Advo System, Inc

National Labor Relations Board - Board Decisions

Mar 30, 1990

297 N.L.R.B. 926 (N.L.R.B. 1990)

926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Advo System, Inc and Graphic Communications
Local 17M, Graphic Communications Interna-
tional Union Cases 25-CA-19332 and 25-RC-
8570
March 30, 1990
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 25, 1989, Administrative Law Judge
Robert W Leiner issued the attached decision The
Respondent filed exceptions and a supporting bnef,
and the General Counsel and Charging Party filed
briefs in support of the judge's decision
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 conclusions, 3 as modified, and to adopt the
recommended Order as modified
' The Respondent argues that It was prejudiced by the judge s allow
mg sequestered witness Dana Lester to remain in the hearing room
during the testimony of other witnesses and thereafter permitting her to
testify on rebuttal over the Respondent s objections The record shows
that Lester was exempted from sequestration at the close of the General
Counsel s case in chief to assist with his preparation of rebuttal and Les
ter s rebuttal testimony pertains only to Objection 6 on which there are
no findings We therefore conclude that the judge s rulings were not prej
udicial to the Respondent
2 The Respondent has excepted to the judge s credibility findings The
Board s established policy is not to overrule an administrative law judge s
credibility resolutions unless the clear preponderance of the evidence
convinces us that they are Incorrect Standard Dry Wall Products 91
NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have carefully
examined the record and find no basis for reversing his findings Addi
tionally we are satisfied that there is no merit in the Respondent s con
tention that It was prejudiced by partisan conduct of the heanng There
is nothing in the record to suggest that the judge s conduct of the hear
mg rulings resolutions of credibility or inferences he drew were affect
ed by any bias or prejudice
3 The Respondent argues that Director of Branch Operations Boat
man s statement that everything would be negotiable in response to an
unidentified employee s question about what would happen to his or her
pay Increase if the Union got in was too ambiguous to constitute an un
lawful threat to withhold pay raises In affirming the judge s 8(a)(I) find
mg we note that Boatman as the chief supervisor in the Indianapolis fa
cility was well aware of the Respondent s practice of granting wage in
creases in fixed amounts to employees on their respective anniversary
dates that Boatman s response was so comprehensive as to cover this in
crease and that there is no evidence to support the Respondent s conten
tion that the employee s inquiry concerned something other than this
scheduled Increase
In adopting the judge s 8(a)(1) finding based on the Respondent s un
lawful promulgation maintenance and enforcement of a policy or prac
tice of interfering with employee conversations before the election to dm
courage employees from discussing union membership and support we
find it unnecessary to rely on the parking lot incident on the day of the
election involving Supervisor Struck and employees Burke and Stinson
because It is cumulative and resolving it would not affect our Order
The complaint was amended to allege that the
Respondent violated Section 8(a)(1) by creating an
employee attendance policy review committee, for
the purpose of interfering with and discouraging its
employees' membership in and activities on behalf
of the Union The judge found that the Respond-
ent s conduct of an employee attitude survey, at a
time when it had knowledge of union organizing
activities, led not only to the Respondent's wrong
ful creation of the attendance policy review com-
mittee but also to unlawful promises to remedy
other employee grievances uncovered by that
survey, namely, pay rates and benefits, and ventila-
tion and air conditioning systems We adopt, for
the following reasons, the judge's above findings
only insofar as they relate to the formation of the
attendance policy review committee and its staff
mg, continued existence, meetings, and functioning
in the period Apnl-June 1988, and shall modify his
findings, conclusions, and recommended Order ac-
cordingly
Neither the Union's unfair labor practice charge
and objections to the election nor the General
Counsel's complaint contain any mention of the
employee survey or promises relating to matters
other than attendance policy and, therefore, the
Respondent had no notice that those matters were
in issue Further, the General Counsel and the
Union failed to assert, at the hearing or in briefs
either to the judge or the Board, that the survey or
additional promises were unlawful Contrary to the
judge, we find it improper in these circumstances
to base independent unfair labor practice findings
on unalleged violations that have not been fully
litigated See Koons Ford of Annapolis, 282 NLRB
506 (1986), Joe's Plastics, 287 NLRB 210 (1987)
AMENDED CONCLUSIONS OF LAW
The following shall be substituted for Conclusion
of Law 2
"2 Having acquired knowledge of its employees'
union sympathies and activities on February 4,
1988, by recommending and announcing on March
4 and 10, 1988, the formation of the attendance
policy review committee and by staffing and sup-
porting the committee and its continued existence,
meetings, and functioning through April, May, and
June 1988, for the purpose of impeding and inter-
fering with employees' membership in, support for,
and activities on behalf of the Union, the Respond
ent violated Section 8(a)(1) of the Act"
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
297 NLRB No 159
ADVO SYSTEM 927
spondent, Advo System, Inc , Indianapolis, Indiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified
' 1 Substitute the following for paragraph 1(a)
"(a) Coercively interrogating employees, creat-
ing an attendance policy review committee, telling
employees with scheduled pay raises that their pay
raises would be 'negotiable' in the event of a union
victory in the forthcoming election, or promulgat-
ing, maintaining, or enforcing a policy or practice
of interfering with employee conversations for the
purpose of impeding and interfering with its em-
ployees' membership in, support for, and activities
on behalf of Graphic Communications Local 17M,
Graphic Communications International Union"
2 Substitute the attached notice for that of the
administrative law judge
[Direction of Second Election omitted from pub-
lication ]
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 coercively interrogate employees,
create an attendance policy review committee, tell
employees with scheduled pay raises that their pay
raises would be "negotiable" in the event of a
union victory in the forthcoming election, or pro-
mulgate, maintain, or enforce a policy or practice
of interfering with employee conversations for the
purpose of impeding and interfering with and un-
dermining our employees' membership in, support
for, and activities on behalf of Graphic Communi-
cations Local 17M, Graphic Communications
International Union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
ADVO SYSTEM, INC
Steve Robles, Esq ,' for the General Counsel
Brian S Ahearn, Esq (Stringa'ri, Fritz, Kreger, Ahearn,
Bennett & Hunsinger), of Detroit, Michigan, for the
Respondent Employer
Ned E Gath, Esq (Fillenwah, Dennerhne, Groth ii
Baird), of Indianapolis, Indiana, for the Union
DECISION
STATEMENT OF THE CASE
ROBERT W LEINER, Administrative Law Judge This
consolidated matter was heard on May 9 and 10, 1989, in
Indianapolis, Indiana, upon General Counsel's July 15,
1988 complaint, amended July 21, 1988, and a notice of
heanng 1 alleging, in substance, that Advo System, Inc
(Respondent) violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by engaging, commencing
February 4, 1988, in various acts of coercive interroga-
tion, unlawful threats concerning Section 7 rights of em-
ployees, the enforcement of an illegally promulgated rule
interfering with employees' ability to converse with one
another, inter aim, concerning union activities, and the
creation of an employee committee to review the em-
ployer's attendance policy in order to discourage em-
ployee activities on behalf of the Union
Respondent's timely filed answer admits the jurisdic-
tion of the Board, admits certain allegations of the com-
plaint, but denies other allegations and denies the com-
mission of any unfair labor practice 2
In addition, the hearing on the above-unfair labor
practices was consolidated pursuant to an order consoli-
dating cases dated August 3, 1988, with a hearing on ob-
jections to conduct affecting results of election
At the hearing, all parties were separately represented
by counsel and were given full opportunity to call and
examine witnesses, submit oral and written evidence, and
argue orally on the record At the close of the hearing,
the parties waived their right to oral argument and elect-
ed to file postheanng briefs Thereafter, counsel for all
parties filed timely postheanng briefs, all of which have
been carefully considered
From the entire record, including the briefs, and from
my observation of the demeanor of the witnesses as they
testified, I make the following
1 The underlying unfair labor practice charge in Case 25-CA-19332
was filed by Graphic Communications Local 17M, Graphic Communica-
tions International Union (the Union) and served upon Respondent on
June 1, 1988
2 By its answer, Respondent admitted that the following persons, em-
ployed by Respondent are Respondent s supervisors and agents within
the meaning of Sec 2(11) and (13) of the Act James J Bouley, director
of human resources—central division, Jose Boatman, director of branch
Operations—Indianapolis, Bonnie Struck, production manager, Paul
Pete White, operations coordinator, Terry Waldon, shift manager,
John Mattingly, supervisor, James Byrd, supervisor, and Michael
McBrairty, distribution manager
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find,
that at all material times, Respondent, a Delaware corpo-
ration, with its pnncipal office and place of business in
Windsor, Connecticut, maintains a place of business in
Indianapolis, Indiana, and other facilities in the United
States, wherein it is engaged in the business of direct
mail marketing During the 12-month period ending June
30, 1988, Respondent, in the course and conduct of its
business operations, sold and shipped from its Indianapo-
hs, Indiana facility, directly to customers located outside
the State of Indiana, products, goods, and materials
valued in excess of $50,000 Respondent concedes, and I
find, that at all material times it has been and is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act
II THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find,
'that the above-captioned Union, at all material times, has
been and is a labor organization within the meaning of
Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent is the largest direct mail marketing compa-
ny in the United States, employing approximately 5235
employees in regional facilities, in its three divisional
headquarters (Tampa, Florida, Phoenix, Arizona, and
Sharnburgh, Illinois) and in its principal offices in Wind-
sor, Connecticut It has 19 regional offices including the
facility in the central division, the Indianapolis facility,
the only facility involved in the alleged unfair labor
practices
The Indianapolis facility employs 100-135 employees
including shipping and receiving employees in its pro-
duction and maintenance unit and operates on two pro-
duction shifts 7 a m to 5 30 pm, 6 pm to 430 a m
Chief Indianapolis Executive Officer Jose Boatman testi-
fied that there were 60 to 70 employees on the first shift
and 35-40 on the second shift The employees at the In-
dianapolis facility have not been represented by a labor
organization in the past Sometime about the third week
in January 1988, an employee made an initial contact
with the Union for purposes of organization (Tr 160)
and union membership application cards were signed cer-
tainly as early as the end of February 1988 (Tr 34) On
March 14, 1988, Respondent received a telephoned tele-
gram from the Union which notified Respondent that the
Union was organizing Respondent's production and
maintenance employees at the Indianapolis facility This
March 14 telephone call was confirmed by an identical
written telegram and letter both received on March 15,
1988 (R Br at 11, R Exhs 1 and 2)
On April 11, 1988, the Union filed a petition for certi-
fication with the NLRB for the production and mainte-
nance unit at the Indianapolis facility, on April 27 and
28, the Union and Respondent executed a Stipulation for
Consent Election, approved by the Acting Regional Di-
rector for Region 25, on May 2, 1988 An election was
conducted on May 19, 1988 The tally of ballots showed
that of 116 eligible voters, 30 voted in favor of the
Union, 71 voted against the Union, and there were 5
challenged ballots The total valid ballots including the
challenged ballots totaled 106 ballots
On May 25, 1988, the Union filed six timely objections
to the election After investigation of the objections, the
Acting Regional Director, on August 3, 1988, issued his
report on objections to conduct affecting results of elec-
tion, together with recommendations to the Board, an
order directing hearing, and an order consolidating cases
with a notice of hearing In substance, the Acting Re-
gional Director recommended to the Board that certain
of the objections be overruled He ordered, however,
that a hearing be held to resolve issues raised regarding
the existence of an attendance policy review committee,
and other objections No exceptions to the Acting Re-
gional Director's report were filed by either party At
the hearing, the parties stipulated that the substance of
all the objections, with one exception, parallels the alle-
gations of the complaint, as amended The exception is
Objection 6, which alleged surveillance of voters by var-
ious supervisors during the election and is not alleged an
unfair labor practice In entering into the stipulation, Re-
spondent specifically did not waive and reserved the
right to contend that particular alleged objectionable
conduct occurred outside the "critical period" within the
meaning of Ideal Electric & Mfg Co, 134 NLRB 1275
(1961), and Goodyear Tire & Rubber Go, 138 NLRB 453
(1962), i e, that the alleged unfair labor practices, if any,
occurred prior to the filing of the petition or after the
election and therefore could not lawfully be construed as
conduct sufficient to set aside the results of the election
The so-called "critical period," under the above-cited
Board precedent, is the period between the filing of the
April 11, 1988 petition for certification and the May 19,
1988 election itself
B The Allegations of the Complaint and the Parallel
Objections to the Election
In deciding cases alleging the commission of alleged
unfair labor practices, the timing of the acquisition by an
employer of knowledge of employee engagement in ac-
tivities supporting a union (and particularly in cases in-
volving parallel objections to an election) is often cru-
cial I therefore deem it provident to deal chronological-
ly with the allegations of the complaint rather than with
their formal apparance therein
1 Complaint paragraph 5(0
On or about February 4, 1988 and on or about an
unknown date in March 1988, the Respondent,
acting through [supervisor] Paul "Pete" White, at
the facility interrogated its employees about their
own and other employees' union activity and de-
sires
2 Complaint paragraph 5(b)(1)
On or about an unknown date between February
28 and April 11, 1988, at the facility, Respondent
ADVO SYSTEM 929
[acting through Supervisor Michael McBrairty] in-
terrogated its employees, about their union activi-
ties
In support of the above allegations in paragraph 5(0,
General Counsel produced the testimony of only one
witness, Carol Meredith Meredith, a machine worker,
was employed by Respondent from July 1984 until Feb-
ruary 1989 She formally quit employment on March 27
or 28, 1989 No reason for her quitting appears She testi-
fied that after one of the afternoon breaks on February 4,
1988, at about 3 15 p m, while she was working at her
machine, she had a conversation with Supervisor Paul
(Pete) White (Tr 127) He told her that the conversa-
tion was Just between the two of them and asked if she
was "behind this thing" When she asked him "what
thing'"? White said "this union thing" When she told
him that she supported the Union, he asked "why," and
she answered that it was because of the "hideous write-
ups that people were getting" White then asked her why
she supported the Union in view of all that Respondent
has done for the employees such as getting them pay
raises, adding that conditions were better at present than
in the past (Tr 128) When she specified that it was the
bad "write-ups" that prompted her to support the Union,
White asked for an example and she mentioned employee
Lisa Duran who had been written up for her attendance
(Fr 128) White told Meredith that Duran had an attend-
ance problem Meredith denied that Duran had an at-
tendance problem (Fr 129) and White, again stating that
the conversation was "just between me and him" then
left Meredith at her machine and went to the office of
the Plant Director Jose (Joe) Boatman
Paul (Pete) White, a supervisor in charge of interview-
ing, hiring, and training in the production, maintenance,
warehouse, and quality control department (Fr 335)
denied having had a conversation with Carol Meredith
"about the Union" (Fr 335-336) He specifically denied
asking her whether she was "behind the Union thing"
(Fr 336)
With regard to the interrogation alleged in paragraph
5(b)(0, General Counsel produced two witnesses, Joyce
Ray and Steven Burke
Joyce Ray testified that she signed a union card on
February 29, 1988, which fell on a Monday Ray, a state-
ment clerk employed 4 years and 10 months by Respond-
ent, is a unit employee She Incorrectly testified that the
union campaign started in March whereas she had al-
ready signed her union card on February 29 Whether
"union campaign" meant activities commencing only
after the Union's March 14 notification to Respondent is
unknown I conclude from this testimony that union or-
ganizing among unit employees nevertheless preceded
her execution of the union membership card on February
29 In any event, she testified that in the period subse-
quent to her signing the union card, and on a Friday or
Saturday thereafter, she had two conversations in which
she was allegedly interrogated by Respondent's supervi-
sors She was in the company of coemployee Steven
Burke during worktime Supervisor Michael McBrairty
came into her office at or about 5 pm (Fr 31) where he
found Burke and Ray Burke was there to pick up his
check before he started his evening work shift as a fork-
lift operator Ray was about to leave for the day and
placed the conversation as in late March or the begin-
ning of April
Addressing both of them, McBrairty said that he had
been " more or less assigned to find out what he
could about some of the rumors about the Union that
was going around" (Fr 31) He asked them if they had
heard anything about the Union and what their "feelings
were about it" (Tr 31) Ray told him that she had heard
about it and had been to some of the union meetings
(Tr 32) McBrairty said that he felt that the employees
should get both viewpoints so that they could make up
their own mind (Tr 32)
Although McBrairty admitted having the conversation
with Ray and Burke, he specifically denied asking them
if they had gone to union meetings or what the union
leanings or sympathies were (Tr 315) Rather,
McBrairty testified that he had been worried over a
period of days about Ray because she seemed worried
and withdrawn, coming to work with "a kind of fell-
face" He said he sensed that there was "something
wrong" (Tr 313) It-was for this reason, he testified,
that he entered her office and spoke to her privately,
asking her if anything was wrong and if there is anything
that he could do He further testified that she said that
things were bothering her in the Indianapolis branch and
at this point Steven Burke entered the room and joined
in the conversation McBrairty testified that Ray said
that the problems that she was concerned with did not
affect her or her department but she felt that certain em-
ployees were not being treated fairly (Tr 313) It was at
this point, according to McBrairty, that Burke said that
"that's why we're having a union drive" (Tr 314)
McBrairty says that the employees then told him that
they had been attending union meetings and Burke said
he hoped that it would not get him into trouble with
McBrairty (Tr 315) McBrairty told him that if tie were
in Burke's position, he would be inclined to hear both
sides of the story if he were going to make a decision
(Fr 315)
Joyce Ray testified to a further conversation concern-
ing the Union with Paul "Pete" White She did not re-
member whether this was before or after the conversa-
tion with McBrairty but she recalled that it was after
February 29 when she had signed the card She said that
it was on a Friday or Saturday after she signed her Feb-
ruary 29 union card and that it occurred at or about 4
am because she goes in early on those days (Fr 33)
Ray testified that White asked her if she had been to
any union meetings and that she told him that she had
He then asked her what the Union had promised her and
she told him the Union had not made any promises
White answered that "that was just what I thought"
(Fr 34) She testified that night-shift mechanic Dave
Thompson was present and that she recalls that Thomp-
son and White were talking after Ray left them General
Counsel did not call Thompson as a witness to corrobo-
rate Ray nor did he explain Thompson's absence Nor
did Respondent call or explain the absence of Thompson
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As with his denial of the alleged February 4 1988
conversation with Carol Meredith, White denied ever
having a conversation in March or any other time with
Joyce Ray in which he asked her whether she had at
tended a union meeting or what the Union had promised
her (Tr 336)
Discussion and conclusions
Respondent s Knowledge of Employee Union
Activity Consequences
Respondent takes the position that it first acquired
knowledge of union activity among its employees on
March 14 1988, when it received a telephoned telegram
from the Union and the written confirmation of which
concerning the Union s organizing it received the next
day (R Exh I R Br at 11) Respondent concedes that
on March 1 and 2 1988 Respondent conducted an atti
tude survey at its Indianapolis branch on March 3 1988,
based on the results of the attitude survey Respondent s
corporate director of human resources central division
(who participated in the attitude survey) recommended
to Jose Boatman Respondent s director of branch oper
awns for the Indiana facility that the Indiana facility s
attendance policy be reviewed by a committee and that
the committee be composed of employees in a cross sec
ton of job classifications together with members of
management, so that a dialogue could focus on particular
areas of concern to employees (R Br 9-10 Tr 204-
206 213-214) Respondent further concedes that on the
next day, March 4 1988 Director Boatman told employ
ees at shift meetings that an attendance policy review
committee would be formed (R Br at 10)
On March 9, Boatman sent a memorandum to all oper
ations employees ( Employee Attitude Survey Follow
up ) in which he thanked the employees who participat
ed in the prior week s annual employee attitude survey
and informed employees that he was memorializing and
formalizing the commitments made to the committee on
Friday March 4 With regard to attendance policy he
wrote of the formation as of March 10 of a committee
comprised of four hourly employees and selected comps
ny officials whose first meeting would be on March 16
He further informed employees in the March 9 memo
randunis that with regard to benefits a corporate repre
sentative would address the employees on March 17 ex
plain the benefits and answer questions regarding bene
fits that with regard to an apparent ventilation/air condi
tioning problem the matter would be addressed as
quickly as possible and a corporate representative
would arrive in the next week to look at the employees
air conditioning needs and that a ventilation fan was en
route and would be installed as soon as possible with an
air conditioning system to be installed by June 1, 1988,
that Respondent s pay practices (pay matrix) would be re
viewed and that Boatman s findings on the pay review
would be announced on April 7 and that new job oppor
tunities would continue to be posted (R Br at 10-11)
Meetings of the attendance policy review committee
formed, as above noted, occurred in March and April
1988 and a revised attendance policy was adopted by Re
spondent on May 26 1988, 1 week after the election (R
Br at 11)
White Interrogates Meredith
General Counsel s witness Carol Meredith as above
noted testified that on February 4, 1988 she had a con
versation with Supervisor White ( just between you and
me ) in which he specifically asked her whether she was
behind this Union thing (Tr 127) When she told him
that she supported the Union he asked why and she told
him it was because of the hideous wnteups the people
were getting This was the conversation in which White
allegedly told her that the Employer had given the em
ployees more money and was doing things for the em
ployees better than before In particular White asked her
for an example of the hideous wnteups and she men
tioned that employee Lisa Duran had been written up
for attendance (Tr 128) White then proceeded to
Chief Supervisor Boatman s office
It is obvious that if this unlawful conversation oc
curred as early as February 4 1988 more than 5 weeks
before Respondent admits to knowledge of its Indiana fa
cility employees union activities a reasonable and per
haps necessary inference is that it undertook the other
wise annual employee Attitude Survey of March 1-
2 to discover the sources of employee discontent leading
to employees union interest that its March 4 et seq
creation staffing, backing of and participation in, the at
tendance policy committee (leading to the postelection
new attendance policy adoption) constituted an effort to
meet and correct an unpopular and divisive working
condition in order to eliminate union sympathy among
its unit employees
Similarly its March 9 1988 memorandum to all oper
ations employees wherein it openly promised to review
not only the attendance policy but employee benefits
ventilation/air conditioning pay and job posting would
constitute a substantial wide ranging effort, as General
Counsel argues to thwart the Union s organizing drive
and would be clearly a ground for me to recommend to
the Board that the election be set aside The dispositive
issues therefore are whether the conversation between
Meredith and White occurred (White denies its occur
rence) and particularly whether it occurred on Febru
ary 4 1988 5 weeks before Respondent asserts that it ac
quired its first knowledge of union activity amongs em
ployees 3
3 If Respondent is credited that It acquired its first knowledge of em
ployee union activo only on March 14 1988 then its Inquiries creation
formulation and staffing of the attendance policy review committee all
commencing March 1 and 2 1988 would have a benign significance with
regard to the objections to the election While it is true that the alleged
February 4 conversation between White and Meredith occurred outside
the cnocal penod It lays the groundwork for a recommendation to set
aside the election because as Respondent admits the attendance policy
review committee met to perform its function on various dates through
March and Apnl 1988 and led to the adoption on May 26 1988 1 week
after the election of a revised attendance policy (R Br at 11 Tr 21-22
36 214-216 and G C Exh 8) Thus It is clear that the attendance policy
review committee with its Inception outside the cnocal penod canon
ually existed as an Instrument to defeat the union dnve into and beyond
the critical penod when the new attendance policy was actually adopted
Continued
ADVO SYSTEM 931
As Respondent correctly observes (R Br 19), the
General Counsel's proof is supported by the testimony of
a single witness, uncorroborated Respondent argues
that, in context of the record considered as a whole,
Meredith's testimony should be rejected as incredible
Considering the record as a whole, inferences as to
timing, and my observation of the demeanor and inter-
ests of the witnesses, I choose not to do so for the fol-
lowing reasons
General Counsel's Leading Question
General Counsel did not ask Meredith whether she
had a conversation with a company supervisor concern-
ing the Union and, if so, on what date did it occur,
rather, he asked
Q Now, directing your attention to on or about
February 4th of 1988, did you have a conversation
with Supervisor White on that day?
A Yes [Tr 126]
Respondent did not object to the leading nature of the
question when it was put or to the response 4
Not only ,did Respondent fail to object to the leading
question with regard to the date, but, of greater signifi-
cance to me in assessing credibility is that White denied
the conversation entirely, regardless of date Further-
more, I must note that I was impressed by the openness,
directness, and clarity of Meredith's testimony, her ap-
parent lack of money interest, hostility, or other motive,
and was surpnsed that Respondent failed to cross-exam-
ine her on the point 5
As above-noted, White denied any such conversation
with Meredith He also denied, absolutely, any conversa-
tion with Joyce Ray in March or April 1988 in which he
asked her if she had attended any union meetings and
what the Union promised her Although Ray did not
have a clear (actually an incorrect) recollection concern-
ing time and sequence, a problem common to witnesses
testifying to events more than a year before, I was im-
pressed by her veracitY if not her ability to have total
recall of time and sequence of events more than a year
before White's absolute denials of his conversations
which amounted to unlawful interrogations of Meredith
General Counsel Exhibit 8, a Boatman memorandum to the committee,
for instance, demonstrates that an attendance policy review committee
meeting was scheduled on April 18, 1988, for a meeting on April 22,
1988 Thus the attendance policy review committee meetings, though ini-
tiated outside the "critical period," continued therein and thereafter (Tr
131 )
4 Respondent, as General Counsel's bnef notes, was the subject of my
repeated admonitions against Respondent's leading its witnesses General
Counsel goes on to argue (G C Br' at 15-16) that answers to leading
questions on direct examination are to be accorded little weight and are
viewed by the Board as the testimony of die attorney in favor of his cli-
ents position H C Thomson Inc , 230 NLRB 808, 809 fn 2 (1977)
Hence, the irony of the above
5 I sustained General Counsel's objection to Respondent's question on
cross-examination of whether Meredith signed a union authorization card
(Tr 134) as outside the scope of the direct examination, and, more impor-
tantly, there was no offer of proof by Respondent that this question was
preliminary to establishing the date of the alleged Meredith-white Febru-
ary 4 conversation I assume, arguendo, her union sympathy, in any
event, solely on her testimony Thus, I assume, further, that she signed a
union card and, to that extent, has a proumon bias
(allegedly in February 1988) and Joyce Ray (apparently
in March or Apnl 1988) present questions, not of credi-
bility, but of veracity Thus I conclude that Meredith was
on my observation of her and on the record considered
as a whole, both a truthful and perceptive witness, and
Joyce Ray, in any event, as a truthful witness On my
observation and review of all competing testimony, I
evaluated them as not suffering from a lack of veracity
regardless of their recollection of dates
On the other hand, Supervisor White ran into trouble
in his cross-examination by the Union regarding state-
ments he made in a prior Board affidavit concerning his
activities pertinent to the Union's objections to the elec-
tion I regard his admission that his testimony was not
consistent with his prior affidavit as damaging to his ve-
racity and that he was attempting, by his testimony (com-
pared to his pnor sworn statement) to expand on the
facts I do not regard this defect in White's testimony as
accidental or immaterial It related directly to Respond-
ent's alleged surveillance and interference with employ-
ees' freedom of voting Had White admitted to the un-
lawful Meredith interrogation but placed the date at a
later time, I might have reached a different result But
his absolute denial of any such conversations with both
Meredith and Ray, in conjunction with the above-noted
credibility factors, leads me to credit Meredith's affirma-
tion, even in response to General Counsel's unnecessary,
leading question, that the conversation occurred on Feb-
ruary 4, 1988, as alleged in the complaint
It must also be noted that the General Counsel surren-
dered two sworn statements of Meredith to Respondent
for purposes of cross-examination and that, after review
of the statements, Respondent did not attempt to im-
peach Meredith's credibility on the basis of anything in
the statements (Tr 133 et seq )
Lastly, White also absolutely denied the conversation
with Joyce Ray Ray was an articulate witness who
could not remember dates and even sequence But these
defects do not necessarily undermine the witness' veraci-
ty and, indeed, her overall credibility Her testimony that
McBrairty's interrogation of her and Burke occurred on
a Friday or Saturday after she signed her February 29
union authorization card could lead to the inference that
the conversation occurred as early as the first Fnday or
Saturday following the Monday, February 29, execution
of the union card, i e, on March 4 or 5 or March 11 or
12, both dates prior to Respondent's assertion of its first
knowledge of employee union activity In any event, for
purposes of testing veracity and credibility, I am not
bound by a witness' mistaken, even insistently mistaken,
testimony which damages the witness' interest Where
the circumstances of the case demonstrate the witness'
overall credibility and veracity, an inability to recall
dates, days, and even sequence of events is not a dis-
abling credibility defect See generally Plumbers Local
195 (Stone & Webster), 240 NLRB 504, 513-515 (1979),
enfd 606 F 2d 320 (5th Cir 1979)
Respondent argues that Meredith's testimony should
be rejected as incredible because (1) it is not corroborat-
ed In particular, he points to her testimony indicating
that while the conversation occurred at her machine
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with other members of her crew present she testified
they were doing their work (Tr 127) with the =pima
non that she had formed the conclusion that they did not
overhear the conversation Respondent notes that none
of the crew was called to substantiate her testimony But
this was a matter for cross examination with regard to
the loudness or softness of White s questions and how far
away the rest of the crew was and what they were
doing Respondent chose not to inquire of this instead,
at the hearing, by his silence he appeared to acquiesce in
Meredith s assertion that the other crew members were
occupied and might not have heard her conversation
with White In any event her fellow crew members
were equally available to Respondent Ilitchmer Mfg
Co 243 NLRB 927 (1979) (2) Respondent argues that I
should take into account White s firm denial of any such
conversation I have In any contest between White s and
Meredith's respective veracity my conclusion would be
and is to favor Meredith, especially in view of White s
total denial of any such conversation with Meredith and
Ray both of whom I regard as truthful witnesses where
as White suffered from at least some impediment both m
denying any conversation with either of them (I would
discredit White on this ground alone) and his further
problem of being impeached on a material point in his
testimony by a prior sworn affidavit given to the Board
(3) Respondent argues that Meredith s testimony that her
conversation with White occurred as early as February
4 1988 conflicts with the testimony of Joyce Ray who
testified that the union campaign started sometime in
March (R Br at 20 Tr 29) But truthful witnesses
often are unable to accurately testify to events over a
year old with regard to their dates days or even se
quence The Board and courts have long known of this
condition and have nevertheless found witnesses to be
truthful and even perceptive Again, see Plumbers Local
195 (Stone & Webster) above Joyce Ray testified, with
out contradiction by Respondent, and with great insist
ence that she signed her union card on February 29,
1988 As Respondent correctly notes she also testified
that the union campaign started sometime in March
(Tr 29 R Br at 20) But union campaign was unde
fined by Ray and might have been only activities after
the March 14 union telephone telegram to Respondent
If she signed her union card on February 29 ordinary
experience dictates that the union campaign started
sometime in February rather than sometime in March
This is supported in part by uncontradicted testimony
that the initial union contact was toward the end of Jan
uary 1988 (Tr 160) As noted this testimonial inconsist
ency does not affect in my judgment Joyce s veracity
although it would seem that if she signed her union card
on February 29, which is a fact, it would tend to support
the fact that employees were engaged m union activities
including the signing of cards, in February 1988 Thus, I
rely on Joyce s dating of her card as the latest corn
mencement of the Union campaign On this point I
conclude that Respondent rests on a particularly weak
reed in support of his conclusion that Meredith s testimo
ny should be found incredible because of a conflict in
dating between her testimony (concerning the Meredith
White February 4 conversation) and Ray s mistaken as
sertion that the union campaign did not start until some
time in March (4) Lastly Respondent argues that there
is no suggestion that Meredith was a prominent union
member or activist (thus perhaps implying a lack of
prounion bias) and there would be no reason to believe
that Supervisor White would inquire whether the mnoc
uous Meredith was 'behind this thing I believe that
this is a pertinent observation but it rests on the assump
tion that Meredith s union activities were unknown to
Respondent in some way not apparent on the record
The particular problem however as above noted is that
I have not only found Meredith and Joyce to be truthful
and credible witnesses but whatever record testimony
there is regarding White s testimony demonstrates a lack
of veracity at least to some degree because of his im
peachment based on a prior sworn statement Further in
view of his total denial of any conversation regarding
the Union with either Ray or Meredith, were I to credit
White, I would have to conclude that, on the basis of ye
racily, both Ray and Meredith made up their stones out
of the whole cloth
As General Counsel points out Meredith is no longer
an employee of Respondent having quit possibly because
of medical reasons in late March 1988 and has nothing to
gam by her testimony either monetarily or in some way
by revenging herself upon Respondent On the other
hand Joyce Ray is a current employee of Respondent
and has everything to lose by testimony presented in full
face of her supervisor s contrary testimony Her testimo
ny is contrary to Respondent s interest She has no mon
etary gain involved here and under past Board precedent
her testimony should be seen as reliable because the wit
ness is testifying against her employment interest and
faces the nsk of Respondent s unhappiness with such tes
timony See Our Way Inc , 268 NLRB 394 402 (1983),
Georgta Rug Mdl 134 NLRB 1304, 1305 fn 2(1961)
I am unable to believe on my observation of both Ray
and Meredith that they created their respective testimo
ny concerning White s unlawful interrogations out of
their imaginations perhaps based on some inexplicable
vindictive element When their obvious credibility and
veracity on the witness stand is joined to Ray s testify
ing against her own interest and White s testimony
which was subject to a material veracity defect I unhesi
tatingly find Joyce Ray and Carol Meredith to be truth
ful witnesses
With regard to the more difficult question of whether
to credit Meredith s answer to General Counsel s map
propnate and unnecessary leading question, the above
elements nevertheless point in favor of Meredith s affirm
ative answer to General Counsel s question of whether
White s unlawful interrogation occurred on or about
February 4 1988 I find her to be credible on the point I
conclude contrary to Respondent s arguments, that a
preponderance of the credible evidence shows that on
February 4 1988 White in violation of Section 8(a)(1)
of the Act unlawfully interrogated Meredith with regard
to her union activities and that therefore Respondent
had knowledge of its employees union activities on or
ADVO SYSTEM 933
about February 4, 1988, rather than, as it asserts, not
before March 14, 1988 6
The unlawful interrogations of Joyce Ray and
Steve Burke by Supervisors White and McBrainy
(1) As above noted, I credited Joyce Ray's testimony
that White asked her, sometime in March 1988 after she
had signed her union card on February 29, if she had
been to any union meetings and what the Union prom-
ised her I credit her testimony and discredit White's de-
nials for the reasons above stated and I conclude that
consistent with the allegations of paragraph 5(1), a pre-
ponderance of the credible evidence demonstrates that
Respondent, by Supervisor White, on or about an un-
known date in March 1988, unlawfully interrogated
Joyce Ray about her union activities, in violation of Sec-
tion 8(a)(1) of the Act
(2) Joyce Ray testified that at or about the same time
of her conversation with Supervisor White, she also had
a conversation with Supervisor Michael McBrainy I
reject McBrainy's explanation that, concerned for a
period of days, he entered her office for the purpose of
eliciting what was troubling Joyce Ray and I conclude
that he entered the office for the purpose of unlawfully
interrogating her, as her testimony shows
I find that McBrainy told her that he had been "as-
signed to find out what he could about some of the
rumors about the Union that was [sic] going around "7
Burke corroborates that McBrairty asked them if they
had heard about the "rumors" and what their feelings
were about the Union I also credit Ray that she told
him that she had heard about the Union and had been to
some of the meetings and that McBrairty told them that
everybody should get both points of view I do not
credit McBrairty's explanations and his version of the
events and I conclude, crediting Joyce together with
Burke's corroboration (Tr 94), that in March 1988,
McBrairty unlawfully interrogated Ray and Burke in
6 Respondent nowhere argues that, despite White s knowledge, based
on unlawful interrogation of its employees' union activities as early as
February 4, 1988, Respondent itself had no such knowledge because the
knowledge which White acquired should not be Imputed to Respondent
The testimony of Respondent's director of Indiana branch operations,
Jose Boatman, demonstrates that Supervisor White reported to Produc-
tion Manager Bonnie Struck who, in turn, reported to Boatman Indeed,
Meredith's credited testimony is that White, on February 4, 1988, imme-
diately entered Boatman s office after illegally interrogating her (Tr
i29)
7 In dating this conversation, the rough contours of which McBrairty
admitted existed, It should be noted that McBrairty did not deny Ray's
testimony that he said that he had been "assigned to find out what he
could about some of the rumors' Since Respondent admits that it re-
coved explicit notification of the Union's organizational effort on March
14, 1988, and if McBrairty, on the other hand, was still merely checking
rumors in speaking to Ray, It would appear that this conversation oc-
curred while Respondent acknowledged only that the union organization-
al effort was in the rumor stage and therefore the conversation must have
occurred before the Union's telephone telegram to Respondent on March
14, 1988 As for McBrairty's alleged concern for Ray's despondency, I
am guided by NLRB v Rich's of Plymouth, 578 F 2d 880, 883 (1st Cm
1978), and Gordon wile Industries, 252 NLRB 563, 568 (1980) "Mhe more
imminent a representational election, the greater the presumption that
management's expression of concern for employee welfare has an imper-
missible motive"
violation of Section 8(a)(1) of the Act as alleged in para-
graph 5(b)(i) of the complaint, as amended 8
Respondent urges that Ray's testimony be discredited
because the interrogation was not made in the context of
a threat, repnsal, or promise of benefit (R Br at 25)
The Board, with court approval, does not require, for
unlawful "coercive" interrogation, that it be accompa-
nied by or made in the context of a threat of reprisal or
the promise of benefit Rather, as noted in NLRB v
Laredo Cocoa Cola Bottling Go, 613 F 2d 1338 (5th Or
1980) the employees' views with regard to unionization
may be kept to himself and his freedom of choice should
not be influenced by the employer's knowledge or suspi-
cion about those views In short, it is unnecessary, to
support a finding of' unlawful coercion in the interroga-
tion, to find that the interrogation was accompanied by
or in the midst of other unlawful conduct such as a
promise of benefit or a threat of reprisal In particular, as
the court found, supra, the interrogation is unlawful not-
withstanding that it is courteous and low-keyed instead
of boisterous, rude, and profane
In addition, Respondent urges rejection of Ray's credi-
bility because she did not accurately, in one breath, de-
scnbe where her conversation with Supervisor White
took place Her very exacting description of the area in
which the unlawful interrogation took place (Tr 34), in
my judgment, underlined and supported her credibility
rather than detracted therefrom Next, Respondent urges
that Ray's testimony was not corroborated by mechanic
David Thompson whom she admitted was nearby during
the White conversation That is true but not all such tes-
timony need be corroborated, rather, where the interro-
gation took place in full face of two employees (Joyce
Ray and Steven Burke), the General Counsel's witnesses
mutually and adequately supported each other with
regard to McBrairty's interrogation Thompson was
equally available to Respondent to rebut her testimony
on the White interrogation Further, Respondent argues
that Ray testified that there had not been a direct re-
sponse meeting for 3 years pnor to the one she attended
in March or April 1988 (R Br at 26, Tr 37-38), where-
as the record shows that there' were meetings regularly
held each month since June 1987 (Tr 273-274, R Exh
4(a)-(h), R Br at 26) The existence of such a record
does not demonstrate that Ray knew about the meetings
notwithstanding, their Occurrence Lastly, Respondent
urges rejection of Ray's testimony because her cross-ex-
amination "suggested" that she had been summoned to
attend a direct response meeting in March 1988 without
I specifically credit Burke's testimony that McBrairty asked them if
they knew anything about the union campaign and wanted to know how
they felt about It, that he told McBrairty in March 1988 that he was not
ready to tell McBrairty "exactly how I felt about It," notwithstanding
that he had been to some of the union meetings (Tr 94) Burke thus had
to admonish McBrturty to mind his own business Burke was entitled to
keep from McBrairty his views so that he could exercise a full and free
choice on whether to support the Union or not, uninfluenced by Re-
spondent's knowledge or suspicion about those views and the possible re-
action toward Burke that his views might stimulate in Respondent An
employer's inquiry designed to elicit such views is clearly unlawful and
coercive interrogation within the meaning of Sec 8(a)(1) of the Act
NLRB v Laredo Cocoa Cola Bottling Co, 613 F 2d 1338 (1980), cell
denied 449 U S 889 (1980), enfg 241 NLRB 167 (1979)
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
any forewarning whereas she signed the document in
February 1988 in which she expressed an interest in at-
tending the next two consecutive direct response meet-
ings (R Br at 26) Respondent's argument is a nonsequi-
tur she might well have expressed an interest in attend-
ing direct response meetings and yet not have been given
any forewarning of its occurrence
At bottom, my observation of McBrairty and the sub-
stance of his testimony concerning the reasons for, and
the preliminaries to, his conversation with Joyce Ray
lead me to discredit him As I watched and listened to
his testimony, I simply did not believe that he entered
the room for the purpose of inquiring into Ray's mental
status and, in the room, was thereafter met with a ques-
tion concerning the Union by Steven Burke's voluntary
statement that employees were engaged in a union drive
because employees were being treated unfairly (Tr 313-
314 ) But even if I were to consider discrediting Ray, I
was struck with the particularity and direct recollection
with which' Burke testified (Tr 94) corroborating Ray
"McBrairty asked if we knew anything about the union
campaign and wanted to know how we felt about it"
Under these circumstances, I simply do not credit that
he entered the room desiring only to inquire why Joyce
Ray appeared to have been in poor spirits over a number
of days
I credit Burke and Ray and discredit the testimony of
McBrairty I find that his conversation was coercive in-
terrogation, as above noted, violating Section 8(a)(1) of
the Act, as alleged in paragraph 5(b)(1)
The Creation and Function of the Employee
Attendance Committee
, Respondent concedes that on March 1 and 2 it con-
ducted an attitude survey in the Indianapolis branch, that
on March 3, the next day, based on the results of that
survey, Respondent recommended that its existing at-
tendance policy be reviewed by a committee (composed
of both employees and members of management) so that
the matters initiated in the attitude survey could continue
with "more specific focus on the particular areas of con-
cern" (R Br at 22) In addition, Respondent admits that
on the next day, March 4, 1988, Indianapolis Branch Di-
rector Jose Boatman announced the formation of the at-
tendance policy review committee (R Br at 22, Tr
214), and, on March 9, 1988, in a written memorandum
to employees of that date (G C Exh 3), Boatman noted
that the concerns and problems most often raised by em-
ployees in the attitude survey of March 1 and 2 were the
attendance policy (for which he announced the creation
of the attendance policy committee on March 10 with
the first meeting on March 16), employee benefits (Boat-
man assured the employees in the March 9 memorandum
that a corporate representative would appear on March
17 to explain and answer questions regarding benefits),
ventilation/air-conditioning (Boatman assured the employ-
ees that the problem would be addressed "as quickly as
possible" and that a corporate representative would be
present in the following week to inquire into Respond-
ent's air conditioning needs in the Indianapolis facility,
that a ventilation fan was en route and that air-condition-
ing should be installed by June 1, 1988), the pay matrix
(Boatman told the employees that he would review the
current pay matrix and announce his findings by April
7), and job postings (Boatman stated that all job postings
and opportunities would continue to be posted) Lastly,
he noted that the direct response meetings of the em-
ployees were to continue because employee input was es-
sential for success
With regard to the March 1 and 2, 1988 attitude
survey conducted at the Indianapolis branch, Respondent
points to the testimony of its corporate human resources
director, James Bouley, that the attitude survey is an
annual event held pursuant to Respondent's corpor-
atewide employee direct relationship program
The corporate participants in this alleged annual atti-
tude survey were James Bouley and David Feldkamp
(corporate director of field operations) In particular,
however, Respondent states that the record shows that
the annual attitude survey conducted in the Indianapolis
facility in the previous year, 1987, was also conducted in
March (R Br at 22 ) In urging this finding, Respondent
cites four places in the record encompassing certain of
the testimony of James Bouley and David Feldkamp (R
Br at 22, citing Tr 200-208, 210-211, 213, 363-364) I
have reviewed those portions of the record cited by Re-
spondent together with the balance of the record and I
find that the only reference regarding a 1987 attitude
survey occurs in the testimony of James Bouley (Tr
204), in which he was asked if he knew the "approximate
timeframe in which that attitude survey in 1987 was con-
ducted"? He answered that it was conducted "in ap-
proximately March of 1987," but noted that the 1987 at-
titude survey was conducted by James Trent who, in
1987, was corporate director of employee relations or
labor relations (Tr 204) There is no suggestion, in this
record, that either Bouley or Feldkamp participated in
the 1987 attitude survey or that they were familiar with
the records thereof which would show the particular
time of its occurrence
The record demonstrates only that another corporate
official conducted it, neither Bouley nor Feldkamp, on
this record, participated therein, and that it was conduct-
ed "approximately" in March 1987
Joyce Ray testified that she had been employed more
than 4 years by Respondent and that the first time she
had ever heard of a meeting like that was in 1985 and
that the next meeting occurred in March or April 1988
(Tr 37-38)
Respondent, however, introduced uncontested docu-
mentary evidence (R Exhs 4(a)-(h)) which demonstrat-
ed that direct response panel meetings of employees
were held on an almost monthly basis commencing June
1987 through early February 1988 In this regard, I
reject General Counsel's assertion that the hold of the at-
titude survey meeting on March 1 and 2, 1988, was the
reactivation of an otherwise dormant procedure since
1985 and was reactivated only in response to the orga-
nizing efforts of the Indianapolis employees, an unlawful
attempt to placate and buy off the employees prior to the
election (G C Br at 7)
In view of my finding, above, that Respondent, at all
material times since February 4, 1988, knew of the orga-
ADVO SYSTEM 935
nizing efforts on behalf of the Union among its employ-
ees, and my necessary finding that all of Respondent's
supervisors, and particularly Bouley, Feldkamp, and
Boatman, were untruthful in their testimony that they
did not know (and Respondent, therefore, did not know)
until March 14, 1988, that there was a union organizing
effort among its employees, I conclude that (whether or
not there was an annual attitude survey meeting held at
Indianapolis) there is no credible evidence, particularly
taking into account the testimony of James Bouley,
above, to show that the annual survey occurs in early
March or that in 1987, it occurred in early March To
that extent, Bouley's testimony, relying on hearsay, and
otherwise unproven, does not credibly show that the
1987 attitude survey was held in March Assuming, ar-
guendo, however, that it did occur sometime in March
1987, I nevertheless conclude that the March 1 and 2,
1988 attitude survey was held in response to, and be-
cause of, Respondent's discovery of union activity
among its employees
Particularly disturbing, in this regard, was Respond-
ent's sudden and immediate creation (pursuant to the atti-
tude survey findings of March 1 and 2), on the very next
day March 3, of an employee-employer committee to
review attendance policy It is clear that attendance
policy, based on Boatman's March 4 (the very next day)
speeches to all employees at shift meetings (concerning
the issues raised by employees in the attitude survey),
had attendance policy at the top of the list (G C Exh
3 )9
How to explain Respondent's expeditious response to
employee complaints over its attendance policy9 As
early as February 4, Supervisor White, in his unlawful
interrogation of Carol Meredith, knew that employees
disliked the hideous wraeups caused by attendance prob-
lems (Tr 128) And what employee is unilaterally
named to the attendance policy review committee 9 Su-
pervisor Terry Waldon nailed Carol Meredith to the
committee Meredith revealed to Supervisor White the
hideous wnteup of employee Duran—allegedly because
of an attendance problem She attended five or six meet-
ings of the attendance policy review committee com-
mencing in March 1988 (Tr 131 ) Absent other evidence
and explanation, I cannot accept Meredith's situation as
coincidental
In view of the false testimony of Respondent's wit-
nesses regarding their first knowledge of union activity
among Respondent's Indianapolis unit employees, I con-
clude that the holding of the "attitude survey" meeting
on March 1 and 2 was with full knowledge of the union
activities divulged as early as February 4, 1988, that the
holding of the meeting at that particular time (March 1
and 2) was not in response to some rule or custom that
the annual attitude survey be held only in March of each
year, rather, it was held in direct response to Respond-
ent's knowledge of union activities among its employees,
9 Joyce Ray's uncontradicted and credited testimony (Ti 36) is that in
one of his March 4 shift speeches directed to Respondent s working on a
new attendance policy Boatman told the employees that everyone was
going to like the new attendance policy Absent an allegation that such a
statement constituted the unlawful promise of a benefit, I need not pass
on the point
and that the creation of the employer-employee attend-
ance policy review committee was a direct result of and
in response to what Respondent admitted to be the pri-
mary problem exposed in its March 1 and 2 attitude
survey I further conclude that the unlawful creature
spawned by the attitude survey, the attendance policy
review committee, met throughout March and Apnl
1988, and even thereafter (Tr 131) I therefore con-
clude, in accordance with paragraph 5(g) of the com-
plaint, as amended, that in March 1988, Respondent
formed and created the employee attendance policy
review committee (in the staffing of which the employer
itself directly participated) in order to placate employees
and avoid problems directly related to employee desire
for union organization, and that, therefore, the purpose
of the creation of the attendance policy review commit-
tee, an employer-sponsored organization, was to discour-
age its employees' activities on behalf of the Union and
to frustrate union organization among its employees, all
in violation, as alleged, of Section 8(a)(1) of the Act
C Promulgation, Maintenance and Enforcement of
Alleged Rule Against Employee Conversations on
Respondent's Property
Complaint paragraphs 5(a), 5(b)(m), and 5(D) are con-
cerned with the promulgation, maintenance, and enforce-
ment of an alleged unlawful oral rule, in violation of
Section 8(a)(1) of the Act
Paragraph 5(a) alleges
On or about a date in May, unknown to the Gen-
eral Counsel, but well-known to the Respondent,
the Respondent, orally promulgated and, since that
date, has maintained the following rule for its em-
ployees because they had engaged in activities on
behalf of the Union and to prevent them from doing
so
No employee shall be allowed to talk to another
employee about any subject matter including but
not limited to Union Activities and the upcoming
NLRB election while an employee is in the facility
Paragraph 5(b)(m) alleges
On or about an unknown date between May 9
and May 13, 1988, and on May 18 and 19, 1988, at
the facility, [Respondent, acting through Michael
McBrairty] enforced against its employees, the rule
set forth in subparagraph 5(a)
Paragraph 5(d) alleges
The Respondent, at the facility, acting through
the individuals named below, on the dates set forth
opposite their respective names, enforced the illegal
promulgated rule set forth in subparagraph (a)
Terry Waldon—On an unknown date in early May,
1988, and on an unknown date between May 9 and
13, 1988
James Byrd—May 19, 1988
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bonnie Struck—May 19 1988
It is undisputed that at all material times Re
spondent has maintained general work rules (G C
Exh 2) which provide in part
The Company has in effect and will establish from
time to time reasonable work rules as it considers
necessary to provide for the orderly and efficient
conduct of its business to maintain work place
order and discipline
D Distribution on Company premises of material
of any kind or solicitation of any kind during work
ing time is prohibited 10
In his testimony as an adverse witness called by Gen
eral Counsel (Tr 23), Director of Operations Boatman
testified that prior to the May 19 election aside from the
Company s ban on solicitation the employees were not
restricted in any general way in discussing matters, even
personal matters with other employees while they were
working, at any time on company property (Tr 23)
In later cross examination by General Counsel, Boat
man admitted (Tr 280) that there is neither a written nor
unwritten Respondent policy prohibiting employees from
talking to each other
In a sworn statement given to the Board on June 20,
1988 (G C Exh 15), Boatman stated
8 There is and has been no policy—written or
unwritten regardmg employees talking to each
other Employees are allowed to talk to each other
about anything any time However soliciting on
worktime for any purpose on worktime [sic] is not
allowed
In cross examination by General Counsel at the hear
mg Boatman testified (Tr 281-282)
Q And that employees in fact are allowed to talk
to each other about anything at any time with the
exception of solicitation'?
A In the context of not interrupting their work
or staying in their general work area
Q I see But that s not what you said in this affi
davit is it
A Perhaps the question was framed different
Q But did you say that? Did you respond m that
fashion in this affidavit or not?
A As I stated, its in the affidavit
Q Show me where it is
A Number 8
Q That s paragraph 8?
A Yes-
10 General Counsel does not suggest much less allege that this rule
banning solicitation of any kind and distribution on company premises of
materials of any kind during working time is unlawful See Our Way Inc
268 NLRB 394 (1983) The reach of this rule however is limited to sohc
nation and distribution
Q In paragraph number 8 of your affidavit,
which is General Counsel s Exh No 15, it s true is
it not that nowhere in that paragraph is there refer
ence to a work area assigned work area'?
A No
Q And m fact nowhere in that paragraph is
there a reference to the interruption of another em
ployee s work?
A No
Boatman s further testimony m direct examination (Tr
217)
Q Is any and all talking allowed during working
time?
A Yes Talking is allowed
Q And what other limitations if any on talking
when employees are supposed to be working?
A We take the view that as long as the job as
signed is being completed in a timely manner, then
people can speak
Q Now does the rule allow employees to
wonder away from their machines to talk with
people away from their work stations if they are
supposed to be working?
A No, it does not allow that
Q Does this apply to talking both on business or
non business matters?
A Yes
Q In other words they can talk about anything
as long as they get the jobs done on time?
A Right And they are within their assigned
area
In support of the complaint allegations General Coun
sel adduced the testimony of several witnesses
(a) Richard Rose He testified concerning two conver
sations m May 1988 with Shift Manager Terry Waldon
(Tr 135 et seq ) Although Rose was cross examined, he
was not cross examined with regard to these conversa
tions Rose works in the shipping department and during
worktime if there was a problem with the mail, he seeks
out a quality control employee to adjust the problem
Failing his finding a quality control employee he ap
proaches machine operators or baggers to discuss the
problem with them whether for instance the skids were
too high or not or whether the skid should be shortened
After resolving the problem he ordinarily returns to the
shipping department from the machine operator (in a dif
ferent department) whom he has just consulted (Tr
147-148)
In a first conversation in May 1988, with Danna
Lester a machine operator in the production department
he noted that both he and Lester were on working time
at the time of the conversation He testified that he
looked for a quality control employee, could not find
one and spoke to Lester (who was operating a machine)
about a skid of mail that was messed up by Rose s
bagger (Tr 136-137) While he was discussing the
matter with Lester Shift Supervisor Terry Waldon ap
proached them and told Rose not to talk to the operators
that were working (Tr 137) Rose left Rose testified
ADVO SYSTEM 937
that Waldon had never said anything like that to him
before notwithstanding that Rose had spoken before to
machine operators while they were working and had
done so in the presence of supervisors (Tr 137)
In a second conversation later in May, in the middle of
the production floor, Rose again spoke with Lester Rose
was not on working time and Lester was walking to the
timeclock to punch out Supervisor Waldon approached
them while they were talking and told Rose that he
should not talk to "working people while they were on
the clock" (Tr 138) Nothing was said of Rose being
out of the shipping department Rose walked away
Danna Lester substantially corroborated Rose's testimo-
ny regarding this second conversation and testified that it
took place about 2 weeks before the May 19 election
(Tr 161)
(b) Joyce Ray A statement clerk, a position supporting
production (Tr 28), testified that part of her work duties
includes talking with other employees (Tr 44) She
weighs and verifies the mail before it leaves the plant in-
cluding verifying the correctness of the address labels
About a week before the May 19 election, Ray was talk-
ing to employees Latten and Livingston at Latten's ma-
chine during working time (Tr 38-39) Shift Supervisor
Waldon approached them and asked Ray if she was on
lunchtime When she told him she was not, he said that
"these people aren't either, so lets take our business on
down the road" (Tr 41) Prior to that time, no supervi-
sor had ever told her to stop talking during working
time notwithstanding that they had seen her, at least on
several occasions, talking to coemployees (Tr 41)
Later in the same week, in the week of the May 19
election (Tr 42), while she and other employees, includ-
ing a shipper, Tom Alford, were at the scales in the ship-
ping department, supervisor McBrairty approached
them McBrairty told them that "he was not paying us
to talk about what we were talking about" At the time,
the employees were discussing with Cathy McClain
what had occurred in the shipping department after her
return in the receiving department While Ray did not
answer McBrairty, Tom Alford said "I thought you
were paying us to talk about the mail" (Tr 43) Ray did
not recall any McBrairty response
Ray further testified that after the election of May 19,
there were no restrictions on employees talking to each
other She testified without contradiction that she talked
to other employees at work regarding nonwork subjects
and that, on occasion, supervisors joined in the conversa-
tions (Tr 44)
Lastly, Ray testified that on the election day, before
the election (Tr 48), she saw a group of antiunion em-
ployees (they wore "vote no" buttons (Tr 49)) talking
with each other while standing next to one of the em-
ployee's machines Shift Supervisor Waldon was at his
desk about 10 feet away, facing them (Tr 49-51) The
record fails to show whether the machines were then in
operation or Waldon attempted to cause the employees
to cease their talking Ray, however, testified that earlier
in the day, in her office, when Steven Burke came to
pick up his check before he started his night shift,
Burke's regular action over a period of a year (Tr 47),
Supervisor McBrairty entered with a guard and told him
that he would have to leave the premises Burke told
him that all he wanted to do was to see if his check stub
was correct but McBrairty said he would have to leave
McBrairty and the guard escorted Burke out of the
office (Tr 48) Before election day, Ray wore union
buttons (Tr 51-52) over a 2-week period, among which
was one identifying her as being on the union organizing
committee (Tr 52)
(c) Steven Burke He testified that after the election, on
election day itself, he had a parking lot conversation
with employee Leova Stenson (Tr 99-100) Production
Manager Bonnie Struck approached them and told Burke
not to discuss how he voted (Tr 100) Stensen testified
that Bonnie Struck told them that they could not stand
and discuss the election out on the property, that they
would have to leave (Tr 113) Neither Burke nor Sten-
sen replied The security guards also told them that they
had to leave and they could not stand there and talk At
this time neither had stopped any of the employees' driv-
ing into the property Neither Burke nor Stensen was on
worktime Supervisor McBrairty testified that neither at
the time of the election nor during May did Respondent
have a rule that prohibited employees from conversing
or meeting in the parking lot (Tr 157-158)
Respondent's Defenses
Respondent asserts that its policy concerning employ-
ee conversations during working time has always been
that they may talk to one another as long as they are
within their assigned areas and the conversation does not
interfere with work In support of this policy, Respond-
ent (Br 34 et seq ) notes that this policy is consistent
with the Company's general work rules (G C Exh 2),
which prohibits
Disrupting or interfering with the work of others
or the Company's operation or engaging in horse-
play of any kind
Leaving the assigned job without authorization
or lateness in returning to the assigned job from
breaks or lunch
Respondent, in particular, points to the testimony on
cross-examination of employee Danna Lester (Tr 180-
181)
Q Do you recognize that conversation can be
distracting to other people when they are supposed
to be working?
A Yes
Q You're not suggesting that there is a rule in
the Company that if you're supposed to be working,
you can talk instead of work, are you?
A No
Q If I correctly understand your testimony,
you're stating in those circumstances where conver-
sation doesn't interfere with work, employees are
allowed to talk, is that what you're saying?
A Yes
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent also observes that in all the incidents sup-
porting General Counsel's allegations, none of the em-
ployees' conversations revealed that they were discussing
the Union or the election, and in every such instance, the
employees had entered into work areas and departments
other than their own to inmate conversations with em-
ployees who were supposed to be working In this
regard, Respondent states that the above-noted Joyce
Ray-Terry Livingston conversation occurred while both
employees were on the clock and that Ray was not in
her own department "shooting the bull" with Terry Liv-
ingston (Tr 188) Livingston confirmed that his conver-
sation with Ray (and Waldon's causing it to cease) oc-
curred on election day, May 19, 1988 (Tr 187)
Similarly, on election day, May 19, 1988, Respondent
notes that Supervisor James Byrd cautioned Danna
Lester, a machine operator who had entered into a de-
partment other than her own to strike up a conversation
with Terry Livingston about car insurance and a recent
accident, that she should not be talking to other employ-
ees while they were on their job, "when they are at their
work station" (Tr 164) Prior to that time however,
Lester had never been told of any such restnction on
when employees could talk (Tr 164), and Lester had
never heard of any company rule prohibiting an employ-
ee from talking to another employee who was working
(Tr 165) After the election, employees speaking to each
other in the presence of supervisors were not usually
told to cease talking However, Lester notes that after
the election, the supervisors started to "crack down on it
a little bit more, but not usually" (Tr 165) -
Supervisor Byrd testified that he told Danna Lester to
leave, breaking up the conversation with Terry Living-
ston (Tr 354) because of the company rules prohibiting
employees from disrupting or interfering with the work
of others or engaging in horseplay
Supervisor Walden and Supervisor Byrd, for instance,
testified that the policy of their causing employees to
cease conversations during production periods when em-
ployees were away from their work areas occurred both
before and after the election and as far back as Septem-
ber 1987 (Tr 359, 371, and 377)
Discussion and Conclusions
It is conceded that Respondent opposed the union or-
ganizational efforts in 1988 and made efforts to express
its position and objections to the employees (Tr 381)
Like corporate officials Feldkamp and Bouley, Boatman
testified that his first knowledge of union activity oc-
curred on March 14 when his secretary told him of the
telegram phone call (Tr 218-219), and that prior to that
time none of his supervisors ever told him about any
union activity nor that they suspected union activity
before March 14 (Tr 219 ) I specifically discredit such
testimony and find, on the basis of Carol Meredith's
credited testimony that prior to March 1, 1988, and par-
ticularly on February 4, 1988, Supervisor White, having
unlawfully interrogated employee Meredith concerning
her union activities, went straight into Boatman's office
I infer from that credited testimony that White told
Boatman on February 4, 1988, that employees, in gener-
al, and Meredith, in particular, were engaged in union
activities
I also conclude, on the basis of Boatman's testimony,
and his prior sworn affidavit, in evidence (G C Exh 15,
which I regard as substantive evidence as well as im-
peaching material) that as of June 1988, the date of his
affidavit, there had been and was no policy—written or
unwritten—regarding employees talking to each other
At the hearing, he was asked whether, in the penod
March through the May 19 election, there was in exist-
ence any printed employer policy of employees talking to
one another while they were working Boatman asked if
General Counsel's question was directed to the solicita-
tion policy and when told that the General Counsel was
asking whether employees were restricted in any general
way on discussing matters, even personal matters with
other employees, Boatman answered "no" (Tr 23) In
this regard, I particularly note that Boatman's prior
sworn statement (G C Exh 15) is typewritten The state-
ment therein, that (1) there has been and is no policy,
written or unwritten, regarding employees talking to
each other, and that (2) employees are allowed to talk to
each other about anything, any time, is typewritten mate-
rial Boatman, however, caused to be added to his state-
ment the following handwritten statement in pen and ink
"However, soliciting on work time for any purpose on
work time [sic] is not allowed" The inference I draw
from the handwritten addition is that it was intended as a
limitation on the prior typewritten material, and that this
limitation was the sole limitation imposed on employees
talking to each other "about anything any time"
It is true, as General Counsel observes, that thereafter,
in his direct examination as a witness for Respondent,
Boatman testified that there were further limitations on
employee talking that they can talk "as long as the job
assigned is being completed in the timely manner" (Tr
217) and employees are not allowed to wander away
from their machines to talk with people away from their
work stations (Tr 217-218) Boatman could not recall
that such a policy was ever announced to employees (Tr
275-276), but stated that that was, in fact, Respondent's
policy because it appears in the work rules (Tr 276-
277 )
Boatman is the chief supervisor over all operations af-
fecting production in the Indianapolis facility He has
been employed in that capacity since February 1986 (Tr
17) and, as chief supervisor in charge of operations in the
facility, is the superior Supervisor of supervisors Struck,
McBrairty, White, Walden, Mattingly, and Byrd I con-
clude that he was and is fully familiar with Respondent's
rules and that he was familiar with Respondent's rules at
the time he gave his sworn statement to the Board on
time 20, 1988 (G C Exh 15) He was also familiar with
the rules in responding to General Counsel's early ques-
tions when examined as an adverse witness, above I con-
clude, consistent with Boatman's sworn statement and his
testimony given to the General Counsel, that there was
no rule whatsoever restricting employees from talking to
each other, as he said, "about anything any time" I con-
clude further, as Respondent's brief indicates, the "no-
solicitation/no-distribution" rule has no application in
ADVO SYSTEM 939
this case As a prima facie matter, Respondent's preelec-
tion interference with employees talking, whether in or
out of their workplace, whether on or off the clock, was
dictated by the attempt to interfere with conversations
which might include union matters and the voting in the
forthcoming election This interference became manifest
only in or about May 1988, within a month of the elec-
tion
I discount Boatman's testimony, and the testimony of
Respondent's other witnesses, indicating that Respond-
ent's general work rules were the prohibitions on which
they based their interference with employee conversa-
tions In the first place, Boatman, with full opportunity
to rely on the existence of the rules both in his original
testimony and in his pretnal sworn statement, could only
stress the existence of the no-solicitation rule as a limita-
tion on the general ability of all employees to speak on
any subject at any time There is no reference in this
sworn statement or in his testimony on any formal limita-
tions such as working time, own work area, and nonin-
terference with other employees I therefore discount the
testimony by Boatman and the other supervisors that the
work rules (the work rules admittedly preexisted the
filing of the Apnl 11 petition) were actually enforced
pnor to the filing of the petition, or interpreted with the
additional limitations as testified to at the hearing
In the second place, there is the question of what Re-
spondent's actual practice was in interpreting the work
rules which allegedly prohibited employee conversations
during worktime and outside their work areas There is
no question, for instance, that as a matter of practice,
employees leave their work stations as a matter of their
official duties in order to consult with other employees
When Supervisor McBrairty interrupted Ray's conversa-
tion with coemployees, in which the discussion con-
cerned new developments in the shipping department
(Tr 43), one of the participants in the conversation, Tom
Alford, answered McBrairty's statement ("he was not
paying us to talk about what we were talking about," Tr
42) by stating "I thought you were paying us to talk
about the mail" There is no record statement of what
McBrairty told them but if his interference with the con-
versation interfered with the work processes of Respond-
ent's employees it should have been noted The inference
to be drawn here, however, is that Respondent supervi-
sors were intent on interfering with employee conversa-
tions, generally, regardless of whether they were work-
related The same result occurred when Richard Rose
left his work area and approached the production area to
speak to Danna Lester concerning work related ques-
tions (Tr 136-137) This did not prevent Supervisor
Terry Waldon from causing them to cease their work-re-
lated conversation with the admonition that he did not
want employees to talk to operators who were working
(Tr 137) But it was part of Rose's regular duties to first
attempt to seek out a quality control employee and then
to go directly to the machine operator in order to avoid
work interruptions in his mail delivery function
In short, I conclude that while General Counsel has
technically failed to prove the oral promulgation of a
"rule," there can be little doubt that during May 1988,
Respondent, by its supervisors, engaged in a new con-
certed policy and practice (which is the equivalent of
acting under a "rule") of interfering indiscriminately
with employees' talking to each other Whether the
work was on the clock, off the clock, work-related, or
otherwise was a matter of indifference to them Respond-
ent's supervisors sought to break up employees' speaking
in Respondent's facility when they were possibly talking
about the Union or the election General Counsel's wit-
nesses testified, without exception, that there was no
known preexisting rule in any way restricting their con-
versations nor was there any policy or practice restrict-
ing their conversations while at work or dunng work-
time On the contrary, from time to time pnor to the
sudden inauguration of Respondent's May 1988 policy
and practice to interfere with such conversations, the su-
pervisors themselves joined in such conversations I
therefore reject, as above noted, any suggestion that the
work rules, though in existence, were thought by Re-
spondent to be authority, prior to the filing of the peti-
tion, on which they actually interfered with or caused
employees to cease conversations on the work floor The
invocation of the Respondent's work rules at the hearing,
as a basis for such interference, is inconsistent with the
testimony and pretrial statement of its chief operating of-
ficer, Jose Boatman The testimony at the hearing that
the work rules formed the basis of such interference was
a late invention for purposes of the hearing and I find it
to be pretextual in actual application
Employees employed 4 years like Joyce Ray, never
heard of any rule restricting employee conversation If
such a rule, as Respondent's supervisOrs testified, had
been enforced for any period of time antedating the
filing of the petition, surely employees would not only
have heard of such a rule but would have felt its en-
forcement While it is clear that Respondent would
suffer no employee conduct which would disrupt the
work of that employee or of others, whether in conver-
sations or otherwise (R Br at 37), there is evidence on
the face of this record, by a preponderance of the credi-
ble evidence, that Respondent did not believe that em-
ployee conversations, whether on or off the work floor,
whether on the clock or off the clock, whether in a par-
ticular employee's work area or otherwise, was sufficient
by grave interference with production as to "disrupt the
work of others" (Tr 37) Indeed, as Supervisor
McBrairty testified, his only concern with regard to em-
ployees talking to each other was that the conversation
occur in a safe place (Tr 316) Nothing of being on or
off the clock or in a different work area
I therefore conclude, consistent with the allegations of
the complaint, that in of May 1988, Respondent promul-
gated, maintained, and enforced a policy or practice for-
bidding its employees to talk with each other about any
subject matter, including but not limited to union activi-
ties and the upcoming NLRB election while the employ-
ee was in the facility, and that the promulgation, mainte-
nance, and enforcement of that policy and practice, a
concerted movement among its supervisors, including
Waldon, Byrd, Struck, Boatman and McBrairty where
enforcement occurred during May 1988, violated Section
8(a)(1) of the Act, as alleged
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Alleged Threat to Withhold Pay Raises
In paragraph 5(b)(n) General Counsel alleges that Re-
spondent, acting through Michael McBrairty, on or
about May 12, 1988, in violation of Section 8(a)(1) of the
Act, threatened to withhold the upcoming raises of its
employees if they selected the Union as their collective-
bargaining representative
Paragraph 5(c) On or about an unknown date in May
1988, the Respondent acting through Jose Boatman, at
the facility, threatened its employees with the withhold-
ing of their raises if they selected the Union as their col-
lective-bargaining representative In support of these alle-
gations, General Counsel relies solely on the testimony
of employee Richard Rose
Employee Rose testified with regard to two conversa-
tions concerning Respondent allegedly withholding pay
raises the first occurred in May 1988, at a shift meeting
addressed by Supervisor Jose Boatman Rose testified
that his own pay raise was scheduled for the last week in
May 1988 and that this was not a general pay raise (Tr
140) An employee at the shift meeting asked Boatman if
the election would affect everybody's pay raises (Tr
140, 149) Rose further testified that Boatman answered
that if there was a vote in which the Union succeeded
("a yes vote") (Tr 140), the raises would be "frozen
pending the negotiations of the election [sic] (Tr 141)
He also testified that the employee asked whether the
election was going to affect our raises "on schedule"
(Tr 149)
Boatman testified that this unknown employee, in May
before the election, at the shift meeting, asked "If the
Union would get in, what would happen to our [sic] or
would I get my pay increase" (Tr 261) Boatman testi-
fied that he answered the question by saying that "under
those circumstances, everything would be negotiable"
He denied telling employees in that speech that employ-
ees would not get scheduled wage increases (Tr 261)
Thereafter, about a week before the election (Tr 138),
employee Rose saw Supervisor McBrairty walking
across the production floor and caught up with him to
speak with him He told McBrairty that his pay raise was
due at the end of the month and asked him if the election
would affect his raise (Tr 139) Rose said that
McBrairty told him that "it is depending on the out-
come of the election If a yes vote is received we'll
have to negotiate it And if its a no vote, you'll get your
raise on schedule" McBrairty denied any such conversa-
tion with Rose
The Board rule is that if a wage increase is scheduled
to take effect at a particular time (in this case, Rose's
raise was due at the end of May 1988 presumably follow-
ing the election) and if, at that time, a question concern-
ing representation is pending, the employer, in the face
of the actually scheduled wage increase, would be obli-
gated to grant the increase This result is in accordance
with the familiar principle that "an employer, in deciding
whether to grant benefits while the representation elec-
tion is pending should decide that question as it would if
a union were not in the picture" "Thus, by operation of
law [the employer], in such a case, would have been ob-
ligated to grant the increase at that time" Arrow Elastic
Corp. 230 NLRB 110, 113 (1977), enfd 573 F 2d 702 (1st
Cir 1978) Applying the above bargaining rule to the in-
stant facts concerning an oral statement of Respondent's
policy, it is unnecessary to decide the credibility question
as to whether McBrairty had such a conversation with
Rose, and whether, in such a conversation, he told Rose
that a vote in favor of the Union would result in the ne-
gotiation of the pay raises whereas a vote against the
Union "you'll get your raise on schedule" (Tr 139)
It is unnecessary to decide the above credibility be-
cause, accepting Boatman's testimony that he answered
the unnamed employee's question at the shift meeting in
May 1988 (whether he would get a pay increase if the
Union got in) that "under those circumstances, every-
thing would be negotiable," such an answer is inconsist-
ent with the above rule Everything is not negotiable
The fact that Boatman denied telling employees that
scheduled pay increases would not be received does not
alter the fact that he told the employees only (with no
explanation or exception) that "that everything would be
negotiable" As noted in Arrow Elastic Corp, supra, ev-
erything is not negotiable The question should have
been decided as if the Union were not in the picture A
legally correct answer by Boatman would have been that
if the pay increase that the employee was talking about
were actually scheduled the employee would receive the
pay increase Absent such a precise answer, Boatman
should have answered that Respondent would be guided
by the principle that the granting of benefits would be
decided as if the Union were not in the picture with the
pending election Even this more general answer would
have been satisfactory To answer the question, however,
that "everything is negotiable," reasonably leaves in the
minds of the employees (who are not law professors or
grammarians) that even scheduled pay increases would be
"negotiable" I conclude, therefore, that crediting Boat-
man's version rather than Rose's version (raises would be
frozen pending negotiations), that Boatman's statement,
whether a threat or merely a coercive statement tending
to interfere with Section 7 rights of the shift employees,
under Arrow Elastic Corp, violated Section 8(a)(1) of the
Act
CONCLUSIONS OF LAW
1 By coercively interrogating employees Meredith,
Ray, and Burke on February 4, 1988, and in March 1988
concerning the employees' membership in, sympathy for,
and support of Graphic Communications Local 17M,
Graphics Communications International Union (the
Union), a labor organization, Respondent violated Sec-
tion 8(a)(1) of the Act
2 Having acquired knowledge of its employees union
sympathies and activities on February 4, 1988, by con-
ducting an employee attitude survey on March 1 and 2,
1988, at the Indianapolis branch, by recommending, on
March 3, 1988, that existing attendance policy be re-
viewed by a committee composed of employees and
members of management, by announcing, on March 4,
1988, the formation of the attendance policy review
committee and by staffing and supporting the committee
and its continued existence, meetings and functioning
through April, May, and June 1988, and, on March 9,
ADVO SYSTEM

941
1988, by advising employees that it would thereafter
review and/or ameliorate its attendance policy, employ-
ee benefits, plant ventilation and air-conditioning, pay
rates, and job postings, all for the purpose of impeding
and interfering with employees' membership in, support
of, and sympathy for the Union, Respondent violated
Section 8(a)(1) of the Act
3 By promulgating, maintaining, and enforcing, com-
mencing in May 1988, a policy and practice of interfer-
ing with employee conversations in Respondent's Indian-
apolis facility, which policy and practice was designed to
interfere, inter aim, with employees' conversations con-
cerning their membership in, support of, and sympathy
for the Union, Respondent thereby violated Section
8(a)(1) of the Act
4 By telling employees who have scheduled pay
raises, in May 1988, that in the event the Union won the
election, their pay raises would become "negotiable,"
Respondent thereby unlawfully coerced employees with
regard to their membership in, sympathy for, and sup-
port of the Union prior to an election and thereby violat-
ed Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act and they have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act The affirmative obligations will include Re-
spondent's posting of a notice While I shall not recom-
mend that any employee benefits unlawfully conferred
be withdrawn, I shall recommend that such acts, and like
or related conduct, be restrained .
I have concluded that Respondent's attitude survey of
March 1 and 2, its creation of the employer-employee at-
tendance policy review committee, and its review of
benefits, pay rates, air-conditioning systems, job postings,
and attendance policy, commencing in March, occurred
not only in March, but in April, May, and June and
therefore within the "critical period" following the April
11, 1988 filing of the Union's election petition for certifi-
cation Thus, as above noted, meetings of the attendance
policy review committee occurred in April, May, and
June 1988, long after its unlawful creation by Respond-
ent in early March 1988 Respondent's other unfair labor
practices, its coercive statements with regard to even
scheduled pay raises being "negotiable" in the event the
Union won the election which statement was made in
May 1988, its promulgation, maintenance, and enforce-
ment of a policy and practice of interfering with Indian-
apolis unit employees' conversations, designed, inter aim,
to interfere with their conversations concerning support
for, sympathy with and membership in the Union, oc-
curred in May 1988, within the Ideal Electric penod (134
NLRB 1275), and these unfair labor practices, it was
agreed, also parallel objections to the election filed by
the Union In view of these unfair labor practices and
objections coming within the "critical period" following
the filing of the Union's petition of a certification and oc-
curring before the May 19 election, I conclude that these
unfair labor practices were widely disseminated and may
well have affected employee sentiment in the period
before the election I shall therefore recommend to the
Board that the election in Case 25-RC-8570 be set aside
and a second election be held when the Regional Direc-
tor decides that the effects of the unfair labor practices
have been remedied and a lawful election may be held
Under the above findings and conclusions, that Re-
spondent engaged in widely disseminated unfair labor
practices during the critical period, it is unnecessary to
reach or decide the Union's objection that Respondent
surveilled and intimidated employees dunng the casting
of ballots
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Advo System, Inc , Indianapolis, In-
diana, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees, holding atti-
tude surveys among its employees for the purpose of
interfering with employee's activities in and on behalf of
Graphic Communications Local 17M, Graphics Commu-
nications International Union (the Union), a labor organi-
zation, creating, staffing, and supporting, an attendance
policy review committee or any other employer-employ-
ee organization, or agreeing to review or ameliorate its
employees' terms and conditions of employment, for the
purpose of interfering with and undermining its employ-
ees' membership in, sympathy for, and activities on
behalf of the Union, or any other labor organization, tell-
ing employees with scheduled pay raises that, in the
event of a union victory in a forthcoming election, their
pay raises would be "negotiable", or promulgating, main-
taining, and enforcing a policy or practice of interfering
with employee conversations designed, inter alia, to
interfere with employees' conversations concerning their
membership in, support of, and sympathy for the Union
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its Indianapolis, Indiana place of business
copies of the attached notice marked "Appendix "12
" 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
IS 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"
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Copies of the notice, on forms provided by the Regional
Director for Region 25, after being signed by the Re-
spondent's authonzed representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent 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
IT IS FURTHER ORDERED that
(1) The election of May 19, 1988, in Case 25-RC-8570
be, and is, set aside
(2) Case 25-RC-8570 shall be severed and remanded
to the Regional Director for Region 25, National Labor
Relations Board, for the purpose of holding a new elec-
tion as soon as feasible, under the supervision of the
aforesaid Regional Director, at such time and place as he
deems circumstances afford a free choice of a bargaining
representative in the appropriate unit described in the
aforesaid Acting Regional Director's report on objec-
tions, dated August 3, 1988