R. Dakin & Co.

98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD R. Dakin & Company and Teamsters Local Union 78 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 20-CA-19962 and 20-RC-15934 4 June 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 4 August 1986 Administrative Law Judge Roger B. Holmes issued the attached decision. The Respondent filed exceptions and a brief. The Gen- eral Counsel and the Charging Party filed answer- ing briefs. 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, and conclusions and to adopt the recommended Order. It is uncontroverted that during the critical period of this representation election the Respond- ent announced a change from a biweekly to a weekly payroll, a benefit the employees had re- quested but had not received months before the or- ganizing campaign began. The Respondent excepts to the judge's finding of an 8(a)(1) violation in this action and setting aside the election, contending that the change to a weekly payroll had been or- dered before the union organizing campaign began. We adopt the judge's finding of a violation and will set aside the election. In February 1985 the Respondent transferred its warehouse to Fairfield, California, approximately 55 miles from the former warehouse location. An effect of this transfer was to delay the employees receipt of their biweekly paychecks from Fridays to Mondays, or later. After receiving complaints about the delay, the Respondent's president, Nizamian, spoke to his ad- ministrative and financial manager, Colunga, during the first 5 days of March 1985. Nizamian testified, "I said there seems to be a problem with the timing of the payroll. I want to make sure that it is either [sic] paid on Fridays even if it's necessary to send up a courier and I want you to look into the possi- bility of switching over to a weekly payroll as quickly as possible." (Emphasis added.) The Re- spondent offered no evidence that it took any steps to change the payroll system from early March until it campaigned against the Union in August. Regarding this time period, Nizamian testified that he went on a "long trip." Colunga, although still employed by the Respondent, did not testify. On 13 August Nizamian circulated a memo which urged the Respondent's employees not to sign union authorization cards and announced a meeting "to review the future of Dakin, our Fair- field facility, and our employees." There is no evi- dence to show that such a meeting would have oc- curred absent the union organizing campaign. In the meeting, employee dissatisfaction, with the de- layed paychecks was reiterated. Nizamian respond- ed that he thought "it" had been taken care of and that he had told Colunga to take care of "that." On 30 September, the Respondent's chief operating of- ficer circulated a memo which stated, "I am pleased to inform you that per your suggestions and our discussion on August 15, you will be paid on a weekly basis beginning Friday, October 25." (Em- phasis added.) The judge found that the change to a weekly payroll was a significant new benefit and that the Respondent had known its employees were inter- ested in it since March 1985. The judge further found that the Respondent had not implemented any change in the payroll system until after it became aware of the employees' union organizing activity and that the memo announcing the new benefit linked the change to the employee concerns expressed at the 15 August meeting. The judge recognized that the mere grant of benefits during the critical period is not per se grounds to set aside an election, quoting Red's Ex- press, 268 NLRB 1154, 1155 (1984): "As a general rule, an employer's legal duty in deciding whether to grant improvements while a representation pro- ceeding is pending is to decide that question as it would if the union were not on the scene." In concluding that a violation existed, the judge also quoted Delta Data System Corp., 279 NLRB 1284 (1986), in which the Board adopted the judge's finding of a violation based on that re- spondent's changes of its employees' terms of em- ployment during the critical period. There the judge noted that none of the changes had been made before the union organizing campaign and that management had not "followed up and imple- mented by any sequential chain of events" the changes it had previously discussed. The record evidence here indicates more than 5 months of inactivity regarding the change of the payroll system, despite Nizamian's March order. We cannot agree with the Respondent's or the Chairman's implicit position that a single, oral order which the subordinate apparently ignored and the superior apparently forgot and of which there is no evidence of memorialization or a subse- 284 NLRB No. 9 R. DAKIN & CO. 99 quent step of implementation, shows that the Re- spondent would have changed the payroll system absent the union organizing campaign. Moreover, we note that the assertion of the ex- ceptions and dissent that Nizamian ordered the change in March itself mischaracterizes the evi- dence. As quoted above, Nizamian's order was that the then biweekly payroll arrive on Fridays even if it required a courier, and merely told Colunga to look into the possibility of switching to a weekly payroll as soon as possible. Thus, the change to a weekly payroll which occurred during the critical period was not specifically ordered previously. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, R. Dakin & Company, Fairfield, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the election con- ducted on 22 October 1985 in Case 20-RC-15934 be and is set aside and remanded to the Regional Director for Region 20 for the purpose of schedul- ing and conducting a second election at such time as he deems the circumstances permit a free choice in the issue of representation. [Direction of Second Election omitted from pub- lication.] CHAIRMAN DOTSON, dissenting. Unlike my colleagues, I cannot agree with the judge's conclusion that the Respondent violated Section 8(a)(1) by changing the payroll system from one where employees received paychecks semimonthly to one where paychecks are issued each Friday. The evidence clearly indicates that the Respondent's president sought to implement this change several months prior to the Union's or- ganizing campaign, and remedied his subordinate's failure to do so as soon as he was aware of that fact. I am thus confounded by the majority's adop- tion of the judge's finding that the change was un- lawfully motivated by the union campaign. The Respondent manufactures and sells stuffed animals and related gift items at several locations. The facility at issue here in Fairfield, California, opened in February 1985. 1 In March, the Respond- ent's president, Harold Nizamian had a discussion with employee Robert Nichols at the Fairfield fa- cility. Nichols said that there was a great deal of employee dissatisfaction because the paychecks were received sometimes on Mondays and some- times on Tuesdays. Nichols asked if the paychecks 1 All dates are in 1985 could be received on Fridays. 2 Nizamian told him that he saw no reason why a Friday payday could not be worked out. Nizamian also said that it might take some time to implement, and that possibly the facility could go with a weekly payroll system that the Company had used at one time at a different fa- cility. Subsequently, Nizamian told the manager of the Fairfield facility that the Company was work- ing on changing the payroll system. Nizamian also told Victor Colunga, the Respondent's administra- tive and fmancial manager, that he wanted to make sure employees at the Fairfield facility were paid on Fridays. Nizamian told Colunga that he wanted him to look into the possibility of switching to a weekly payroll as quickly as possible. Colunga said he would do so, but that it would take some time to effectuate. Thereafter, Nizamian left on a long trip. The Union filed a representation petition for the employees at the Fairfield facility on 14 August. In response to rumors about the union organizing campaign, the Company circulated a memo on 13 August to all Fairfield employees from Nizamian discussing the negative aspects of signing a union authorization card. The memo also announced a meeting to be held on 15 August "to review the future of Dakin, our Fairfield facility, and our em- ployees." At this meeting, Nizamian welcomed new employees, and company policies and benefits were reviewed. The Union was not mentioned di- rectly, although there were statements concerning the Company's open-door policy, its practice of solving employee problems on a one-to-one basis, and the lack of need for a third party to become involved. After the Company finished, employees asked questions. One employee asked why employ- ees could not be paid on a weekly basis, on Fri- days. Nizamian replied that he thought it had been taken care of, that he had told Colunga to take care of it, and that Nizamian was very unhappy about it. The next day Nizamian told Colunga to take care of it immediately because Nizamian had promised it would be done and he was embar- rassed. On 30 September, a memo issued to all Fairfield facility employees from the chief operating engi- neer stating in part that "per your suggestions and our discussion on August 15, you will be paid on a weekly basis beginning Friday, October 25." The representation election was held on 22 October. The Union lost the election by a margin of 13 to 11. 2 Dakm employees were scheduled to be paid on the 15th and at the end of each month In March, Fairfield employees were told they would receive their paychecks the day after payday because of the time it took to deliver the paychecks from the San Francisco office. 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As the judge correctly states, granting benefits prior to an election is not per se grounds for setting aside an election. The critical factor is whether the changes have been made in order to influence the employees' votes. If an employer's actions were not altered by the union's presence, the election will not be set aside. Red's Express, 268 NLRB 1154, 1155 (1984). Here, the judge found that the change in the payroll system was unlawful because the memo of 30 September linked the change to the 15 August meeting. He also found that although the Company had been aware of employee dissatisfac- tion with the payroll system since March, it did not change the system until after it learned of the union campaign in August. I cannot agree. The judge's analysis completely ignores the fact that the Respondent's president ordered the change in March, prior to the union campaign. When he became aware of the fact that his directions had not been carried out, he took immediate steps to remedy the situation. This action was not influ- enced by the Union's presence, but rather by Niza- mian's desire to keep his word to the employees. In addition, although the 30 September memo men- tions the discussion at the 15 August meeting, I note that there was no mention of the Union at that meeting or in the memo circulated thereafter instituting the change. The "suggestions" referred to in the memo could quite easily be a reference to the original conversation held between Nizamian and employee Nichols in March; the mention of the discussion at the 15 August meeting was an ac- knowledgment of the employee inquiry which made Nizamian aware that the switch in payroll system had not yet taken place, something he erro- neously assumed had occurred pursuant to his March directives. Further, it is significant that Ni- zamian's response to the employee question at the meeting reflected his surprise and dismay at learn- ing that the change had not been implemented, de- spite his earlier orders to Colunga. Such a response clearly let the employees know that the change had been ordered to the union campaign, and that its 22 October implementation was not in response to the Union. In light of these factors, I cannot join my colleagues in finding that the Respondent violated Section 8(a)(1) by its actions. Accordingly, I would dismiss the complaint and certify the results of the election. Christine Rails, Esq. and Sally Spencer, Esq., for the Gen- eral Counsel. Robert G. Hulteng, Esq., and Mark E. Robson, Esq. (Lit- tler, Mendelson, Fastiff & Tichy), of San Francisco, California, for the Respondent-Employer. Joseph R. Colton, Esq. (Beeson, Tayer & Silbert), of San Francisco, California, for the Charging Party-Petition- er. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge. The Charging Party, Teamsters Local Union 78 affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, filed the original unfair labor practice charge in this case on 28 October 1985. The Charging Party filed a first amended unfair labor practice charge in this case on 13 December 1985. I usually will refer to the Charging Party in this decision as the Union or as the Petitioner in the repre- sentation case. The Regional Director of Region 20 of the National Labor Relations Board, who was acting on behalf of the General Counsel of the Board, issued the complaint in this proceeding on 10 December 1985. The General Counsel alleged that the Respondent, R Dakin & Com- pany, had engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. The Respondent filed an answer to the General Counsel's complaint and denied that it had engaged in the alleged unfair labor practices. I usually will refer to the Respondent in this decision as the Company or as the Employer in the rep- resentation case. The Petitioner filed the representation petition in this case on 14 August 1985. The Petitioner and the Employ- er signed a Stipulation for Certification Upon Consent Election that was approved on 1 October 1985 by the Regional Director of Region 20 of the Board. An elec- tion by secret ballot was held on 22 October 1985 among the employees in the unit described below: All fulltime and regular parttime warehouse persons employed by the Employer at its premises in Fair- field, California; excluding office clerical employees, guards and supervisors as defined in the Act. The tally of ballots disclosed that 11 employees cast votes for the Petitioner, and that 13 employees cast votes against union representation. There was one challenged ballot that was not determinative of the election result. The Petitioner filed on 28 October 1985 Objections to Conduct Affecting Results of Election, The Regional Director of Region 20 of the Board issued on 20 December 1985, a Report on Objections, order consolidating cases, and notice of hearing. The Re- gional Director concluded that there were substantial and material issues of fact regarding the Petitioner's Ob- jections 1, 2, and 7 that could be best resolved by a hear- ing. Accordingly, he ordered that the complaint case re- ferred to above be consolidated with the representation case for hearing. The Petitioner withdrew Objections 3, 4, 5, 6, and 8. I heard the evidence in this consolidated proceeding on 6 March 1986 at Fairfield, California. The General Counsel made a closing argument on the record at the hearing. The attorney for the Charging Party and the at- R. OAKIN & CO 101 torneys for the Respondent filed posthearing briefs by the due date of 10 April 1986. FINDINGS OF FACT I. JURISDICTION The Company is a California corporation with offices in South San Francisco, California. The Company's facil- ity involved in this proceeding is located at Fairfield, California. The Company is engaged in the manufacture and wholesale sale of stuffed toys and related gift items. During the calendar year that ended on 31 December 1984, the Company sold and shipped from its Fairfield facility products, goods, and materials valued in excess of $50,000 directly to points located outside the State of California. Based on the pleadings and the evidence presented in this proceeding, I find that the Company has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION A. The Events Before August 1985 This proceeding pertains to events that took place at the Company's warehouse facility located in Fairfield, California. The Fairfield facility opened in February 1985. At that time the Company's employees at its South San Francisco facility were given the opportunity to transfer to the Fairfield facility. The Fairfield facility is about 55 miles from the South San Francisco facility. The Company's headquarters office remained in South San Francisco at that time. The foregoing findings are based on a credited portion of the testimony, of Cherryl Paul. She has been the per- sonnel manager of the Company since May 1984. As of August 1985 the work force at the Fairfield fa- cility consisted, in part, of employees who once had worked at the Company's South San Francisco facility and, in part, of new employees. The Company views a new employee as being anyone who has not worked for the Company more than a year. As of 15 August 1985 about one-half of the 25 employees at the Fairfield facili- ty fell within the Company's definition of a new employ- ee. The foregoing findings are based on credited portions of the testimony of Harold A. Nizamian and Paul. Niza- mian has been the president of the Company since 1967. On 1 March i985, the Company held an open house at its Fairfield facility. All the employees at the Company's Fairfield facility and at its South San Francisco facility were invited to attend. The Company's managers and a few local dignitaries also were invited. The event was not open to the general public. Nizamian tried to explain the Company's background and its philosophy to the em- ployees on that 1 occasion. The foregoing findings are based on a credited portion of the testimony of Nizarnian. The working hours at the Fairfield facility are from 8 a.m. to 4:30 p.m. The foregoing findings are based on a credited portion of the testimony of Walter James Holmes. He had been employed by the Company for about 9 years and 3 months at the time of the hearing. He was working as a warehouseman at the Fairfield facility at the time that he testified. He did not sign a union authorization card. As indicated on the record at the hearing prior to the time Holmes testified, I am not related to him. (See Tr. 148.) Victor Colunga is the Company's administrative and financial manager. During the establishment of the Fair- field facility, Colunga acted as the liaison for the home office. He was not in charge of the day-to-day operations at Fairfield. He assisted in getting the systems of the home office worked out with the systems at Fairfield. The foregoing findings are based on a credited portion of the testimony of Nizamian. Colunga did not testify as a witness in this proceeding. Colunga held a meeting with the employees at the Fairfield facility in March 1985. Colunga told the em- ployees that they were going to receive their paychecks 1 day later than the payday; that it took until 11 a.m. for personnel to prepare their paychecks at the South San Francisco office; and that it would be too late in the day to deliver them to the Fairfield facility on the payday. Therefore, the paychecks would be delivered to the Fairfield facility the day after the payday. Mike Winslow, an employee, asked Colunga why the Fairfield employees had to get their paychecks late. Winslow also asked Colunga why their paychecks could not be prepared at the Fairfield branch of the Bank of America. Colunga said the Fairfield branch of that bank was a small facility. Winslow told Colunga that he lived on a day-to-day basis, and that he would like to get his paycheck every week. Colunga replied that a lot of paperwork was in- volved; that he would take the matter back to the front office; that he could not give Winslow any guarantee, but he would look into the problem. At that time the employees were paid on the 15th day of the month and also at the end of the month. The findings in the foregoing paragraphs are based on a composite of credited portions of the testimony of Jose Palacios, Donald Dear, and Holmes. Neither Colunga nor Winslow testified as witnesses in this proceeding. Jose Palacios is employed as a warehouseman at the Company's Fairfield facility. He has worked for the Company since 8 October 1984. Palacios was the em- ployee who first contacted the Union regarding organiz- ing the employees of the Company. Palacios handed out union authorization cards to other employees, and he asked employees to sign the cards. In the weeks prior to the election, Palacios handed out union leaflets to em- ployees as the employees left work. Palacios also served as the Union's observer at the representation election. At the hearing, Palacios acknowledged that he was planning to leave his employment with the Company. He planned to seek employment with another employer after his graduation from school to become a diesel mechanic. Donald Dear has been employed by the Company since 1972. Dear worked at the Company's South San Francisco facility before working at its Fairfield ware- 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD house. At the time of the hearing, Dear was the lead warehouseman in the area of receiving, replenishing, and stocking at the Company's Fairfield facility. He did not sign a union authorization card. Based on their demeanor while they were testifying, I have credited the portions of the testimony of Palacios, Dear, and Holmes that are reflected in the composite set forth above. Palacios' account was the most detailed of the three witnesses. The accounts of all three witnesses are not inconsistent, except that Palacios indicated there were two meetings with Colunga while Dear and Holmes described just one meeting with Colunga. I find that Dear and Holmes' accounts are accurate, and that there was just one meeting with Colunga as described above. The Company's employees at its Wheeling, Illinois fa- cility are paid on a weekly basis. The foregoing findings are based on a credited portion of the testimony of Leslie B. Seely III. He has been vice president of finance of the Company since April 1984. In early March 1985, Nizamian had a conversation with Robert Nichols who is an employee at the Compa- ny's Fairfield facility. Nichols is married to Nizamian's niece. Their conversation took place at the Fairfield warehouse. Nichols told Nizamian that there seemed to be a great deal of dissatisfaction because the payroll checks were received sometimes on Monday and sometimes on Tues- day. Nichols asked Nizamian whether the paychecks could be issued on Fridays. Nizamian replied that he saw no reason why that could not be worked out. Nizamian told Nichols that it might take some time to work it out, and possibly the Company could go back to a weekly payroll system that it had at one time at the South San Francisco facility. As a result of his conversation with Nichols, Nazamian spoke to Harold Westover, who was the manager of the Fairfield facility from November 1984 through mid- March 1985. Nizamian spoke to Westover on that subject first at the Fairfield facility and later on the telephone. At the Fairfield facility, Nizamian told Westover that Ni- zamian had heard there was some dissatisfaction about the timing of the payroll payments. Nizamian said he wanted it corrected as soon as possible. Nizafnian told Westover that he would be talking to others in South San Francisco, and they would try to work it out as soon as possible. Nizamian said, however, that because the Company's payroll was done by the Bank of Amer- ica, that it would take some time to do so. Subsequently, in early March 1985 Nizamian spoke With Westover by telephone and told him that the Com- pany was working on the change in the payroll timing. Nizamian spoke with Colunga regarding the Fairfield payroll during the first 5 days in March 1985. Their con- versation took place at the Company's South San Fran- cisco headquarters. Nizamian told Colunga that there seemed to be a problem with the timing of the payroll, and that Nizamian wanted to make sure that it was paid on Fridays even if it was necessary to send a courier. Ni- zamian told Colunga that he wanted Colunga to look into the possibility of switching over to a weekly payroll as quickly as possible. Colunga told Nizamian that he would do so, but that Nizamian should realize that it would take some time to get it done becasue they had to extract the Fairfield payroll from the group payroll that was done by the Bank of America. Nizamian thereafter left on a long trip, and he assumed that Colunga had taken care of the matter. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Nizamian. Co- lunga, Nichols, and Westover did not testify as witnesses in this proceeding. Respondent's Exhibit 1 is a copy of the Company's personnel policy and practice manual. It has been in effect since October 1984. The provisions of the manual have been in effect at all of the Company's facilities except for the Long Island facility. A copy of the manual is given to each employee during orientation. Additional copies are available to employees at the Com- pany's facilities. The exact language in the section entitled "Employee Suggestions and Grievances," that appears on page 11 of Respondent's Exhibit 1, also was contained in the Com- pany's manual that preceded Respondent's Exhibit 1. That section states: EMPLOYEE SUGGESTIONS AND GRIEVANCES Employees should feel free to submit suggestions or complaints at any time. Normally, an employee should discuss problems with his or her immediate supervisor. If an acceptable solution cannot be achieved, the matter should be referred to a Com- pany Officer. The President of R. Dakin & Compa- ny has always had a basic "open door" policy to- wards all employees, and any employee who has any problems or suggestions should feel free to dis- cuss the matter with the President or any other Of- ficer of the Company at any time. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Paul and docu- mentary evidence. The policy quoted above, as set forth in the "Employ- ee Suggestions and Grievances" section of the Company Personnel Policy and Practice Manual has been the policy of the Company since 1967. Two people em- ployed at the Company's Fairfield facility had come to see Nizamian at the Company's South San Francisco office. Both persons spoke to Nizamian about their prob- lems sometime after the Fairfield facility had opened and prior to 15 August 1985. One person was Wally Walker, a supervisor, and the other person was employee Holmes. Each one came to Nizamian's office during their working hours. At the hearing Nizamian believed that they were paid for the time they used to see him. The foregoing findings are based on a credited portion of the testimony of Nizamian. Holmes testified that he had heard Nizamian and other persons in company man- agement talk about having an open-door policy. Holmes had heard about that company policy throughout the time of his employment that began in 1976. Walker did not testify as a witness in this proceeding. Throughout his employment, which began in 1972, Dear had heard Nizamian state that anybody who had R. DAKIN & CO. 103 any problems should feel free to go to his office and talk to him The foregoing fmdings are based on a credited portion of the testimony of Dear. In light of the documentary evidence and the testimo- ny of Paul, Nizamian, Holmes, and Dear, I have not credited Palacios' testimony that he was unaware of the Company's open-door policy prior to 15 August 1985. The Company has had a policy since 1967 to review Company benefits every year. That review usually is done in the early part of the year or in the spring of each year. The foregoing findings are based on a credited portion of the testimony of Nizamian. Respondent's Exhibit 2 is a copy of the Company's benefits brochure. It is entitled "The Total Benefit Pro- gram for the Dakin Family." Paul said that she had been told by Roger Burrill that the Company reviews its benefit programs in the spring of each year. Therefore, Paul conducted such a review of the benefits in the spring of 1985. As a result of that review, the Company changed its dental coverage so that 100 percent of preventive care was paid for; added another holiday; and added some cost containment meas- ures to the health program. Respondent's Exhibit 2 was published after the review in the spring of 1985, and it was in effect from that time until at least the time of the hearing in this proceeding. Copies of Respondent's Exhibit 2 were distributed to em- ployees in June 1985. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Paul and docu- mentary evidence. Burrill is the Company's chief operat- ing officer. He did not testify as a witness in this pro- ceeding. In late 1983 the Company's board of directors instruct- ed company management to consider a 401(k) plan for the entire Company. The 401(k) refers to a section of the Internal Revenue Code that allows employees to defer part of their earnings into a tax-deferred investment ac- count. An employer is not required to, but an employer may, contribute to the employee's tax-deferred account. There were various discussions regarding such a 401(k) plan in 1984 at the Company. In late 1984 the de- velopment of such a plan was tabled. In April 1985 Seely resumed working on a 401(k) plan for the Company. The Company's attorneys redrafted the plan and presented it on 17 July 1985 to the Company's board of directors. Seely said at the hearing that the draft of the 401(k) plan was 99.9 percent complete when it was presented to the Company's board of directors. The plan was to be appli- cable to all employees of the Company and not just ap- plicable to the employees at its Fairfield facility. The foregoing findings are based on a credited portion of the testimony of Seely. B. The Events on 13 August 1985 General Counsel's Exhibit 4 is a copy of a one-page typewritten memo dated 13 August 1985 from Nizamian to all the Fairfield employees on the subject of the Union. The parties stipulated it was distributed to the employees at the Fairfield warehouse about 13 August 1985. General Counsel's Exhibit 4 states: August 13, 1985 Memo To: All Fairfield Employees From: Harold A. Nizamian Subject: Union We have recently learned that you may be con- tacted by a union to sign union cards. In our opin- ion, you should be very careful with regard to sign- ing anything, particularly a union card. By signing such a card, you could in some circumstances be obligating yourself to pay initiation fees, dues and assessments to the union, and subjecting yourself to union discipline and possible fines. Very frankly, we hope that no employees will sign any union cards. We say this because R Dakin & Company does not want to be subjected to a campaign by a union which would interfere with the direct and personal relationship with our em- ployees and which could disrupt our operations. We have an open door policy at R Dakin & Company, and we encourage you to bring to our attention any grievances of any nature which you may have. We plan to meet with you Thursday to review the future of Dakin, our Fairfield facility, and our employees. We believe that you will not want to be continu- ously harassed and bothered and solicited by a union whose only real interest, in our opinion, is to have a monthly dues payment made to it a condi- tion of your ability to continue to work for R. Dakin & Company. I suspect that the union has not told you that, if an election were to be held, R. Dakin & Company will be required by law to supply the union with your names and home addresses. Thus you and your family could expect to be bothered at your home by phone calls, letters, or personal visits. Would you want to have your privacy so invad- ed? Would you want to have your name and home address on permanent file with a union? Who knows who will get hold of your name and address once it's in the union's hands. In this day and age I would prefer not to have my name and home ad- dress sitting around some union hall. If this doesn't appeal to you, think long before signing a union card. You can expect that the union will do every- thing it can to pressure you to sign cards because it has a big financial stake with regard to the money that it can collect from you every month if it is suc- cessful. We hope that you won't sign a union card. We believe that getting involved with a union could only work to your disadvantage. 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In our opinion, it is in your best interest not to sign a union card. Don't let a union get its hands on your money. Don't be fooled. Don't sign a union card. Very sincerely, Harold A. Nizamian President The foregoing findings are based on a stipulation by the parties and documentary evidence. Nizamian acknowledged at the hearing that the Com- pany knew there were rumors to the effect that either someone had distributed union authorization cards or that there had been a union meeting. Nizamian stated, "We just knew that something was going on." That was one of the reasons for holding the meeting announced in the General Counsel's Exhibit 4. In addition, Nizamian believed that some employees were not fully aware of the Company's history and the Company's policies. The foregoing findings are based on a credited portion of the testimony of Nizamian. Seely acknowledged at the hearing that "one of the reasons this memo came out was that there had been some talk about some possible union activities at Fair- field." The foregoing findings are based on a credited portion of the testimony of Seely. Paul acknowledged at the hearing that she had be- lieved that union authorization cards were being passed around at the Fairfield facility. That was one of the rea- sons for the meeting announced in General Counsel's Ex- hibit 4. Other reasons for the meeting were to talk to the Fairfield employees about the Company's history, open- door policy, and the Company's benefits. The foregoing findings are based on a credited portion of the testimony of Paul. Erik Kellner is the manager at the Fairfield facility. He saw a copy of General Counsel's Exhibit 4 on 14 August 1985. He acknowledged at the hearing that he had heard rumors about union organizing activity at the Fairfield facility, but he said he had no direct knowledge of that until sometime after 15 August 1985 when he was informed about the representation petition. The foregoing findings are based on a credited portion of the testimony of Kellner. C. The Events on 15 August 1985 The meeting that was announced in General Counsel's Exhibit 4 was held on 15 August 1985, at the Fairfield facility. The meeting began shortly after 10 a.m. in the lunchroom, and ended before noon. About 25 employees of the Fairfield facility attended. Nizamian, Burrill, Paul and Seely spoke to the employees on that occasion. Kellner, the warehouse manager, and David Ellis, the distribution manager, also attended the meeting, but they did not give speeches at the meeting. The foregoing findings are based on a composite of credited portions of the testimony of Dear, Holmes, Kellner, Nizamian, Paul, and Seely. Palacios gave a dif- ferent version in that he described two similar meetings of management personnel with the employees at the Fairfield facility. Palacios said one meeting was held on 15 August 1985, and the second took place about a week later, which would have been 22 August 1985. Palacios was the only witness to give two accounts of two ,meet- ings with employees on 15 and 22 August 1985. The tes- timony of the other witnesses was that no meeting took place on 22 August 1985. Based on their demeanor, I found the other witnesses were convincing in their testi- mony on this point that no meeting with the Fairfield employees and management occurred on 22 August 1985, Therefore, I find that Palacios' recollection of a second meeting on 22 August 1985 is in error, and I have not credited his testimony on this point. Palacios' testimony regarding what was said at the meeting with the Fairfield employees also differed sig- nificantly from the testimony of the other witnesses. The other witnesses who testified on this subject are Dear, Holmes, Nizamian, Paul, and Seely. I found their recol- lections of this event to be consistent. I also found that they testified regarding this event in a convincing manner; that is, with confidence and with assurance that they recalled what had been said on that occasion and that they were relating the facts accurately. Thus, after considering the factors of perception, memory, and abili- ty to relate facts on the witness stand, I have credited the accounts of Dear, Holmes, Nizamian, Paul,t and Seely about what was said at the meeting on 15 August 1985. Moreover, I also have considered in connection with the above credibility resolution the Respondent's argument that Palacios' version of what was said at the meeting was not corroborated by any other employee even though about 25 employees were present. Harvard Fold- ing Box Co., 273 NLRB 841 (1984), and Colorflo Decora- tor Products, 228 NLRB 408 (1977). Nizamian was the first speaker at the 15 August 1985 meeting with the employees at the Fairfield facility. Ni- zarnian told the employees that he was aware Of the fact that a substantial portion of the employees were new em- ployees. He said that the Company took great pride in the employee relations that it had throughout its history. Nizamian said that he wanted to make the new employ- ees aware of the Company's history. Nizamian also told the employees that the Company did business not only in the United States, but also all over the world. Nizamian told them that the Company throughout its history had developed a corporate culture of a sense of family, and that Nizamian wanted those new employees to feel that they were a part of the family. Nizamian told them that the Company always had had good relations, and that some of the employees who were present at the meeting had made use of Nizamian's open-door policy. He said that some of the employees had come to him in the past when they had had problems. Nizarnian also told them that he wanted to reiterate the fact that it had always been the Company's policy, and that the open-door policy was an ongoing company policy. Nizamian also told the employees that they did not need a third party involved in any problems; that the Company always had solved their problems in the past on a one-to-one basis; and that the Company could continue doing that in the future. R. DAKIN & CO. 105 Roger Burrill spoke after Nizamian did. Burrill wel- comed the new employees to the facility; told them that he was glad to have them there; that he hoped that the employees could continue to work as a group; and said that he felt it was important for the people in the ware- house to feel that they were a part of a team. Burrill also told the employees that the Company always had been a closely knit corporation; that the it took pride in the fact that it was a people-oriented company; that people always had felt free to come to the Company with their problems; that sometimes there was a problem in finding Nizamian because he traveled a great deal; and that Bur- rill wanted to assure the employees that, if Nizamian was not there, the employees were free to come to see Bur- rill. Paul spoke about the Company's benefits program, and she provided the employees with copies of the Compa- ny's benefits brochure. (Resp. Exh. 2.) She used the bro- chure as a guide to discuss the benefits in detail. She ex- plained to the employees how the Company had selected the benefits, and that it reviewed the benefits each year. Seely spoke to the employees after Paul did. Seely spoke to them about a 401(k) plan that the Company was implementing. He said that a draft of a 401(k) plan had been presented to the Company's board of directors on 17 July 1985. Seely then outlined the plan to the employ- ees, and he explained to them some of the basic things available under the 401(k) plan and the benefits of a 401(k) plan as a tax-deferred savings plan. After the speeches had been concluded, two employ- ees asked questions at the meeting. One of the employees was Calvin Bennett, and the other employee was Pala- cios. Bennett asked why the employees could not be paid on a weekly basis on Fridays, and he asked why did they have to wait for the whole weekend to pass before get- ting paid. Nizainian replied that he thought it had been taken care of. Nizamian said that he had told Victor Co- lunga to take care of that, and that Nizamian was very unhappy about it. At the hearing, Nizamian said that he had been very angry about that. Palacios asked why the Company did not have alter- nate selections to its current health plan. Paul responded to that question. She said that the Company had a very good and a very competitive health plan; that it had re- viewed other plans during the spring review, but it found no plan to be more cost effective or any better than the current plan. The findings in the foregoing paragraphs are based on a composite of credited portions of the testimony of Dear, Holmes, Nizamian, Paul, and Seely. Burrill did not testify as a witness in this proceeding. As indicated above, I have not credited Palacios' version of what was said for the reasons I have given previously. The next day after the 15 August 1985 meeting Niza- mian spoke to Colunga on the subject of the Fairfield payroll. Nizamian told Colunga that he was very unhap- py that it had not been taken care of, and that Nizamian wanted it done "post-haste" because Nizamian had prom- ised the people that it would be done, and Nizamian frankly was embarrassed. The foregoing findings are based on a credited portion of the testimony of Nizamian. Colunga did not testify as a witness in this proceeding. D. The Events on 30 September 1985 The General Counsel's Exhibit 5 is a copy of a one page memorandum dated 30 September 1985 from Burrill to the personnel at the Fairfield facility on the subject of the weekly payroll. The parties stipulated that General Counsel's Exhibit 5 was distributed on 30 September 1985 to employees at the Fairfield warehouse. General Counsel's Exhibit 5 states: Date: September 30, 1985 To: Fairfield Facility Personnel From: Roger Burrill, Chief Operating Officer Subject: Weekly Payroll I am pleased to inform you that per your sugges- tions and our discussion on August 15, you will be paid on a weekly basis beginning Friday, October 25. The changeover from the present system will work as follows: On Tuesday, October 15 your regular simi- monthly check covering the period October 1 through October 15 will be delivered to you. On Friday, October 25 you will receive a check covering October 16 through October 25 plus adjustments from previous periods. Subsequent checks will be available on Fri- days. It will continue to be important to make sure your weekly time slips are turned in at the close of your workweek. If you have questions or would like further clari- fication, in addition to myself, please contact either Erik Kellner, Ophelia Kabel or Cherryl Paul. RJB The foregoing findings are based on a stipulation by the parties and documentary evidence. Burri11 did not testify as a witness in this proceeding. E. Other Events During the month of October 1985 and prior to the date of the election, Palacios attended three meetings in small groups of employees with company management. The first meeting took place 3 weeks before the elec- tion. The meeting lasted for about 20 or 30 minutes. Kellner, the manager of the Fairfield warehouse, brought Palacios to that meeting. The meeting was held in an un- occupied office at the front of the warehouse. Other em- ployees who were present at the meeting were: Donald Dear, Tom Farrell, Brian Khen, Peggy Ladd, Frank Par- ioni, and Bobby Vera. Kellner and Paul were present on behalf of management at the meeting. Paul told the em- ployees that she would discuss the benefits that the Com- pany had, and that she was there to answer any further questions. Palacios said that he did ask her a question at 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that meeting. He said that the Company's benefits were the subject of the meeting. The second meeting took place about a week later. Kellner asked Palacios to attend. Except for Peggy Ladd, the same employees who were present at the first small group meeting were also at the second small group meeting. Kellner and Burrill were present at the second meeting for company management. Burrill spoke to the employees about the Company's open-door policy. Bur- rill also said that the employees did not need the Team- sters because it would involve the Company's lawyers against the Union's lawyers. Burrill said that the employ- ees could solve their problems other than having the lawyers solve their problems. Palacios asked Burrill why he was opposed to the Union. Burrill replied that he thought that the problems could be solved without a union. Union's Exhibits 1, 2, and 3 are copies of documents that Burrill gave to employees at the second small group meeting which Palacios attended. All three documents are typewritten on the Company's letterhead stationery. Burrill's name appears at the bottom of each document. Union's Exhibit 1 is entitled "Do You Believe In Free- dom of Choice?" In summary, the document reflects the Company's opinion that the Union would insist on having a union-security clause and a dues-checkoff clause in a contract with the Company. Union's Exhibit 2 is entitled "A Few Facts About the Teamsters Union." In summary, the document reflects the Company's views regarding the current president and a past president of the International Union; the facilities that are available to International officers; and financial matters of the Union. Union's Exhibit 3 is entitled "What Can You Expect From this Union?" In summary, the document reflects the Company's views regarding the location of the local union office; the salaries of local union officers; and the rules and regulations of the local union. The third small group meeting took place a week before the election. It was held in the same office at the front of the warehouse. The same employees were present who had attended the first small group meeting. Kellner and Nizamian were present for company man- agement. Nizamian told the employees that they did not need the Teamsters to solve their problems, if the employees had any problems. Nizamian told them that the open- door policy stood and, if Nizamian was out of the coun- try, Kellner's door was open and the employees could go to Kellner. Nizamian also told them that the employees did not need the lawyers to speak on their behalf to try to solve their problems and, instead, they were there to try to solve problems. Kellner had a sheet of paper with him at the meeting. Kellner told the employees that the paper showed how many times the Union had strikes in various places. Kellner also told them who knew how many more sheets they had that showed strikes. Prior to attending these three small group meetings, Palacios had not attended any such meetings while he was an employee of the Company. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Palacios and docu- mentary evidence. Nizamian, Paul, Kellner, and Dear did not describe the small group meetings that were related at the hearing by Palacios. Burrill did not testify as a witness in this proceeding. The employees mentioned by Palacios, other than Dear, as being present at those meet- ings did not testify as witnesses in this proceeding. The Company's 401(k) plan became effective on 31 December 1985. It did not replace any other kind of company retirement plan or any other type a company benefit. It augmented and improved the Company's exist- ing profit-sharing plan. The foregoing findings are based on a credited portion of the testimony of Seely. F. Conclusions The General Counsel's complaint alleged the following in paragraph 5 to be conduct violative of Section 8(a)(1) of the Act: 5. Respondent, acting through Harold Nizamian, at the Fairfield facility: (a) About August 15, 1985, interrogated its em- ployees regarding their union activities and sympa- thies. (b) About August 15 and 22, 1985, granted its employees benefits in order to discourage their sup- port of the Union. (c) About August 22, 1985, solicited employee complaints and grievances and promised to redress them in order to discourage employee support for the Union. Regarding the allegations in subparagraph 5(a) of the General Counsel's complaint quoted above, I conclude that there is no credible evidence that Nizamian interro- gated employees about their union activities and sympa- thies. Accordingly, I recommend to the Board that the allegations in subparagraph 5(a) be dismissed. Regarding the allegations in subparagraph 5(b) of the General Counsel's complaint quoted above, I conclude that the evidence showed that Nizamian did not grant a new benefit to the employees but, instead, that Nizamian spoke to the employees on 15 August 1985 about an ex- isting benefit—the open-door policy—that had been in effect long before the union organizing activities of the Fairfield employees became known to the Company. Thus, I conclude that the Company's open-door policy was not a new benefit that was announced or implement- ed after the employees began their union organizing ac- tivities. Both the documentary evidence and the testimo- ny revealed that the Company's open-door policy had been in effect long before the employees' union activities. (See secs. A and C of this decision.) Accordingly, I rec- ommend to the Board that the allegations in subpara- graph 5(b) be dismissed. Regarding the allegations in subparagraph 5(c) of the General Counsel's complaint quoted above, I already have indicated in the findings of fact that there was no second meeting between company management and the Fairfield employees about 22 August 1985. I have found R DAKIN & CO. 107 that the meeting in question occurred on 15 August 1985. Nevertheless, I have considered the evidence regarding the subject matter of the allegations in subparagraph 5(c) because 15 August 1985 is close in point of time to "on or about August 22, 1985." The Board's decision in Butler Shoes New York, 263 NLRB 1031 (1982), furnishes guidance in this situation. The Board held at 1032-1033: Lastinger reminded employees of Respondent's ex- isting "open door policy whereby the employees are encouraged to take up any problems that they may have relating to their employment with their supervisor" or with higher management, and stated that "Management sincerely wants to know what its employees are thinking and feeling because it feels that the comments and questions of the employees serve as guideposts." Boroughs echoed the sub- stance of these remarks. Solicitation of grievances, however, is unlawful when it is a form of promise of benefit for rejecting a union and, therefore, may be violative when it expressly or impliedly includes a promise to redress such grievances as are submit- ted. Here, Respondent announced no new policy and did not imply that its response 10 grievances would change. Accordingly, it acted lawfully. Cf. Chester Valley, Inc., 251 NLRB 1435, 1447-48 (1980). The Board's decision in PYA/Monarch, Inc., 275 NLRB 1194 (1985), also furnishes guidance in this situa- tion. The Board held at 1195: We also agree with the Respondent that Regional Vice President Charles Wright did not unlawfully solicit grievances when he told employees that the Respondent's door was always open to hear any complaints. We find, as the Respondent contends, that an open-door policy was the Respondent's practice prior to the outset of the Union's organiza- tional drive. Employee Charles Lanston testified that in previous years he had gone to Wright to talk about problems which concerned him, and he knew he could talk to management officials on his own initiative. The Board has found that it is not an un- lawful solicitation of grievances merely to remind employees of an existing open-door policy if there is no implication that the response to grievances will change. Butler Shoes New York, 263 NLRB 1031, 1032 (1982). The Board's decision in Ace Hardware Corp., 271 NLRB 1174 (1984), furnishes further guidance in this sit- uation. The Board held. The Board has long held that the essence of the violation in solicitation of grievances is not the so- licitation itself but the inference that the employer will redress problems. 3 Crucial to a conclusion of implied redress is a finding that the employer inter- fered with, restrained, and/or coerced employees in their union activities, which is manifested by such factors as change in past practice, announcement of new policy, and timing and context of such change.4 3 Giovanni's, 259 NLRB 233 (1981), see Uarco. Inc., 216 NLRB 1(1974). 4 Granite City Journal, 262 NLRB 1153 (1982); Burger King, 258 NLRB 1293 (1981); NLRB v. Berger Transfer & Storage, 678 F 2d 679 (7th Cu. 1982) In accordance with the Board's decisions noted above, I conclude that the evidence does not support the allega- tions in subparagraph 5(c) of the General Counsel's com- plaint because Nizamian did not announce a new policy or imply that the Company's response to complaints and grievances would change, but, instead, Nizamian remind- ed employees of its longtime existing open-door policy. (See secs. A and sec. C of this decision.) Accordingly, I recommend to the Board that the allegations in subpara- graph 5(c) be dismissed. The General Counsel's complaint alleged the following in paragraph 6 to be conduct violative of Section 8(a)(1) of the Act: 6. About September 30, 1985, Respondent, acting through Roger Burrill, in a memorandum addressed to employees at the Fairfield facility, granted bene- fits to its employees in order to discourage their support for the Union. Regarding the allegations in paragraph 6 of the Gener- al Counsel's complaint quoted above, I conclude that the evidence supports the General Counsel's allegations. The evidence revealed that the subject of the Fairfield em- ployees being paid on a weekly basis and on Friday was a matter of employee concern. (See secs. A and C of this decision.) The first paragraph of Burrill's memo dated 30 September 1985, showed the link, or connection, to em- ployee concerns expressed at the 15 August 1985 meet- ing with management. Thus, the memo to the Fairfield employees stated in the first paragraph: "I am pleased to inform you that per your suggestions and our discussion on August 15, you will be paid on a weekly basis begin- ning Friday, October 25." (See sec. D of this decision for the full text.) Although the Company had known of the employee interest in this subject matter as early as March 1985, it did not implement the new benefit until after the employees' union organizing activities had become known, and after an employee had raised the subject again at the 15 August 1985 meeting with compa- ny management. The change was a new benefit for the Fairfield employees, as distinguished from an existing benefit such as the Company's longtime open-door policy. I conclude that it was a significant new benefit in that the change affected all the unit employees. The Board held in Red's Express, 268 NLRB 1154, 1155 (1984): It is well established that the granting of a wage increase or other benefits during the critical period preceding an election is not per se grounds for set- ting aside an election. The crucial determinant is whether the wage increase or other benefits were granted for the purpose of influencing the employ- 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees' vote in the election and were of a type reason- ably calculated to have that effect. 5 As a general rule, an employer's legal duty in deciding whether to grant improvements while a representation pro- ceeding is pending is to decide that question as it would if the union were not on the scene.° Thus, if the employer's actions were not altered by the pres- ence of the union, the Board will not set aside the election. 5 See NLRB v Exchange Parts Go, 375 U S 405 (1964) 6 Great Atlantic & Pacific Tea Corp, 166 NLRB 27 (1967). The decision in Delta Data Systems, 279 NLRB 1284, 1291 (1986), furnishes guidance in this situation. The de- cision states: Respondent did not make the changes prior to the preelection campaign nor were any of the changes which were previously discussed followed up and implemented by any sequential chain of events. The testimony is convincing that whatever was discussed back in 1981 was neither put in writ- ing nor scheduled to be implemented at any speci- fied future date. It was revived only because the union organization drive began. In addition, the benefits were announced to employees during the meeting called by Respondent's president wherein he informed employees of his union animus I there- fore find that by granting the benefits to employees described in Respondent's "Summary of Policy Ad- justments" during the critical preelection period Re- spondent violated Section 8(a)(1) of the Act. Arrow Elastic Corp., 230 NLRB 110 (1977); Electrical Fit- tings Corp., 216 NLRB 1076 (1975). After considering the foregoing matters, I conclude that the Company engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by granting benefits to its Fairfield employees on 30 Sep- tember 1985 in order to discourage their support for the Union. The General Counsel's complaint alleged the following in paragraph 7 to be conduct violative of Section 8(a)(1) of the Act: 7. About August 22, 1985, Respondent, acting through Cherryl Paul, at the Fairfield facility, promised its employees improved health benefits, in order to discourage their support for the Union. Regarding to the allegations in paragraph 7 of the General Counsel's complaint quoted above, I conclude that the credited evidence does not establish that Paul promised the Fairfield employees improved health bene- fits. (See sec. C of this decision.) As indicated previously with respect to the allegations in paragraph 5(c) of the General Counsel's complaint, I have considered the sub- ject matter of these allegations even though I have found that the meeting in question occurred only on 15 August 1985. I conclude that Paul spoke to the employees about existing company benefits that had been in effect since the spring of 1985 and that had been made known to em- ployees in June 1985. The evidence also showed that the Company had a longtime policy of reviewing its benefits on an annual basis, and that that policy had been in effect long before the employees' union organizing ac- tivities became known to the Company. (See secs. A and C of this decision.) Accordingly, I recommend to the Board that the allegations in paragraph 7 be dismissed. The Petitioner's objections to conduct affecting the re- sults of the election, which were ordered to be heard in this proceeding, are objections numbered 1, 2, and 7. Those objections are that the employer: 1. Changed its method of paying employees in re- sponse to stated employee grievances, and other- wise made unilateral changes in the terms and con- ditions of employment; 2. Unlawfully interrogated employees regarding activity on behalf of the Union; 7. Otherwise coerced employees and deprived them of the rights guaranteed by Section 7 of the Act. Regarding the Union's Objection 1, I conclude that the evidence supports that objection for the reasons dis- cussed above concerning paragraph 6 of the General Counsel's complaint. The new benefit occurred during the critical period before the election, that was from 14 August 1985 through the election on 22 October 1985. The new benefit also affected all the unit employees. The Board held in Dal-Tex Optical Co., 137 NLRB 1782, 1786-1787 (1962): Conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election. This is so because the test of conduct which may interfere with the "laboratory conditions" for an election is considerably more restrictive than the test of con- duct which amounts to interference, restraint, or co- ercion which violates Section 8(a)(1). [Footnote omitted] In view of the foregoing, I recommend to the Board that Union's Objection 1 be sustained. With regard to Union's Objection 2, I conclude, as in- dicated previously with respect to the allegations in para- graph 5(a) of the General Counsel's complaint, that the credited evidence does not support that objection. Ac- cordingly, I recommend to the Board that Union's Ob- jection 2 be overruled. With regard to union's Objection 7, I conclude that the subjects discussed in the small group meetings fo- cused on existing company benefits, such as the open door-policy which predated the Company's knowledge of the union's organizing campaign at the Fairfield facili- ty. I conclude that neither the statements made by Com- pany management personnel verbally at those meetings nor the statements made in Union's Exhibits 1, 2, and 3 contained any threat of reprisal; promise of benefit; or coercion of employees in exercising their right to choose, or not to choose, a collective-bargaining representative. I conclude that the statements in Union's Exhibits 1, 2, and R, DAKIN & CO. 109 3 were noncoercive campaign propaganda. (See sec. E of this decision.) The General Counsel did not contend that any sub- jects discussed by Seely at the 15 August 1985 meeting were changes in benefits or were violations of Section 8(a)(1) of the Act. (See Tr. 180.) However, the Union urges that subject matter as one of the bases, in addition to those discussed above, to support Union's Objection 7. I conclude that the evidence revealed that the decision already had been made by the Company to have a 401(k) plan, and that a 401(k) plan was in preparation before the Company became aware of the employees' union orga- nizing activities. (See sec. A of this decision.) The evi- dence also showed that the 401(k) plan did not become effective until after the election had been held. (See sec. E of this decision.) In view of the foregoing, I recommend to the Board that Union's Objection 7 be overruled. Because I have recommended to the Board that union's Objection 1 be sustained, I further recommend to the Board that the first election be set aside, and that the Board direct that a second election be held at a time deemed appropriate by the Regional Director for Region 20 of the Board. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by granting benefits on 30 September 1985 to its employees at its Fairfield facility in order to discourage their sup- port for the union. 3. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1) of the Act, I shall recommend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor practices and to take affirmative action designed to effectuate the policies of the Act. Nothing contained in the remedial Order should be read to require that the Respondent rescind or withhold the benefits that the Respondent already has granted to its employees. The General Counsel has requested that a visitatorial clause be included in the Order. The evidence presented in this proceeding does not establish the necessity for such a visitatorial clause in this case. Accordingly, I deny the General Counsel's request. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edi I 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 ORDER The Respondent, R. Dakin & Company, Fairfield, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Granting benefits to its employees in order to dis- courage their support for the Union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its Fairfield, California facility copies of the attached notice marked "Appendix." 2 Copies of the notice, on forms provided by the Regional Director for Region 20, 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. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the nonce 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 or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT grant benefits to our employees in order to discourage their support for Teamsters Local Union 78 affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. R. DAKIN & COMPANY