Orval Kent Food Co., Inc.

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orval Kent Food Company , Inc. and Local 738, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 13-CA-24910 31 January 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 15 August 1985 Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order. We agree with the judge's findings that the Re- spondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and enforcing a dis- criminatory, no-talking rule; by threatening dis- charge or other reprisals against employees because of their union activities; and by promising a wage increase in the event the employees were no longer represented by the Union. For the following rea- sons, however, we disagree with the judge's fur- ther finding that the Respondent violated Section 8(a)(3) by failing to consider its maintenance em- ployees for or to grant them merit increases on or after 15 September 1984.2 The record shows that, prior to the advent of the Union at the Respondent's facility, the Re- spondent had no uniform practice of granting merit increases to its maintenance employees. The Re- spondent had reviewed the performance of em- ployees and had granted merit increases, but this was done on a generally irregular basis and at the discretion of management. In May, the Respondent granted all maintenance employees a general wage increase of 30 percent in connection with its change in work schedules which had caused em- ployees a substantially decreased opportunity to work overtime. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Hereafter, all dates refer to 1984 unless noted otherwise In the meantime, in April an organizing cam- paign among the maintenance employees had com- menced at the Respondent's facility. An election was held on 20 June, and on 28 June the Union was certified as the collective-bargaining represent- ative for the Respondent's maintenance employees. Thereafter, the parties engaged in contract negotia- tions, which were still in progress at the time of the June 1985 hearing before the judge. During these negotiations, the Respondent made a proposal concerning its right to grant merit increases and also proposed a general wage increase. The Union vacillated regarding the Respondent's merit in- crease proposal, and it rejected the Respondent's general wage increase proposal. Since the general wage increase was implemented in May 1984, no wage increases, either general or merit, had been granted to the maintenance employees as of 10 June 1985, the first day of the hearing before the judge. The Respondent's maintenance superintend- ent, Zastrow, testified that he did not grant any merit increases in the June 1984-1985 time period because of the ongoing negotiations with the Union and that, had the Union not come into the shop, he would have granted merit increases to his crew or at least to some of them. The judge found violative of Section 8(a)(3) the Respondent's failure to consider or to grant the maintenance employees merit increases from 15 September 1984.3 The judge rejected the Respond- ent's contention that, in May 1984, it had discontin- ued its established practice of granting merit in- creases at irregular intervals and thereafter would grant annual reviews of all employees dating from the May 1984 general wage increase. In so doing, the judge noted that the Respondent had proposed both merit and general wage increases at the nego- tiating sessions with the Union. She also noted Zas- trow's testimony that the negotiations with the Union were the sole reason he had not granted any merit increases after the Union's certification and that merit increases would have been granted had the Union not come into the shop. In finding the Respondent's conduct to have been motivated by an antiunion purpose, the judge noted certain of the Respondent's statements which were found to violate Section 8(a)(1) and other conduct outside the 10(b) limitation period which she concluded showed Zastrow's strong opposition to the Union. In finding the violation, the judge noted particular- ly Zastrow's testimony that he would have granted merit increases had the Union not come into the shop. 2 The judge limited the period of the violation to the 6 months preced- ing the filing of the charge on 15 March 1985 278 NLRB No. 57 ORVAL KENT FOOD CO 403 As noted above, we disagree with the judge's finding that the Respondent's failure to consider or to grant merit increases to the maintenance em- ployees from 15-September 1984 violated Section 8(a)(3). In this regard, the record clearly shows that the Respondent had no consistent, uniform practice of granting merit increases but had only an irregular practice of granting merit increases on a discretionary basis. It is well established that dis- cretionary merit increases are a mandatory subject of bargaining. NLRB v. Katz, 369 U.S. 736, 745- 747 (1962). In fact, the Respondent presented a proposal to the Union regarding management's right to grant merit increases. The Union did not accept that proposal. In these circumstances, it has not been established that the Respondent's failure to grant merit increases was due to union animus rather than to the parties' failure to reach agree- ment on this issue. Contrary to the judge, we do not attach significance to Zastrow's testimony at- tributing the withholding of merit increases to the ongoing negotiations and to the presence of the Union in the shop. These remarks were merely a realistic statement of the effects of the bargaining obligation which the Respondent incurred when the Union was certified to represent the mainte- nance employees. There is no allegation here that the Respondent failed to meet its bargaining obliga- tion on this matter, and the evidence is insufficient to establish that its withholding of the merit in- creases was for any reason other than the parties' failure to agree on this issue. See Ithaca Journal News, 259 NLRB 394 (1981). Accordingly, we shall dismiss this allegation, and we shall modify the judge's recommended Order accordingly.4 ORDER The National Labor Relations Board orders that the Respondent, Orval Kent Company, Inc., Wheeling, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating, maintaining, and enforcing a rule which forbids employees to discuss unions during periods when they are expected to be ac- tively working, even when such discussion does not interfere with work, but which permits em- ployees, during such periods, to discuss other non- work subjects. (b) Threatening to discharge or inflict other re- prisals on employees for union activity. 4 In dismissing this allegation, we have considered the 8(a)(1) violation we have found in Zastrow's telling an employee that the employees could get a raise on 21 June 1985 (1 year after the Union's election victo- ry) when the Union was voted out. In light of our above discussion, however, we find the 8(a)(3) allegation has not been established in this case (c) Promising, employees wage increases once they are no longer represented by Local 738, Inter- national Brotherhood- of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (d) In any- like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. - 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind its rule which forbids employees to discuss unions during periods when they are ex- pected to be actively working, even when such dis- cussion does not interfere with work, but which permits employees, during such periods, to dicuss other nonwork subjects. - (b) Post at its Wheeling, Illinois facility copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 5 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT promulgate, maintain, or enforce a rule which forbids you to discuss unions during periods when you are expected to be actively working even when such discussion does not inter- fere with work, but which permits you, during such periods, to discuss other nonwork subjects, and WE WILL rescind our rule to this effect. WE WILL NOT threaten to discharge or inflict other reprisals on you for union activity. WE WILL NOT promise you wage increases once you are no longer represented by Local 738, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. ORVAL KENT FOOD COMPANY, INC. Douchan Pouritch, Esq., for the General Counsel. Anthony G. Erbacci, Esq., of Chicago, Illinois, for the Charging Party. Joseph P. Carey, Esq., of White Plains, New York, for the Respondent. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. This case was heard before me in Chicago, Illinois, on 10 and 11 June 1985, pursuant to a charge filed on 15 March 1985 and a complaint issued on 30 April 1985, and amended on 11 June 1985. The complaint as amended al- leges that Respondent Orval Kent Food Company, Inc. violated Section 8(a)(1) of the National Labor Relations Act by promulgating, maintaining, and enforcing a no- solicitation rule which discriminated against employees' union activities; by threatening reprisals against employ- ees for activities on behalf of Local 738, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union); and by promising employees pay increases if the Union lost a representa- tion election . The complaint further alleges that Re- spondent has violated Section 8(a)(1) and (3) of the Act since 15 September 1984 by suspending its practice of performing annual reviews of its employees and imple- menting accompanying wage increases as a result of its ongoing collective bargaining with the Union. On the basis of the entire record,' including the de- meanor of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a corporation with an office and place of business in Wheeling, Illinois. Respondent has at all material times been engaged in the manufacture and non- retail sale and distribution of food products. During the calendar year preceding the issuance of the complaint, a representative period, Respondent sold and shipped from its Wheeling facility products, goods, and services valued in excess of $50,000 directly to points outside Illinois. I find that, as Respondent admits, it is engaged in com- merce within the meaning of the Act, and that assertion of jurisdiction over its operations will effectuate the poli- cies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background About April 1984, employee Napoleon and another employee started to pass out union authorization cards to the other maintenance employees. Napoleon induced be- tween three and five of his fellow employees to sign cards. On 11 May 1984 the Union petitioned for a repre- sentation election among Respondent's employees. On an undisclosed date before the election, Maintenance Super- intendent George Zastrow, who is admittedly a supervi- sor and is Napoleon's immediate superior, told Napoleon that Zastrow was going to win and the Union would lose.2 Just before the election, which was held on 20 June 1984, Zastrow told Napoleon that the Union was "not going to do for [the employees] anything good as the Company." He said that Respondent's insurance "is going to be better than the union insurance." He went on to say that Napoleon was getting overtime, had recently received a 30-percent raise (see infra, part II, D), and had received his review (see infra, part II, D) and what- ever else he wanted: "What do you need the Union for?" The Union won the ensuing election on 20 June 1984 and was certified as the maintenance employees' collec- tive-bargaining representative on 28 June 1984. The Union's observer at that election was maintenance em- ployee John S. Sandberg, who had induced about six of his fellow employees to sign union cards in late April and early May 1984. During Sandberg's wage review in January 1984, Zastrow had told him that Respondent was going to need some more "white helmets" (the hel- i At the instance of Respondent's counsel, the preheanng affidavit of witness Edward Napoleon was received without objection or limitation and to show the truth of the contents 2 My findings about this incident are based on Napoleon's preheanng affidavit (see supra fn 1). Because he was not asked about the incident, I reject Respondent's contention that his failure to testify about it reflects on his credibility. ORVAL KENT FOOD CO. 405 mets worn by supervisors) and to be patient, "take it easy, you will make it." During the election campaign, Zastrow told Sandberg, "If you get a Union, I can't give you your white helmet." About a month after the Union won the election, Zastrow told Sandberg, "I can't give [a white helmet] to you now because you have a Union." On more than one occasion after the Union's June 1984 certification and before 7 March 1985, Zastrow told some of his subordinates, "Well, you guys got a Union now and we have to start writing. I am going to write you up three times and then you will be fired. There is nothing I can do." On an undisclosed date after the elec- tion, when Napoleon was in Zastrow's office discussing overtime, Zastrow said, "You don't want the overtime, you want the Union . . . you [obscene verb] me and are trying to [obscene infinitive] the Company;" to which Napoleon replied that it was "not nice" talking to him like this (see supra fn. 1).3 After the Union's June 1984 certification, the parties engaged in contract negotiations which were still in progress as of the June 1985 hearing. B. The Allegedly Unlawful No-Talking Rule The maintenance department supervised by Zastrow consists of about 13 employees. Zastrow testified that on a particular occasion in 1985, on overhearing employee Napoleon discussing union activities with other employ- ees while he was on the job, Zastrow told' Napoleon "there is no union activity during working hours other than lunch and break time. This is my rules." Zastrow went on to testify that Napoleon replied Zastrow could not stop him, to which Zastrow replied, "Try me." Still according to Zastrow, he told Napoleon that if he con- tinued such union activity during such periods, Zastrow would write him up; to which Napoleon replied that Zastrow could not write him up on something like that. Zastrow went on to testify thereafter he told all 13 of his subordinates, "absolutely no union activity during work- ing hours," other than at lunch or break; whereupon Na- poleon discontinued such activity during such periods. Zastroow further testified that he permits employees to discuss, while actively working and so long as the dis- cussion does not interfere with work, any subject except unions, religion, and politics . He testimonially explained these, exceptions on the ground that if these three sub- jects are discussed, "there is going to be a fight." C. The Alleged Unlawful Threats and Promises In October or November 1984, Napoleon came to Zas- trow's office and asked him for more overtime work. Zastrow told him that overtime was' distributed "as we need." Zastrow further said that he'was waiting for the contract between Respondent and the Union, that with a contract he would be able to write Napoleon up for three reasons, and that then Zastrow would get rid of 3 All the events previously described under this heading either oc- curred more than 6 months before the charge was filed, or were not shown to have occurred at a later date . My findings under this heading about the remarks made by Zastrow are based on Sandberg's testimony, Zastrow's testimony, and Napoleon's testimony and/or his prehearmg af- fidavit (see supra fn. 1). Napoleon. Zastrow said, "if this is the way you want it, the this is the way it will be." Zastrow testified that at no time since his initial August 1982 employment by Re- spondent as the maintenance superintendent had he ever used a system of progressive warnings culminating in "final suspension." Zastrow further testified that when previously working as a supervisor for employers other than Respondent, he had implemented union contracts, including contractual disciplinary clauses, "by the book."4 In February 1985, Napoleon again came to Zastrow's office to ask for more overtime. Zastrow said that man- agement , had told Zastrow to get rid of Napoleon be- cause he had been influencing some other "guys" about the Union. Zastrow said that Napoleon had to keep his mouth shut, and said, "[d]on't talk about the Union." Zastrow said that if he heard again from Napoleon that he was talking about the Union, Zastrow would take him up to Zastrow's office and Napoleon would not have a job any more. Zastrow said, "If you want to keep your job you should keep your mouth shut; don't talk about the Union." After this conversation, Napoleon aban- doned his previous activity of talking to almost all the other employees about "what the Union was going to do for us, the better wages, better conditions and probably the overtime." My findings in the preceding paragraph are based on Napoleon's testimony, corroborated by his prehearing af- fidavit (see fn. 1, supra). Zastrow did not deny telling Napoleon that he would be discharged if he did not keep his mouth shut about the Union. However, Zastrow did deny telling Napoleon that management wanted to fire him. For demeanor reasons, I do not credit Zastrow in this respect. In addition to relying on such discredited testimony by Zastrow, Respondent's counsel contends, somewhat inconsistently, that in testifying that Zastrow told him in February 1985 that top management wanted to get rid of him, Napoleon had in mind an October 1983 incident (unrelated to the Union) involving fellow em- ployee Link.5 Senior Vice President Stanley Winton tes- tified that he suggested that Napoleon be discharged be- cause of that incident; and that owing to Zastrow's op- position to Winton's suggestion, Respondent sent Napo- leon a memorandum imposing, without making a judg- ment about his guilt or innocence, a 3-day suspension be- cause 5 hours of "valuable company time" were wasted in a meeting conducted in consequence of his involve- ment in the incident. However, Respondent relies on evi- dence that Zastrow's October 1983 intercession on Napo- leon's behalf was revealed to Napoleon in April 1985, a month after he executed the prehearing affidavit which 4 My findings about this incident are based on Napoleon 's and Zas- trow's uncontradicted testimony and on uncontradicted portions of Napo- leon's prehearmg affidavit (see supra fn 1) 5 The General Counsel has moved to strike from the record all refer- ence to the Link incident. I do not believe this action is called for by either the 15-month interval between the Link incident and Zastrow's al- legedly unlawful remarks, or the testimony by Zastrow that he never told Napoleon that top management wanted to fire him ., Rather, such considerations go to the weight of the evidence sought to be struck 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described Zastrow's February 1985 remarks about top management's desire to discharge Napoleon.6 About early March 1985, Napoleon went to Zastrow's office to ask for overtime work. Zastrow said that if Na- poleon wanted more money he could wait until 20 June 1985 (1 year after the election won by the Union on 20 June 1984), when there was going to be another election. Zastrow said that when the Union was voted out on 20 June, all the maintenance department employees could go to his office on 21 June and they would get a raise.' On 7 March 1985, while Zastrow and maintenance em- ployee Sandberg were drinking coffee, Zastrow re- marked that he had heard rumors that the mechanics were feeling they were going to be fired after 20 June 1985, which was 1 year after the representation election. Zastrow said that no mechanics would be fired on 21 June, and that everybody would still have a job. Sand- berg said that he did not believe this. Angered by this remark, Zastrow said that the Union was not going to do the employees any good; that if Sandberg thought the Union was going to help the employees, he was wrong; that Zastrow was going to run the maintenance shop the way he wanted to; and that nobody was going to tell him what to do. Zastrow said that no business agent was going to tell him how to run Zastrow's maintenance de- partment; and, in earthy language, said that if Manney Pearl (the Union's business agent) came around, Zastrow would kick him. Sandberg asked Zastrow if he would fire a certain mechanic if he had been ordered to do so "up front." Zastrow said yes. He said that if Sandberg dropped the Union, things would go back the way they were and "we wouldn't have any trouble." Zastrow said that he could not get any ' money until 21 June, but on '21 June he could. My findings in the preceding paragraph are based on Sandberg's testimony. Zastrow testified that Sandberg said he had heard a rumor that Respondent was going to fire everyone who was active in the Union, Zastrow 6 Respondent's evidence consisted of testimony by Personnel Director Florence Demer that about early April 1985 she told Napoleon about Zastrow's intercession in connection with the October 1983 Link inci- dent According to Demer, during this April 1985 conversation she also told Napoleon that Zastrow had'interceded on Napoleon's behalf in con- nection with an alleged incident, about December 1983, in which Napole- on had allegedly burned employee Brown's jacket and neck with a blow torch, the record is otherwise silent about this alleged safety violation For demeanor reasons, I credit Napoleon's testimony, which is corrobo- rated by his prehearing affidavit (supra in 1), about the content and date of his conversation with Demer which, according to him, occurred in February 1985. However, this testimony by Napoleon fails to provide any connection between the 1983 incidents and his February 1985 con- versation with Zastrow. 7 My findings in this paragraph are based on Napoleon's testimony, es- sentially corroborated by his preheanng affidavit (see supra fn. 1). In crediting Napoleon, I have taken into account Napoleon's admission that he believed Zastrow was not fair with him because, in order to receive overtime, he had to ask Zastrow for it while other employees did not, Napoleon's uncontradicted testimony that he told Zastrow he did not want a $1 (actually, 90 cents) May 1984 individual increase which he in fact received, and the statements in his prehearmg affidavit that he had been replaced as a leadman by a new employee who was paid more than he, that he believed Respondent had discriminated against him on unspec- ified dates with respect to, overtime assignments; and that he had been classified at the lowest rate in Respondent's collective-bargaming propos- al. In view of the credible and partly uncontradicted evidence regarding Zastrow's antiunion and/or coercive remarks on other occasions and, for demeanor reasons, I do not credit Zastrow's denial. denied that Respondent had such plans, and Sandberg said he did not believe this and "took off." Zastrow also denied threatening to kick Pearl (whom Zastrow denied having met), and testified to wearing a different size shoe than the one which (according to Sandberg) Zastrow claimed during this conversation. Respondent contends that Sandberg is not worthy of belief because he was ad- mittedly annoyed by Zastrow's action in hiring a new employee as assistant supervisor instead of promoting Sandberg to this position; because Respondent's May 1984 changes deprived him and others of overtime work; and because Sandberg testified that he had never seen Zastrow physically perform mechanics' work and did not know what mechanical knowledge he had "as far as hands on," notwithstanding Zastrow's otherwise uncon- tradicted testimony that on numerous occasions he had worked side by side with Sandberg on mechanical equip- ment. Further, Respondent challenges Sandberg's credi- bility on the ground that he evinced resentment against Respondent by stating, in his prehearing affidavit, that Respondent had proposed to the Union a classification system which put him in the lowest classification and put only nonunion employees above the entry level. In addi- tion, - Respondent contends that Sandberg should not be believed because nothing in Sandberg's testimony reiter- ates the statement in his prehearing affidavit that in as- signing overtime, Respondent discriminated against. union members during periods, some of which may-have fallen within the 10(b) period; Sandberg was not asked about these portions of his-affidavit, which are irrelevant to the complaint allegations. In view of other and partly unden- ied evidence that Zastrow made antiunion and/or coer- cive remarks and, for demeanor reasons, I credit Sand- berg. D. The Alleged Unlawful Conduct Regarding Wage, Reviews and Increases Zastrow became Respondent's maintenance supervisor in August 1982. Between that date .and the June 1985 hearing before me, it was he who, decided, at least initial- ly, when maintenance employees were to receive wage increases and how much they were to receive. Employee Sandberg testified that in July 1983 Zastrow told him that Zastrow wanted to follow the policy of giving each employee a wage review each year on the anniversary date of his hire and, if a mechanic was doing "real good work," giving him a 6-month review. Zas- trow did not deny , making such statements to Sandberg. However, Zastrow testified that he gave an employee a wage increase whenever Zastrow believed the employee was entitled to receive one, and that there was "no policy." He further testified that before the May 084 general wage increase, the only wage increases he had ever given were merit wage increases. The wage history of Sandberg, Fidorf, and Berg, and (at least arguably) Gerleve, Hudgens, Owens, Rami, Weeber, Fuoss, and Hook is consistent with Zastrow's description to Sandberg of Zastrow's wage increase ORVAL KENT FOOD CO. 407 policy8 However, the wage history of the approximately three other employees (Napoleon, Schmidt, and Link), whose 6-month or 12-month anniversary dates fell while Zastrow was maintenance superintendent, does not con- form to Zastrow's preferred policy as described to Sand- berg. On 7 May 1984, 4 days before the Union filed its peti- tion, Respondent gave a 30-percent wage increase to all the maintenance employees. This increase was concomi- tant to and a result of certain scheduling changes which caused a substantial diminution in the number of hours for which employees were paid time and a half or double time.9 Winton testified that when deciding on this May 1984 increase, management planned to review wages a year later-that is, in May 1985-and to give wage in- creases. He testified that Zastrow participated in the foregoing decisions, including the decision to make 9 May 1985 "a new basis of anniversary date reviews." Re- spondent's counsel averred in his opening statement that in May 1984 "the prior practice of irregular and, in some cases, regular date of hire annual increases but not for all, was discontinued in favor of an overall once yearly review and/or increase for all the bargaining [unit] em- ployees as [has] been done in other operational units of the Company." No maintenance employees received any wage in- creases between 7 May 1984 and the first day of the hearing before me on 10 June 1985. Zastrow testified that the only reason for Respondent's failure to give wage increases or merit wage increases during this 13- month interval was the fact that Respondent was having negotiations with the Union. Zastrow further testified that if the Union had not come into the shop at all, he would have 'given his crew or some of them merit in- creases between June 1984 and the June 1985 hearing; and that all Zastrow's subordinates were doing better work and working much harder than in May 1984. Respondent's representatives during collective-bargain- ing negotiations included Winton but not Zastrow. During a collective-bargaining, session with the Union on 8 May 1985, Respondent told the Union that because it had been a year since the last general review and pay in- crease to the maintenance department, Respondent felt it was appropriate to make another general review of that department. Respondent offered an immediate 2-percent general wage increase conditional on the waiver of Re- spondent's sick pay offer on the table, i ° plus an addition- al immediate 5-percent general wage increase. Respond- ent stated that this offer would not be prejudicial to any further negotiation on the subject, and that this was not a S The April 1984 increases to Hudgens and Owens were aspects of the May 1984 general increase (see infra). Fuoss and Hook received no in- crease at any relevant time. 9 Even with the 30-percent wage increase , these scheduling changes adversely affected the employees' take-home pay. The employees had been regularly working a 5-day week of 50 hours, for which they had received the equivalent of 55 hours' straight-time pay; and could also work Saturdays at time and a half and Sundays at double time The changes initially. reduced the regular workweek of every employee to 40 hours These changes were made more than 6 months before the instant charge was filed, and are not attacked in the complaint 10 The record suggests that this offer was an offer to continue sick pay benefits the employees were at that time receiving concluding base, but was a base from which the parties would still continue bargaining. The Union rejected this proposal and told Respondent not to put it into effect. Respondent did not do so. As of that date, Respondent also had on the table a proposal, to which the Union had not yet made a firm response, regarding Respondent's right to grant merit increases. E. Analysis and Conclusions 1. The discriminatory no-talking rule An employer may, of course, lawfully forbid employ- ees to talk about a union during periods when the em- ployees are supposed to be actively working, if that pro- hibition also extends to all other subjects not associated or connected with their work tasks. However, an em- ployer violates Section 8(a)(1) when, as here, employees are forbidden to discuss unionization but are free to dis- cuss other subjects unrelated to work, particularly when (as here) the prohibition was announced in specific re- sponse to the employees' activities in regard to the union organizational campaign. Olympic Medical Corp., 236 NLRB 1117, 1122 (1978), enfd. 608 F.2d 762 (9th Cir. 1979); Larid Printing, 264 NLRB 369, 374, 376 (1982). Accordingly, Respondent violated Section 8(a)(1) of the Act by reason of Supervisor Zastrow's admitted action in promulgating, maintaining, and enforcing a rule forbidding employees to discuss unionization when they were expected to be actively working but such discus- sion would not have interfered with work, while permit- ting employees to discuss most other subjects during such periods. Zastrow's testimony that he forbade discus- sions about unions (and also religion and politics) be- cause he believed that such discussions would lead to "a fight," does not constitute a defense to the ban on union discussions; for Respondent failed to offer any evidence whatever that such union discussions threatened "a fight." See NLRB v. Varo, 425 F.2d 293, 297 (5th Cir. 1970); NLRB v. Honeywell, Inc., 722 F.2d 405, 406-407 (8th Cir. 1983); NLRB v. Plant City Steel Corp., 331 F.2d 511, 514 (5th Cir. 1964). 2. The threats and promises In addition, I find that Respondent violated Section 8(a)(1) of the Act when Zastrow told employee Napole- on in October or November 1984 that with a union con- tract Zastrow would be able to write him up for three reasons and that Zastrow would then fire him, "if this is the way you want it, then this is the way it will be"; when Zastrow told Napoleon in February 1985 that he would lose his job if he continued to talk about the Union; when Zastrow told Napoleon about March 1985 that when the Union was voted out on 20 June 1985 (1 year after the election in which a majority of the em- ployees had voted for the Union), all the maintenance department employees could get a raise on 21 June; when Zastrow told employee Sandberg on 7 March 1985 that if he dropped the Union, things would go back the way they were and "we wouldn't have any trouble"; and when, during that same conversation, Zastrow said that 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could not get any money until 21 June, but on 21 June he could. 3. The allegedly unlawful discontinuance of wage reviews and increase Respondent's business records and credible parts of Zastrow's testimony show that before 7 May 1984 Re- spondent followed a practice of giving maintenance em- ployees reviews and merit increases at irregular or (in some cases) regular intervals. As of that date, Respond- ent gave all the maintenance employees a 30-percent wage increase in connection with a change in work schedules which substantially diminished employees' op- portunity to receive overtime pay. Senior Vice President Winton testified that , at the same time Respondent decid- ed to make these adjustments in wages and hours, Re- spondent decided to make the 7 May 1984 date "the last review date [of all the maintenance employees] for pur- poses of future reviews," and to give wage increases on 7 May 1985. At the outset of the hearing, Respondent's counsel stated that the policy thus described by Winton which, according to Respondent, was decided on or before Re- spondent found out about the union movement , was re- garded by management as a substitute for the previous practice, which (Zastrow testified) had led to merit in- creases only. However, Winton did not testify that such displacement was intended ; indeed, he testified that at the time he proposed a general wage increase to the Union, on the ground that it had been a year since that last general wage increase, Respondent also had on the table a proposal regarding management 's right to grant merit increases. Moreover, the testimony of Zastrow (who participated in the decision to effect the May 1984 general wage increase and to make 9 May 1985 a new basis of anniversary reviews) is inconsistent with any belief by him that these decisions precluded merit wage increases until May 1985 . Rather, he testified that the only reason for his failure to give merit increases after the Union's June 1984 certification was the fact that Re- spondent 'was having negotiations with the Union, and that if the Union had not come into the shop at all, he would have given his crew or some of them merit in- creases between June 1984 and the June 1985 hearing. Moreover, in March 1985, Zastrow told employees that they could get a raise on (but not before) 21 June 1985 (1 year after the Union's election victory) when the Union was voted out. Furthermore, Zastrow's conduct and statements prior to March 1985 and beginning before the June 1984 election show that he strongly opposed the Union and was trying to lead employees to believe that they would be better off without it. In view of the fore- going evidence about Respondent's antiunion purpose in failing to consider any employees for merit wage in- creases, particularly Zastrow's admission that he would have given such increases if the Union had not come into the shop, I find that Respondent violated Section 8(a)(1) and (3) of the Act by failing to consider employees for and to give such increases on and after 15 September 1984, 6 months before the filing of the charge. Manage- ment Training Corp., 261 NLRB 131 (1982); Grant 's Home Furnishings, 218 NLRB 757, 767-768 (1975). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8 (a)(1) of the Act by promulgating, maintaining, and enforcing a rule which forbids employees to discuss unions during peri- ods when they are expected to be actively working and when such discussion does not interfere with work, but which permits employees during such periods to discuss other subjects not associated or connected with their work tasks. 4. Respondent has violated Section 8 (a)(1) of the Act by threatening to discharge or inflict other, unspecified reprisals on employees for union activity, and by promis- ing employees that they would or could obtain wage in- creases once they were no longer represented by the Union. 5. Respondent has violated Section 8(a)(1) and (3) of the Act on and after 15 September 1984 by failing to consider employees for and to give them merit increases because such employees were represented by the Union. 6. The unfair labor practices set forth in Conclusions of Law 3 through 5 affect commerce within the meaning of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent be required to cease and desist from any like or relat- ed conduct. Affirmatively, Respondent will be required to rescind its unlawful rule regarding discussions about unions. Also, Respondent will be required to put into effect for its maintenance employees such merit increases as they would have been given from 15 September 1984, absent discrimination, and to make them whole for any loss of pay they might have suffered by reason of the discrimination against them . Management Training, supra, 261 NLRB at 136; Grant's Home Furnishings, supra, 218 NLRB at 768-769. Backpay shall include interest as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977).11 In addition, Respondent will be required to post appro- priate notices. [Recommended Order omitted from publication.] 11 See generally Isis Plumbing , 138 NLRB 716 (1962)