insurance program, that each year it shopped around among various insurance carriers to see if a better program was obtainable, without success, and that the Company was going to persist in its efforts to secure a better program and, if it were able to do so, it would, but that it could not do anything until the union repre- sentation question was resolved. Nevitt was unable to recall if there was any discussion concerning the insurance program at the meeting he at- tended with Wilson, Stander, Vantleven, Whiley, and three others. Employee David Pomeroy testified that Wilson made the comments he said he made concerning the insurance program during the meeting Pomeroy attended (along with Chris Condon and another employee). Employees Beth Miller and Granger Smith also testi- fied that Wilson made the comments he said he made during the meeting they attended (along with Robert Landrum and another employee). Employee Landrum testified on direct examination that Wilson stated the Company wanted to and would improve the insurance program in the event the employees voted against union representation, and on cross-examination testified Wilson stated the Company could not and would not take any action concerning improvements in the insurance pro- gram until the union representation question was re- solved. Employees Galon Frick and Patsy Miller testified that Wilson made the comments he said he made concerning the insurance program during the meeting they attended (along with three other employees who did not testify). The four remaining employees who testified (Chris Condon, Paul Cowing, Marvin Dickson, and Mark Hill) were not questioned concerning any statements Wilson made about the insurance program at the meetings they attended. I credit the testimony of Wilson and those employees who corroborated his testimony concerning the remarks Wilson made when he discussed the insurance program during the mid-March employee meetings; i.e., I find, on the basis of Wilson's testimony, substantial employee cor- roboration thereof, and the likelihood he would rejoin to expressions of employee dissatisfaction in the manner he stated, that he responded to employee expressions of dis- satisfaction over the insurance program and its costs with the rejoinder the Company was also dissatisfied with them, that it had for years tried to secure a better pro- gram; that it had not succeeded in finding it; that it would persist in its efforts to find a better program; that if the Company found a better program, it would place it in effect; and that the Company neither could nor would make any changes in the program until the union repre- sentation question was resolved. 5. The plant expansion allegation Employee Robert Landrum testified under direct ex- amination that during the course of the mid-March meet- ing he attended (along with Wilson, Beth Miller, Grang- er Smith, and a fourth employee who did not testify) Wilson stated the Company had the property, plans, and financing for the construction of additional production facilities at the site, but that it was not going to proceed with the expansion if the employees voted' for union rep- resentation due to the increased costs that union repre- sentation would cause. Under redirect examination, Lan- drum testified differently, first repeating his statement that Wilson remarked the Company had the property, plans, and financing for the expansion, but changing his testimony concerning the last portion of Wilson's re- marks by stating Wilson then said the Company was going to refrain from proceeding further with its con- struction plans until the union representation question was resolved. Wilson confirmed the latter version. Employees Patsy Miller and Galon Frick testified Wilson related the latter version to them at a different meeting. Employee Beth Miller was not questioned on this sub- ject. Employee Granger Smith stated he had no recollec- tion concerning any remarks by Wilson regarding the subject of expansion of the physical plant. None of the other nine employees testified to any re- marks by Wilson concerning any expansion of the physi- cal plant. In view of the unanimity of the testimony of those who recalled Wilson's remarks that his recitation con- cerning the expansion of plant facilities was limited to a statement the Company had the property, plans, and fi- nancing for an expansion of the plant but was going to refrain from proceeding any further with its plans until it learned the outcome of the election, I find and conclude 519 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that is what Wilson stated in the course of the mid- March meetings at those meetings where the subject was discussed. 6. The farm-out of work, layoff, or discharge allegation Employee Landrum testified that, in the course of the mid-March meeting called by Wilson and attended by Landrum, Beth Miller, Granger Smith, and three other employees who did not testify, Wilson stated work could be farmed out and employees laid off if the Union were voted in. Both Beth Miller and Granger Smith, who at- tended that meeting, contradicted Landrum's testimony, stating Wilson did not make any such statement during the course of the meeting. Wilson denied he made any reference to layoffs during any meeting, though he re- called at some meetings stating the Company had to remain competitive to stay in business, and to remain competitive it had to purchase whatever components it used in its assembly operations from vendors when those vendors could manufacture those components at a lower cost than the Company could manufacture them. Employee Chris Condon testified that in the course of another of the mid-March meetings called by Wilson and attended by Condon, David Pomeroy, and another em- ployee who did not testify Wilson stated the Company might have to farm out work he but did not recall any mention of layoffs; that Wilson stated the Company had to be competitive if it were going to continue to secure government contracts; and that Wilson stated the Com- pany had to buy the components it assembled from ven- dors when and if those vendors could manufacture them more efficiently than the Company could. Pomeroy testi- fied that in the course of that meeting Wilson stated the Company could farm out work and lay off employees if it chose and talked about the need for the Company to be competitive. As noted above, Wilson denied he made any mention at that or any other meeting of any layoffs, but did discuss the Company's need to be competitive. Employees Patsy Miller, Marvin Dickson, and Galon Frick testified that there was no mention of work farmed out or layoffs at the mid-March meetings they attended. The balance of the employee witnesses were not ques- tioned on this subject. An analysis of the testimony recited above discloses that only one witness (Landrum) testified that Wilson said the Company would or might farm out work and lay off employees if the Union came in. Condon did not recall any mention of layoffs, Pomeroy did not testify that a mention of work farmed out and layoffs was cou- pled with employee choice of union representation, Lan- drum's testimony was contradicted by two employee witnesses present at the meeting he attended, both Po- meroy and Condon partially corroborated Wilson's testi- mony that he had discussed the purchase of components from vendors within the context of maintaining the Com- pany's competitive position, and six employees (Condon, Beth Miller, Patsy Miller, Smith, Dickson, and Frick) corroborated Wilson's testimony he did not mention lay- offs at any of the mid-March meetings. On the basis of the above, I credit the testimony of Wilson and those witnesses who corroborated his testi- mony that Wilson did not state during the course of the mid-March meetings the Company would or might farm out work and layoff employees if the employees voted for union representation. 7. The plant closing allegation Employees Chris Condon, Paul Cowing, Mark Hill, Robert Landrum, and David Pomeroy testified that, in the course of the mid-March meetings called by Wilson which they attended, Wilson stated he would close the plant doors before he would let the Union in. Employee Marvin Dickson, who attended the meeting at which Cowing and Hill allegedly heard Wilson make that state- ment, contradicted their testimony. Employees Beth Miller and Granger Smith, who attended the meeting at which Landrum allegedly heard Wilson make the state- ment in question, contradicted Landrum's testimony. Employees Galon Frick, Harold Nevitt, and Patsy Miller, who attended meetings where Condon, Cowing, Hill, Landrum, and Pomeroy were not present, testified that Wilson made no such comment during the meetings they attended. The balance of the employee witnesses (George Stander, Roger Vantleven, and Stacy Whiley) neither were asked whether Wilson made any mention of plant closure at the meeting they attended nor testified he so stated. Several of the witnesses who testified to the utterance of the remark in question also testified that Wilson stated he would negotiate in good faith with the Union if it won the election and one (Hill) supplemented that statement with testimony that Wilson said he was not going to give away the farm, but he would negotiate in good faith with the Union if it won the election. Wilson denied he said he would close the plant doors if the Union won the election at any of the mid-March meetings; testified he made the comment attributed to him by Hill just noted; and testified he made the com- ments concerning the Company's need to remain com- petitive outlined heretofore. I credit Wilson's denial and the testimony of those wit- nesses supporting that denial. There was a suspicious similarity to the employee testimony concerning the lan- guage allegedly employed by Wilson when he made the remark in question, it seems illogical, as some of the wit- nesses to his making the alleged statement testified, that he would at the same meeting state he was going to bar- gain in good faith with the Union in the event the Union won the election. I find, rather, the employee witnesses who testified to the alleged threat drew the conclusion from his remarks concerning the competitive needs of the Company that it might cease business if the Union's contract demands were more than it felt it could afford and still remain competitive. E. Wilson's Alleged Late March Threat To Close the Plant On direct examination, employee Roger Vantleven tes- tified he was absent from work on May 22; that when he reported for work on May 23 his timecard was not in the timerack and he went to the desk of a secretary near Wilson's office to retrieve it; that he observed Wilson talking to Vining when he reached the desk; and that he 520 SMITH & SMITH AIRCRAFT COMPANY heard Wilson tell Vining he brought the plant to where it was and he would close it before letting the Union in. On cross-examination, Vantleven testified he overheard Wilson make the comments in question 2 or 3 days before the election. 7 Wilson denied he made the comments to Vining attri- buted to him by Vantleven at any time. Vining was not asked by either counsel whether or not Wilson made the comments attributed to him by Wilson. I credit Wilson's denial; he was a convincing witness, while not only did Vantleven vary the date when the al- leged remarks were uttered, he was hesitant in his testi- mony. I therefore find and conclude that Wilson did not make the comment to Vining that he would close the plant before letting the Union in during the course of a conversation in his office with Vining, where he was overheard doing so by Vantleven, on either March 23 or May 23. F. Wilson'v Alleged March Threat To Abolish Wage Reviews or Adjustments Because of Employee Union Activity In addition to the meetings he conducted with small groups of production and maintenance employees in mid- March, Wilson summoned all the production and mainte- nance employees to four general meetings prior to the March 25 election. The first such meeting was held on February 27. Wilson corroborated extensive testimony by employee witnesses that he repeated at several of those meetings there were not going to be any wage reviews or adjust- ments. until the union representation question was re- solved, so I find that both in late February and in March Wilson made that statement to assembled production and maintenance employees. Employee witnesses also corroborated Wilson's testi- mony that he repeatedly referred to language contained in the election notice posted on the employee bulletin board to the effect the Company was barred from grant- ing any economic improvements to the employees to in- fluence their vote in the election as his ground for ceas- ing to conduct the previous biennial wage reviews and adjustments, so I find Wilson made that explanation of the changed policy in February and March to assembled production and maintenance employees. G. Hempe's Alleged March Threat To Abolish Wage Reviews and Adjustments Because of Employee Union Activity Counsel for the General Counsel did not produce any testimony in support of the complaint allegation (par. 5(f)) that Clair Hempe in mid-March threatened employ- ees with the abolition of scheduled merit pay reviews and increases because of their participation in union ac- tivities. 7 The election was held on March 25. H. Vining's Alleged May 6 Threat To .4bolish Wage Reviews and Adjustments Because of Employee Union Activity Employees Roger Vantleven and Mark Hill testified that in early May Vining responded to their inquiries concerning when the Company was going to review and adjust their wages (over 6 months had gone by since their last review and adjustment) with the statement there were not going to be any wage reviews and adjust- ments until the company-union dispute was resolved. Vining corroborated Vantleven's testimony and, while not recalling any exchange with Hill on the subject, stated he made the statement in question to a number of employees who asked him when they were going to re- ceive a wage increase. Vining further testified the em- ployees were constantly expressing their concern over not receiving any wage increases. On the basis of the foregoing, I find and conclude that on or about May 6, and on a number of other occasions, Vining told employees there were not going to be any wage reviews or adjustments until the company-union dispute was resolved. I. Wilson's Alleged September 15 Threat To Abolish Wage Reviews and Adjustments Because of Employee Union Activity As noted above, on July 12 the Board certified that a majority of the Company's production and maintenance employees had voted for union representation at the March 25 election and subsequently issued a complaint against the Company based on the Union's charge the Company subsequent to the certification refused to bar- gain with the Union concerning the employees' rates of pay, wages, hours, and working conditions. In September, due to employee unrest over not receiv- ing any wage increases since the start of the Union's or- ganizing campaign in February and their constant inquir- ies concerning when increases were going to be granted, Vining recommended that Wilson conduct a general meeting of the employees to advise them of the Compa- ny's current position. Wilson concurred and called all the employees to a meeting on September 15. At that meeting, Wilson informed the employees the Union's refusal-to-bargain case was pending before the Board; no negotiations were scheduled and none prob- ably would be scheduled until the Board issued its deci- sion in that case; and there were not going to be any wage reviews or adjustments until the refusal-to-bargain case was decided; asked what would have to occur for an earlier resumption of the Company's wage review and adjustment policy, Wilson stated that one way to secure resumption of the former policy was to get rid of the Union, commenting only a few employees still supported it. Asked how to get rid of the Union, Wilson responded he could not tell the employees how to do that and sug- gested those who wanted to do that talk to the Union's remaining supporters and get them to abandon their sup- port of the Union.8 8 Wilson and Vining confirmed extensive employee testimony that Wilson reiterated the response he consistently gave following the Febru- Continued 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. Analvsis and Conclusions I. The change in wage policies Findings have been entered above that, as the com- plaint alleged, the Company suspended its biennial wage review and adjustment policy as soon as it learned the Union was attempting to represent its employees, and has maintained that suspension ever since. The General Counsel contends that suspension was in- tended to, and did, discourage employee support of the Union and thereby violated Section 8(a)(l) and (3) of the Act. The Board and the courts consistently have supported that contention, in the course of so holding rejecting the employer defense that it suspended wage increases fol- lowing the commencement of a union organizational campaign to avoid the charge it was attempting to influ- ence the campaign by granting wage increases.9 I therefore find the Company by suspending its normal preunion practice of conducting biennial wage reviews and granting cost-of-living and merit increases at the commencement of the union campaign violated Section 8(a)(l) and (3) of the Act. 2. The alleged Wilson February 10 discharge threat and interrogation Findings have been entered above that Wilson did not make the February 10 discharge threat and interrogate all employee concerning his union sentiments, as alleged in the complaint. I therefore recommend those portions of the complaint so alleging be dismissed. 3. The alleged mid-March promises of retroactive wage increases and improvements in the insurance program Findings have been entered above that Wilson did not, in mid-March, promise employees retroactive wage in- creases if they voted against union representation and that his comments concerning improvements in the exist- ing insurance program were limited to agreement the current program could stand improvement and if the Company could negotiate a better plan it would, but that ary 27 meeting to inquiries concerning wage increases; i.e., that there were not going to be any adjustments until the company-union dispute was resolved. The balance of the findings set out above are based on mu- tually corroboratory employee testimony (Cowing, Stander, Whiley, Po- meroy, etc.). 9 East Maine Medical Center v. V.L.R.B., 658 F.2d I (1st Cir. 1981), enfg. 253 NLRB 224 (1980); N.L.R.B. v. Howard Johnson Company d/b/o Howard Johnson Distribution Center, 637 F.2d 373 (5th Cir. 1981), enfg. 250 NLRB 492 (1980); N.LR.B. v. Laredo Coca Cola Bottling Co., 613 F.2d 1338 (5th Cir. 1980), enfg. 241 NLRB 167 (1979); N.L.R.B. v. Olym- pic Medical Corporation, 608 F.2d 762 (9th Cir. 1979), enfg. 236 NLRB 1117 (1978); The Catholic Medical Center of Brooklyn and Queens, The Mary Immaculate Hospital Division, and St. Mary's Hospital Division v. NL.R.B., 620 F.2d 20 (2d Cir 1980), enfg. 245 NLRB 808 (1979); Hol- land American Wafer Company, 260 NLRB 267 (1982); Palomar Transport. Inc., 256 NLRB 1176 (1981); Great Scot of Florida, Inc., 256 NLRB 885 (1981); Relcor. Inc.. d/hb/a Modesto Convalescent Hospital, 235 NLRB 1059 (1978); Wells Fargo Alarm Services. Division of Baker Industries. Inc., 224 NLRB 1111 (1976); Russell Stover Candies, Inc., 221 NLRB 441 (1975); Florida Steel Corporation, 220 NLRB 260, 220 NLRB 1201, 221 NLRB 371, and 221 NLRB 554, etc (1975). it would not do anything until the representation ques- tion was resolved. Those comments do not constitute a promise to im- prove the insurance program if the employees reject union representation. I therefore recommend those portions of the complaint so alleging be dismissed, as well as those relating to al- leged promises of retroactive wage increases. 4. The alleged Wilson mid-March threats of plant closure, abandonment of expansion plans, and farm- out of work accompanied by layoffs or discharges Findings have been entered above that Wilson in the course of the mid-March meetings did not threaten to close the plant if a majority of the employees voted for union representation, that his comments concerning ex- pansion of the plant facilities were limited to a statement that the Company was going to hold off on implement- ing its plans until the results of the election were known and the extent union representation, if it resulted, in- creased its operational costs, and that his comments con- cerning the farm-out of work were limited to a statement the Company had to be competitive, and that meant if a vendor could supply the small portion of the components it manufactured at its premises at a cheaper cost than the Company could produce them, it had to purchase rather than manufacture those components to bid competitively. with no mention of any layoffs or discharges. Neither Wilson's comments concerning expansion of the plant facilities nor his comments concerning possible work farmed out constitute threats violative of the Act. I therefore recommend those portions of the complaint alleging the Company violated the Act by threatening to close the plant, abandon its expansion plans, and farm out work with consequent layoff or discharge of employ- ees, in the event the employees voted for union represen- tation, be dismissed. 5. The alleged Hempe March threat to abolish wage reviews and adjustments Findings have been entered that the General Counsel failed to produce any evidence in support of this com- plaint allegation. I therefore recommend its dismissal. 6. The alleged February-September Wilson threats to abolish wage reviews and adjustments and the alleged May Vining threat to the same effect Findings have been entered that Wilson repeatedly ad- vised employees there were not going to be any wage re- views or increases until either the union representation question was resolved or, as he stated in September, until the litigation stemming from the Union's organization effort was terminated. Just as the suspension of the wage review policy was violative of the Act, so are Wilson's and Vining's repeat- ed statements of that change in policy due to the em- ployee attempts to secure union representation. That the Company was aware that suspension was discouraging continued employee support of the Union and that the Company sought to accomplish that end is clearly dem- onstrated by Wilson's September statement the employ- 522 SMITH & SMITH AIRCRAFT COMPANY ees could secure a resumption of the former wage review and wage increase policy by getting rid of the Union. I therefore find and conclude that Wilson's and Vin- ing's repeated statements that there were not going to be any wage reviews or increases until all pending litigation arising from the Union's organization effort was termi- nated constituted an attempt to discourage employee sup- port of the Union and violated Section 8(a)(1) of the Act. CONCI.USIONS OF LAW 1. At all pertinent times the Company was an employ- er engaged in commerce in a business affecting com- , merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all pertinent times the Union was a labor organi- zation within the meaning of Section 2(5) of the Act. 3. The Company violated Section 8(a)(1) and (3) of the Act by suspending its normal policy of conducting bi- ennial reviews of its employees' wages and granting cost of living and merit increases from and after January 1981, when the Union commenced its organizational campaign. 4. The Company violated Section 8(a)(1) of the Act by telling its employees they were not going to be reviewed and their wages were not going to be increased until all litigation arising out of the Union's organizational effort was terminated. 5. The Company did not otherwise violate the Act. 6. The aforesaid unfair labor practices affected and affect commerce as defined in the Act. THE REMEDY Having found that the Company engaged in unfair labor practices, I recommend it be directed to cease and desist therefrom and take affirmative actions designed to effectuate the purposes of the Act. I have entered findings that the Company violated the Act by ceasing to conduct biennial reviews of its em- ployees' wages and ceasing to grant increases at such re- views commensurate with changes in the cost-of-living increase since the preceding wage adjustment and an ad- ditional increase based on a merit review of the employ- ees' job performances since the last review. To restore the affected employees to the wage levels they would have enjoyed but for the discrimination practiced against them, I recommend the Company be directed to grant to each employee within the unit in January 1981 and each employee hired for work within the unit thereafter in- creases retroactive to dates falling each 6 months after their last wage review and adjustment prior to January 1981, each such increase to consist of an amount com- mensurate with the change in the cost-of-living index customarily employed by the Company since the last ad- justment prior to January 1981, and such additional amount based on merit at each adjustment date as the Company and the Union may agree upon, with disagree- ment thereon, if any, referred to the compliance stage of this proceeding, with the amounts due and interest there- on calculated and computed in the manner set out in F. W. Woolworth Company, 90 NLRB 289 (1950). Florida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). I have also entered findings the Company violated the Act by continually telling its employees that they would not receive any wage reviews and increases until litiga- tion arising out of the Union's organizational campaign terminated. To mitigate that unfair labor practice, I rec- ommend the Company be directed to cease and desist therefrom and to affirmatively advise the employees it will resume its wage review and increase policy and make them whole for the period it refrained from follow- ing that policy. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Sec- tion 10(c) of the Act, I recommend the issuance of the following: ORDER1 0 The Respondent, Smith & Smith Aircraft Company, Wichita, Kansas, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from its policy of refraining from its former wage policy, i.e., conducting biennial wage re- views of its production and maintenance employees and granting them wage increases commensurate with changes in the cost of living since their last review plus an addition thereto based on merit, and cease and desist from telling those employees their wages were not going to be reviewed or adjusted until all litigation arising from the Union's organizational effort was resolved or termi- nated. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Make whole all production and maintenance em- ployees employed by the Company on and after January 1981 in the manner set out in "The Remedy" portion of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and any other records necessary to ana- lyze and determine the amounts due to the employees under the terms of this Decision. (c) Post at its premises in Wichita, Kansas, copies of the attached notice marked "Appendix." 1 Copies of said notice, on forms provided by the Regional Director for Region 17, shall be signed by an authorized representa- tive of the Company and posted immediately upon their receipt and maintained for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable 1' 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 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. I 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 523 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steps shall be taken to ensure that said notices are not al- tered, defaced, or covered by other material. (d) Notify the Regional Director for Region 17, in writing, within 15 days from the date of this Order, what steps the Company has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL cease telling you that we will not review your wages each 6 months dating from your hiring date and we will not grant you a wage in- crease at each such review based on changes in the cost-of-living index since the last review and an ad- ditional sum on merit. WE WILL resume conducting wage reviews in ac- cordance with the policy just indicated and granting wage increases based on changes in the cost-of- living index between review dates and merit. WE WILL make whole all of our production and maintenance employees in our employ in January 1981 and those employed subsequent to that date for the wage losses they suffered by virtue of our failure to conduct reviews of their wages and our failure to grant them wage increases pursuant to the policy set out above, with interest on the sums due. SMITH & SMITH AIRCRAFT COMPANY 524