The Gerkin Co.

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Gerkin Co. and District Lodge 162, Internation- al Association of Machinists and Aerospace Workers, AFL-CIO. Cases 18-CA-7205 and 18-RC-12930 20 May 1986 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 25 June 1982 Administrative Law Judge Leonard M. Wagman issued the attached decision. The Respondent filed exceptions and a supporting brief,' the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering 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 briefs and has decided to affirm the judge' s rulings, findings,2 and conclusions3 only to the extent consistent with this Decision, Order, and Direction of Second Elec- tion.4 We agree with the judge that the Respondent violated Section 8(a)(1) when it informed employ- ees during the Union's organizing campaign that benefits could not change, that the traditional May merit wage increase was being "frozen," and that the Respondent could not carry out its intent to improve their health insurance coverage until after i The Respondent has requested oral argument As the record in this case including the exceptions and briefs adequately presents the issues, the request for oral argument is denied 2 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 0 In adopting the judge's conclusion that the Respondent's president unlawfully interrogated employee Hansen, we rely on several factors which established its coercive effect The Respondent's highest officer, President James Gerkin, interrogated Hansen during a group meeting with employees where the primary purpose was to conduct a presenta- tion against the employees selecting the Union as their bargaining repre- sentative Gerkin specifically asked Hansen what was stated at a union meeting and whether Hansen was present , and repeated his inquiry de- spite the latter's obvious reluctance to provide the information requested. The phrasing of the inquiry whether Hansen was present at the union meeting (with Gerkin stating, "You were there weren't you?") provides an additional coercive overtone that Hansen's activities were under sur- veillance, notwithstanding this not having been separately alleged The totality of the circumstances dictates a finding that the questioning was coercive See Rossmore House, 269 NLRB 1176 (1984) 4 The General Counsel excepts to the judge 's failure to include lan- guage in his recommended Order and notice that the Respondent will re- scind its unlawful no-solicitation , no-distribution rule We find merit in the General Counsel's exceptions and modify the Order to include such language See Transcon Lines, 235 NLRB 1163 (1978) the election. In agreeing with the judge that these warnings of reprisals violated Section 8(a)(1), we find that the above statement referring to the with- holding prior to the election of traditional or previ- ously planned benefits is contrary to the Board's well-established rule that during the preelection period an employer must grant or withhold benefits "as he would if a union were not in the picture." Great Atlantic & Pacific Tea Co., 166 NLRB 27, 29 (1967).5 However, we find that the Respondent's state- ment that anyone who thought that the Respond- ent would grant a wage increase to employees while contract negotiations were pending was "crazy" is not unlawful. To the extent this may have referred to the Respondent's merit wage in- crease program, there is no indication that the size of such wage increases was predetermined. In view of this degree of discretion, the Respondent was obligated to negotiate with the Union regarding any implementation of such wage increases.6 During negotiations, and absent any agreement be- tween the parties, there would be no basis on which to implement any increases. On the other hand, even if a wage increase were mutually agreed upon by the parties during negotiations, it would not be unlawful for an employer to refuse to implement the increase pending resolution of all bargaining issues and the execution of the complete agreement. In view of our adoption of the judge's finding that the Respondent unlawfully threatened to with- hold wage and benefit increases, interrogated an employee, maintained an overly broad no-solicita- tion, no-distribution rule, and that these violations occurred during the critical preelection period, we adopt the judge's recommendation that the election held in Case 18-RC-12930 be set aside and that a new election be conducted. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, The Gerkin Co., Sioux City, Iowa, its of- 5 We find distinguishable Medical Center at Bowling Green, 268 NLRB 985 (1984), enf denied 756 F 2d 41 (6th Cir 1985), on which our dissent- ing colleague relies, because that case permits the withholding of certain benefits only where the expressed intent of the employer is to avoid the appearance that it sought to interfere with employee free choice Accord Village Thrift Store, 272 NLRB 572 (1983) Here, the Respondent used the withholding announcement as a campaign tactic and sought to place the onus on the Union for the withholding of the benefits, a classic viola- tion of the rule requiring the employer to proceed as if the union were not in the picture 6 See Onetta Knitting Mills, 205 NLRB 500 In 1 (1973) 279 NLRB No. 136 GERKIN CO ficers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 2(a) and re- letter the subsequent paragraphs. "(a) Rescind and vacate its plant no-solicitation and no-distribution rule, as it appears in its employ- ee handbook to the extent that it prohibits employ- ees from engaging in union solicitation during non- working time or from distributing union literature in nonwork areas during nonworking time." 2. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that the election is set aside and a second election be conducted. [Direction of Second Election omitted from pub- lication.] CHAIRMAN DOTSON, concurring in part and dis- senting in part. I agree with my colleagues' finding that the Re- spondent's maintenance of an overly broad no-so- licitation, no-distribution rule violated Section 8(a)(l). However, as explained below, I disagree with their further finding that the Respondent un- lawfully interrogated an employee or that it unlaw- fully threatened to withhold a scheduled wage in- crease and improvements in insurance benefits. As a consequence, I additionally find that the single 8(a)(1) violation, as the sole evidence of preelection objectionable conduct by the Respondent, is insuffi- cient to warrant setting aside the election. The alleged interrogation of employee Hansen occurred during a meeting between the Respond- ent's president and a group of employees . In speak- ing to these employees, President James Gerkin re- stated a promise allegedly made by the union busi- ness agent to employees at a recent union meeting. Gerkin asked Hansen if the restatement of the promise had been correct and when Hansen re- plied, "If you say so," Gerkin rejoined, "No, not if I say so, what did he say? You were there, weren't you?" Hansen then replied in the affirmative. As recently stated in Rossmore House, 269 NLRB 1176 (1984), the test for evaluating whether an in- terrogation violates the Act requires us to consider whether under all the circumstances the interroga- tion reasonably tends to restrain, coerce, or inter- fere with rights guaranteed by the Act. My col- leagues, ostensibly attempting to apply Rossmore, completely misapprehend and misinterpret the evi- dence concerning this incident. The above ques- tions posed to Hansen indicate that Gerkin was seeking to obtain corroboration that what Gerkin was restating to employees was accurate. The phrasings of the questions to Hansen clearly indi- cate that Gerkin already knew the answer to his 1013 own questions.' Accordingly, it is manifest that Gerkin was not attempting to gain information on Hansen's union activities or attitudes or of union activities in general . The limited nature of the ques- tions indicate that they had no tendency to impede rights guaranteed by the Act, but that they were an attempt to assure the employees that the Respond- ent's campaign statements were based on fact, not misrepresentation. Rhetorical questions are an old persuasive device. Their use in 'this context to per- suade employees of the truth of Respondent's asser- tions was not unlawful. My colleagues find that the Respondent threat- ened to withhold a scheduled wage increase and improvements in insurance benefits in violation of Section 8(a)(1) because the Respondent was in, sub- stance, warning employees of reprisals because of the Union's presence. I do not agree. The state- ment that wage rates and benefits could not be changed during the organizing campaign is clearly on its face an indication the Respondent would maintain the status quo during this period. The statement to an employee, on his inquiry that the "May raise" was "frozen," is not unlawful. Al- though the record indicates that for the past sever- al years the Respondent had given wage raises in May of each year, 2 there is no indication of the amounts of these raises or on what basis, if any, they were calculated. Accordingly, I find fully ap- plicable here the recent statement of the law in Medical Center at Bowling Green,3 that when prior to an organizing campaign an employer has an- nouced its intention to grant a benefit in the future, it is an adequate basis for withholding that benefit pending the outcome of the campaign or election if the amount of the benefit has not yet been resolved by the outset of the campaign and remains within the employer's direction. In such a setting, the Board in the above-cited case stated that: . . . the employer does not violate the Act or commit objectionable conduct if it then tells the employees that it cannot exercise its discre- tion to determine the amount and time of a wage increase pending the outcome of the union activities or election. [Id. at 985.] Although the time of the "May increase" was set, there is no showing that at the time of these pree- I There is no allegation or evidence to support that the Respondent had engaged in unlawful surveillance nor any allegation that by the above comments the Respondent created the impression of such surveil- lance 2 The record contains less than precise indication that all employees received May increases or that they all received the same amount of an increase 3 268 NLRB 985 (1984) 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lection statements in March4 the amount of these raises had been determined or the Respondent's dis- cretion to determine the amount of the increase, if any, had been restricted in any manner. The final statement made by the Respondent which the judge found was an unlawful threat was the remark by President Gerkin that the Respond- ent was in the process of getting new health insur- ance coverage but that there would be no change until after the election. As found by the judge, Gerkin's statement indicated only that the change in health insurance coverage would be held off until after the election. There is no indication in the record that the Respondent had decided on which insurance plan it would select or even the coverage it was seeking to obtain. The Respondent also had no date scheduled for changing its cover- age. When the Respondent's intention to change health insurance coverage was in the preliminary stage, and when the Respondent had not limited its discretion to determine the amount of the benefit change, I conclude that the principle, set forth above, from Medical Center at Bowling Green, supra, is fully applicable. Accordingly, in view of the unresolved details of the change in insurance coverage, the Respondent did not unlawfully state it was deferring a decision on this change in insur- ance coverage until after the representation elec- tion. As stated above, the only instance of misconduct during the preelection period was the Respondent's maintenance of an overly broad no-solicitation, no- distribution rule. The rule in question 5 had been maintained in the Respondent's employee hand- book since at least 1977,8 and the record shows that, in the absence of any effort to limit the breadth of the rule, it was maintained in effect at all material times. However, the record does not indicate that the rule was enforced or that its exist- ence in the 20-plus-page booklet otherwise was brought to the employees' attention during the preelection period. The record further fails to indi- cate generally the manner of distribution of the booklet7 or particularly that new or current em- ployees had received copies of the booklet during, or near in time to, the critical preelection period. The above facts provide an insufficient basis for setting aside the election and directing a new elec- 4 At the time the Respondent stated in March that the "May increase" was frozen, the date of the election had not yet been determined Ac- cordingly this statement was not directed at postelection events 6 The rule stated that solicitation and distribution on company proper- ty are "areas of behavior ," cited with other examples such as absentee- ism, weapons, alcohol, and fighting which require "special attention." There is indication in the booklet that this rule first appeared in 1971 The General Counsel presented two witnesses who indicated they re- ceived the book in early 1979 and mid -1977, shortly after each began to work for the Respondent tion. As stated in Enola Super Thrift,8 an election will not be set aside . . . where the violations are such that it is virtually impossible to conclude that they could have affected the results of the election. This determination is based , inter alia, on the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors. Under this standard I find that the unlawful rule, although serious enough to require remedial action because it was never rescinded or modified, has not been shown to have had significant effect on the employees during the preelection period. Although employee disregard of the rule (which occurred here) does not itself render the rule lawful, it pro- vides evidence that the unlawful effect of the rule was limited. Further, in the absence of evidence that any employee specifically remembered or reread the rule during the preelection period, there is no basis for concluding that the rule was dissemi- nated in any significant manner. Under these facts, this sole instance or preelection misconduct, which involved no affirmative act other than the mainte- nance of a preexisting rule, does not provide an adequate ground to set aside the election. 6 Enola Super Thnjt, 233 NLRB 409 (1977) 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 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 any rules which expressly or impliedly prohibit you from union solicitation in the plant during non- working time or which prohibits you from distrib- GERKIN CO uting union literature in nonworking areas during nonworking time. WE WILL NOT coercively interrogate you regard- ing your union membership, activities, or sympa- thies. WE WILL NOT threaten to withhold scheduled wage increases or improvements in other employee benefits because of the pendency of a Board-con- ducted representation election or negotiations with District Lodge 162, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, which you have des- ignated as your collective-bargaining representa- tive. WE WILL rescind our rule prohibiting employees from soliciting or distributing literature relating to the exercise of their rights protected by the Act. 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. THE GERKIN CO. Barbara S. Isaacman, Esq., and Robert V. Johnson, Esq., for the General Counsel. Steven A. Carter, Esq., and William L. Edmonds, Esq. (Carter, Sar & Edmonds), of Sioux City, Iowa, for the Respondent Richard D. Sturgeon, of Sioux City, Iowa, and Harold P. Lorenz, of Bridgeton, Missouri, for the Charging Party DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge. On a charge filed by District Lodge 162, International Association of Machinists and Aerospace Workers, AFL-CIO (Union), on April 24, 1981,1 in Case 18-CA- 7205, the General Counsel of the National Labor Rela- tions Board, by the Acting Regional Director for Region 18, issued a complaint against The Gerkin Co. (Respond- ent), on May 26. The complaint alleged that Respondent engaged in unfair labor practices violative of Section 8(a)(1) of the National Labor Relations Act. Respondent, by its answer to the complaint, denied commission of any of the alleged unfair labor practices. The petition for certification in Case 18-RC-12930 was filed by the Union on February 19. Thereafter, pur- suant to a decision and direction of election issued by the Regional Director on March 23, an election was con- ducted in a unite of Respondent's employees on April 17 1 Unless otherwise stated, all dates occurred in 1981 2 The unit found appropriate by the Regional Director consisted of All full-time and regular part-time production and maintenance em- ployees employed by the Employer at its Sioux City, Iowa facility, including assembly, custodial, insulation, service, service technician and warehouse employees and truck drivers, excluding office clerical 1015 The tally of ballots showed that out of 37 eligible voters, 14 voted for the Union, 17 voted against the Union, and 4 ballots were challenged. On June 3 the Regional Director determined that a hearing on the Union's timely objections was necessary and ordered that the Union's Objections 1 and 6,3 and other "objections which were not specifically alleged," be consolidated with Case 18-CA-7205. The hearing in this consolidated case was held before me in Sioux City, Iowa, on February 9, 1982. On the entire record in the cases, and from my obser- vation of the demeanor of the witnesses, and after having considered the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I THE RESPONDENT'S BUSINESS Respondent, an Iowa corporation, with an office and place of business at Sioux City, Iowa, is engaged in the manufacture, nonretail sale, and distribution of storm windows and patio doors and related products. During the course and conduct of its operations, Respondent during the 12-month period ending December 31, 1980, sold and shipped products and materials, valued in excess of $50,000 directly to points outside the State of Iowa, and also received at its Sioux City, Iowa facility, prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from points outside the State of Iowa. From these admitted facts, I find that Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent in its answer denied that the Union was a labor organization within the meaning of Section 2(5) of the Act.4 I find from the uncontradicted testimony of Business Representative Richard D. Sturgeon that the Union is an organization in which employees participate, that it exists for the purpose of bargaining for employees regarding wages, hours, and conditions of employment, including the resolution of employee grievances , and that the Union has collective-bargaining agreements with em- ployers in the Sioux City, Iowa area. I find therefore that the Union is a labor organization within the meaning of Section 2(5) of the Act. employees, sales and marketing employees, professional employees, guards and supervisors as defined in the Act s The Union's Objections 1 and 6 are as follows 1 The Employer threatened to withhold a scheduled wage in- crease if the Union won the election 6 The Employer, by the above and other acts interferred [sic] with the conduct of a free and fair election which warrants setting aside the election of April 17 Sec 2(5) of the Act provides The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employees concerning grievances, labor disputes, wages, rate of pay, hours of employment, or condi- tions of work 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES IN CASE 18-CA-7205 A. Background and Issues The Union began its organizing campaign among Re- spondent's production and maintenance employees on February 11. Eight days later, the Union filed its petition for an election in Case 18-RC-12930 among those same employees. The General Counsel contends that Respondent inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed under Section 7 of the Acts to choose a labor organization as their exclusive collective-bargaining representative, and thereby violated Section 8(a)(1) of the Act.6 Specifically, the General Counsel contends that Respondent violated Section 8(a)(l) of the Act by: (1) maintaining an overly broad no-solicitation/no-distribution rule; (2) threatening to withhold a scheduled wage increase and other employee benefits; (3) interrogating an employee; and (4) circulat- ing antiunion propaganda at its facility during working time and in work areas. Respondent disputes these allegations. For the reasons given below, I agree with the General Counsel's conten- tion except with respect to the circulation of antiunion material during working time and in work areas. B. Alleged Interference, Restraint, and Coercion 1. Respondent's rule regarding solicitation and distribution Since at least 1977, Respondent has maintained the fol- lowing language in a handbook which it has distributed to employees, and which is entitled "About Your Compa- ny„ It is not necessary to establish harsh restrictive guidelines for behavior if each of us uses good judgement and discretion in our dealings with each other and with the Company. The "rule of reason" can be applied to any situation. If we consider the affect of our behavior on other employees or Gerkin Aluminum efficiency, and ask, what's fair?, a reasonable logical standard of behavior becomes obvious. It is true that some areas of behavior are poten- tial trouble spots. Some of these are spelled out as follows so that we may realize that they require special attention. Absenteeism-Tardiness-Improper Ringing of Clock Cards-Weapons-Profane or Abusive Lan- guage-Threatening-Fighting-Not Following In- structive-Careless Workmanship-Misuse or Saba- Sec 7 of the Act provides, in pertinent part Employees shall have the right to self-organization , to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection ° Sec 8(ax1) of the Act provides It shall be an unfair labor practice for an employer-(1) to interfere with, restrain, or coerce its employees in the exercise of their rights guaranteed in section 7 toge [sic]-Soliciting-Distributing Literature or Posting of Notices on Company Property-Gam- bling-Falsification of Records-Removing or Re- vealing Confidential Information-Alcohol or Drugs-Smoking-Financial or Personal Prob- lems-Restricting Output-Working Unsafely- Horseplay-Poor Housekeeping-Loafing-Theft. (Emphasis added.) There was no showing that any employee suffered dis- charge or other disciplinary action for engaging in solici- tation or distribution on Respondent's premises. On the contrary, credited testimony shows that employees had engaged in such activity on the Respondent's premises, during worktime without suffering any discipline at Re- spondent's hands. However, there was no showing that employees engaged in solicitation on behalf of a union on Respondent's premises with Respondent's knowledge or acquiescence. Turning to applicable Board doctrine, I find that in the absence of unusual circumstances, an employer violates Section 8(a)(1) of the Act by prohibiting solicitation by its employees during nonworktime or by forbidding the distribution of literature in nonworking areas during its employees' nonwork time. General Dynamics, 253 NLRB 180 (1980). It is also well-settled that the posting by an employer of overly broad no-solicitation or no-distribu- tion rules is in itself "sufficient promulgation to consti- tute a violation." General Dynamics, above. It follows that it is unnecessary to show that an employer enforced the offending rules or that employees were actually in- timidated by the rules. The pertinent issue is whether the Respondent's no-solicitation and no-distribution rules tended to restrain employees from the free exercise of their rights under the Act. Jas. H. Matthews v. NLRB, 354 F.2d 432, 441 (8th Cir. 1965), cert. denied 384 U.S. 1002 (1966); Utrad Corp. v. NLRB, 454 F.2d 520, 523 (7th Cir. 1971). I find that by describing the soliciting and distributing of literature as "areas of behavior" which "requires spe- cial attention," Respondent indicated that it considered any distribution and any solicitation by its employees anywhere on its premises to be misconduct. Although no penalties for such misconduct was spelled out in the handbook, employees might well conclude from its lan- guage that Respondent was likely to reprimand or other- wise discipline those who engaged in any of the de- scribed conduct. However, even if the quoted prohibition be deemed ambiguous, "the risk of ambiguity must be held against the promulgator of the rule rather than against the em- ployees who are supposed to abide by it." NLRB v. Miller, 341 F.2d 870, 874 (2d Cir. 1965). Accord: Gould, Inc., 260 NLRB 54 (1982). I find therefore, under the principles set forth above, that by maintaining rules which strongly suggested that any solicitation or distri- bution anywhere on its premises was prohibited, Re- spondent restrained, coerced, and interfered with its em- ployees' right to engage in union activity protected by Section 7 of the Act. As no special reason was shown for maintaining these rules, I find that by maintaining them, Respondent violated Section 8(a)(1) of the Act. GERKIN CO Republic Aviation Co. v. NLRB, 324 U.S. 793, 803-804 (1945). B Interrogation of Employee Lee Hansen? During the preelection period, the Respondent's presi- dent, James Gerkin, held meetings with employees at the Respondent's plant. At one of these meetings, President Gerkin told a group that he had heard that the union business representative, Richard Sturgeon, had promised the employees "$7 an hour and $200 a week incentive." At this point, President Gerkin turned his attention to employee Lee Hansen saying, "Is that right Lee?" Hansen replied, "If you say so." Not satisfied with Han- sen's response, Gerkin came back with, "No, not if I say so, what did he say?" Gerkin added, "You were there, weren't you?" Hansen said , "Yes." Gerkin replied, "Well, your memory is even shorter than I thought." I find that President Gerkin's remarks to Hansen amounted to interrogation regarding the latter's union activity. In light of Respondent's manifestations of union animus, as found elsewhere in this decision, this interro- gation by its president was likely to restrain Hansen and other employees from attending union meetings or en- gaging in other union activities. Accordingly, I find that by President Gerkin's interrogation of Lee Hansen, Re- spondent violated Section 8(a)(1) of the Act. G. C. Murphy Co., 223 NLRB 604, 609 (1976), enfd. 550 F.2d 1004 (4th Cir. 1977); C & E Stores, 221 NLRB 1321 (1976). C. Threats to Delay and Withhold a Scheduled Wage Increase and Improvements and Benefits8 In 1979 and the preceding years, Respondent estab- lished a pattern of granting its employees two annual wage increases, one in May and the second in October or November. In 1980 Respondent changed its policy to one wage increase in May. About March 12, at one of Respondent's meetings with employees, President James Gerkin announced that "during the organizing campaign wages and benefits couldn't change."9 After the meeting had ended, Lee Hansen asked Vice President Thomas Gerkin if President Gerkin's remark meant that the employees' "May raise was frozen too." Vice President Thomas Gerkin said, "Yes," as far as he knew. At a similar meeting during the next week, the subject of the pay increase rose once again. Gerkin advised the employees that if they believed that Respondent would grant a wage increase to them while contract negotia- tions were in progress, they were "crazy." Prior to the Union's organizing campaign, Respondent had intended to improve its employees' health insurance benefits. However, during the Union's organizing cam- paign, President James Gerkin told a meeting of its em- ployees that Respondent could not carry out its intent to I based my findings regarding this incident on Lee Hansen 's testimo- ny 8 1 based my findings regarding this allegation on the testimony of em- ployees Tanna Theeler, Lee Hansen, and Judith Button 9 The representation election in Case 18-RC-12930 took place on April 17 1017 improve their insurance until after the representation election. The Board has held that "an employer confronted with a union organizing campaign should decide the question of granting or withholding benefits as he would if a union were not in the picture; if his course of action in granting or withholding benefits is prompted by the Union's presence, he violates the Act." Famous-Barr Co., 174 NLRB 770 (1969). I find from the remarks of Re- spondent's president and vice president that Respondent was, in substance, warning its employees of reprisals be- cause of the Union's presence, and thereby violated Sec- tion 8(a)(1) of the Act. A letter from the Union dated February 12, in which it "requestd that all matter remain unchanged unless a mutual understanding had been reached with the Union" did not permit Respondent to threaten to withhold the scheduled wage increase or the announced improvement in insurance benefits. For I find that by announcing its intention to withhold a wage increase and improvements in insurance benefits, Respondent was in fact threatening to change policies which it had put in place prior to the election campaign. Contrary to Respondent's further contention, the con- ferral of the scheduled wage increase and planned im- provements in insurance benefits would not have been violative of Section 8(aXl) of the Act under the doctrine set forth in NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). In that decision, the Supreme Court provided the following guidance: We have no doubt that [Section 8(a)(1) of the Act] prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the expressed purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that affect. [NLRB v. Exchange Parts Co., 375 U.S. at 409.] In the instant case, Respondent had established its policy of giving its employees an annual wage increase in May and had arrived at a decision to improve the em- ployees' insurance benefits before the inception of the Union's organizing campaign. Clearly, Respondent did not decide on either of these improvements "with the ex- pressed purpose of impinging upon [its employees'] free- dom of choice for or against unionization." (Id.) It fol- lows, therefore, that the actual conferral of the two ben- efits would not have run afoul of the Act. Mark I Tune- Up Centers, 256 NLRB 1036 (1981).10 10 Respondent's reliance on NLRB v. Dorns Transportation Co, 405 F 2d 706 (2d Car 1969), to support its contention is misplaced The fol- lowing language extracted from the Second Circuit's opinion shows that its holding has no application in the case before me This is not a situation where the employer has by public announce- ment specifically advised the employees that the union is causing them to lose a wage increase they would otherwise have re- ceived nor did the Company fail to give a pay raise which it had previously announced would be effective on a specific date. [405 F2dat715] 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Permitting the Circulation of Antiunion Material During March 1981, employees Larry Carda and Bar- bara Skidmore circulated a letter in which the signatory employees sought the return of their union authorization cards from the Board. Barbara Skidmore solicited the signatures of two employees and then passed the letter to Larry Carda. Carda fastened the letter on a clipboard and circulated it about the plant during working hours. There is no showing that Barbara Skidmore's supervisor, Donna Turner, or any other member of management saw Skidmore soliciting signatures or witness subsequent cir- culation of the letter around the plant. The complaint alleged that Respondent violated Sec- tion 8(a)(1) of the Act by permitting the circulation of antiunion material about the plant, contrary to its own no-solicitation/no-distribution rule. However, I find no evidence that Respondent was aware of the antiunion letter, as employees Skidmore and Carda circulated it about the plant. I therefore find no evidence to support the assertion that Respondent permitted the circulation of antiunion material during worktime and in work areas. Accordingly, I shall recommend dismissal of this allega- tion.111 CONCLUSIONS OF LAW 1. By unlawfully interfering with , restraining, and co- ercing the employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not violated Section 8(a)(1) of the Act by permitting the circulation of antiunion material during worktime and in work areas, contrary to its rule prohibiting such circulation. Report on Objections Affecting the Results of the Election in Case 18-RC-12930 Having found that during the critical period between the filing of the representation petition on February 19, 1981, and the date of the election on April 17, 1981 (Ideal Electric Co., 134 NLRB 1275, 1278 (1961)), Re- spondent violated Section 8(a)(1) of the Act as set forth in section III of this decision, it follows that the election must be set aside and I so recommend. Phillips Industrial Components, 216 NLRB 885, 886 (1975); Leas & McVitty, Inc., 165 NLRB 389, 390-391 (1965). Accordingly, I shall recommend that the election held on April 17, 1981, in Case 18-RC-12930, be set aside, and that the case be remanded to the Regional Director for Region 18, with direction to conduct a new election at an appro- priate time. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 ORDER The Respondent, the Gerkin Co., Sioux City, Iowa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating, maintaining, or enforcing any rules which prohibit employees from engaging in union solici- tation dunng nonworking time or from distributing union literature in nonwork areas during nonworking time. (b) Coercively interrogating employees regarding their union membership, activities, or sympathies. (c) Threatening to withhold scheduled wage increases and improvements in insurance benefits which would otherwise be granted to its employees because of the pendency of a Board-conducted election or because of pending collective-bargaining negotiations with District Lodge 162, International Association of Machinists and Aerospace Workers, AFL-CIO (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing , or to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Post at its plant at Sioux City, Iowa, copies of the attached notice marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's au- thorized representative , shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced , or covered by any other material. 11 My findings of fact regarding the circulation of the antiunwn mate- rial by Skidmore and Cards are based on the credited testimony of Su- pervisor Donna Turner and employees Skidmore and Carda. Hansen mo- tially testified in substance that he first saw Larry Carda and the clip- board at Donna Turner's table Later, Hansen seemed to change his testi- mony to show that he first saw Cards and the clipboard at an employee's work station In any event, I found the three credited witnesses to be more convincing, as they appeared more positive of their testimony re- garding this matter 22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 13 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 " GERKIN CO 1019 (b) Notify the Regional Director in writing within 20 Region 18 to conduct a new election at such time as he days from the date of this Order what steps the Re- deems that the circumstances permit the employees to spondent has taken to comply. express their free choice regarding the selection of a col- IT IS FURTHER RECOMMENDED that the complaint be lective-bargaining representative.14 dismissed insofar as it alleges unfair labor practices not specifically found herein. IT IS FURTHER RECOMMENDED that the election held 14 In the event Respondent fails or refuses to comply with the terms of the Order in Case I8-CA-7205, the Regional Director is authorized to on April 17, 1981, in Case 18-RC-12930 be set aside , and conduct the new election on written request of the Union Ideal Baking the case be remanded to the Regional Director for Co, 143 NLRB 546, 554 fn 9 (1963).