Baker Brush Co.

National Labor Relations Board - Board Decisions

Nov 17, 1977

233 N.L.R.B. 561 (N.L.R.B. 1977)

BAKER BRUSH CO., INC.
Baker Brush Co., Inc. and International Leather
Goods, Plastics & Novelty Workers' Union, AFL-
CIO. Cases 15-CA-5909 and 15-RC-5820
November 17, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On February 10, 1977, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs, and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
1. We find merit in the exceptions filed by the
General Counsel and Charging Party to the Adminis-
trative Law Judge's conclusion that Respondent did
not violate Section 8(a)(1) by announcing a future
wage increase during the final week of the election
campaign.
The record reveals the following sequence of
events:
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Acting Regional
Director on November 28, 1975,1 an election was
held on December 12 in a unit of Respondent's
production and maintenance employees. During the
week immediately preceding the election, Respon-
dent distributed to employees four leaflets which, in
addition to containing antiunion comments, prom-
ised that wage increases would be given them in the
very near future. The December 8 leaflet stated, in
part:
As you all know, the Federal minimum wage
will go up in January of 1976. We have long
planned to put a general increase into effect at
that time. This decision was made before the
union began its campaign here in Farmerville. It
will not be changed by your vote in this election.
However, if the union wins the election, the
Unless otherwise indicated, all dates hereinafter are in the period
November 1975 through January 1976.
2 When discussing this issue at several points in his Decision, the
Administrative Law Judge erroneously characterized the complaint herein
as alleging that Respondent promised its employees a wage increase
233 NLRB No. 61
discretionary increase for employees who are now
at or above the minimum wage may have to be
delayed until we can reach an agreement with the
union on economic issues. It is our intention that
we would offer the same general increase in
January whether or not the union wins the
election.
The leaflet distributed I day before the election
concluded by stating as follows:
Similarly, pay increases are scheduled for the
near future regardless of the results of the
election. Furthermore, we commit ourselves to
follow the policy of increasing our employees' pay
as the productivity and efficiency of this plant
improves. It is our intention that the size and
timing of future increases will not be influenced
by the outcome of this election; we will grant the
maximum increases that are reasonable, whether
or not the union wins the election. However, to be
perfectly honest, we would be prohibited from
unilaterally granting discretionary increases if the
union won the election. We would not then be
able to grant any discretionary increases until an
agreement is reached. This might take months.
Sometimes such bargaining has taken over a year.
These are the facts about future pay increases. Do
not be misled by rumors.
The Union lost the election. Then, on January I-
consistent with the promises it had made-Respon-
dent effectuated an overall pay increase which raised
to the new Federal minimum wage all employees
who had been receiving a lesser amount and raised to
a higher wage level the other employees who were
already at or above that minimum wage rate.
The record establishes, and the Administrative
Law Judge found, that the wage increases which
Respondent promised and later granted were a
continuation of a pattern of previous wage increases
granted annually in December over the past 30 years.
Thus, in agreement with the Administrative Law
Judge, we find that Respondent's actual grant of the
increase was lawful. Apart from this, however, a
clearly separate and distinct issue is raised by the
timing and content of Respondent's advance an-
nouncements thereof. 2
As to the factor of timing, in previous years
Respondent made no advance announcements con-
contingent upon the Union's success in the election. We hereby correct that
error. For, in fact, the complaint alleges that Respondent promised its
employees in writing that they would receive a wage increase if the Union
was unsuccessful.
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning increases to be granted its Farmerville
employees.3 Notwithstanding this previous course of
conduct, during the final week of the ongoing
organizational campaign in 1975 Respondent circu-
lated the four separate leaflets announcing the
upcoming pay increases. Plant Manager John Arena
admitted that these were, at least in part, motivated
by the Union's election campaign. Thus, it is clear
that, even though the wage increase decision itself
was lawfully motivated, Respondent nevertheless
used the advance announcement thereof as a
campaign tool to undermine employee support for
the Union.
With respect to the content of Respondent's
announcements, we find the message to be clear.
Employees paid below the new Federal minimum
would be raised by January 1, as the law required.
Those already receiving pay equal to, or greater than,
the new minimum would get their wage increase at
the same time-but only if the Union lost the
election. If the Union were to win, their raises would
not take effect until Respondent and the Union
reached agreement-and that could take from
"months" to "over a year." Thus, in substance,
Respondent promised a wage increase in the immedi-
ate future, but-except as required by the Federal
wage law-threatened not to implement such in-
crease for an extended period of time in the event of
a union victory. When the Union lost the election,
Respondent-complying with the terms of its elec-
tion campaign promise-granted January 1 pay
raises to all employees.
In finding that Respondent's wage increase an-
nouncements did not violate the Act, the Administra-
tive Law Judge relied on the premise that Respon-
dent's assertions (in its campaign leaflets) that-if the
Union won the election-it would be prohibited
from unilaterally granting a "discretionary in-
crease" 4 was a correct interpretation of Section
8(a)(5) of the Act. Had the January I discretionary
increase not been promised in advance, we would
have no difficulty in accepting, as a general proposi-
tion, the Administrative Law Judge's premise. But,
here, first the increase was promised and then its
implementation was conditioned upon the Union's
loss of the election.
Contrary to the Administrative Law Judge, we find
that the discretionary increase promised for imple-
mentation on or about January I was, by reason of
that promise, an existing condition of employment
3 The Farmerville plant had been in operation since early 1973. At other
plants operated by Respondent. announcements of forthcoming wage
increases have not been made dunng the past 15 years.
4 We are satisfied from the record, including the exhibits setting forth the
text of Respondent's election campaign leaflets, that the term "discretionary
increase" refers to the portion of the promised wage increase which is in
excess of what Respondent must pay to avoid violation of the Federal
minimum wage laws.
which Respondent-had the Union been certified-
would have been legally obligated to continue and
could not alter without consulting the Union. Liberty
Telephone & Communications, Inc., and Century
Telephone Enterprises, Inc., 204 NLRB 317 (1973).5
Furthermore, as found by the Administrative Law
Judge, the annual granting of similar wage increases
had been a customary practice of Respondent
through the years and, as such, was clearly a
condition of employment on that basis as well.
Accordingly, Respondent would not have been
legally restrained from granting the promised in-
crease if the Union had been certified, but rather
would have had a legal obligation to pay it. This
obligation arose both from Respondent's explicit
promises made during the election campaign and the
promise implicit by reason of Respondent's long-
standing practice. Leroy W. Craw, Jr., et al., d/b/a
Craw & Son, 227 NLRB 601 (1976). The Board, with
Court approval, has consistently held that an
employer who withholds pay raises from employees
who have chosen a union as their, bargaining
representative violates the Act if the employees
otherwise would have been granted the raises in the
normal course of the employer's business. Florida
Steel Corporation, 220 NLRB 1201 (1975), enfd. 538
F.2d 324 (C.A. 4, 1976).
Moreover, the natural effect of Respondent's
campaign announcements was to convince employ-
ees that they did not need a union in order to obtain
wage increases, and, by shifting to the Union the
onus for not implementing the promised wage
increases when scheduled, Respondent sought to
disparage the Union by conveying the impression
that the Union stood in the way of the employees'
prompt receipt of a higher wage. Thus, Respondent
held out to the employees a benefit which, but for the
Union, they would receive on or about January 1.
This conduct was clearly designed to undermine, and
discourage support for, the Union. Accordingly, we
find that Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act and,
thereby, violated Section 8(a)(1).6
2. Both the General Counsel and the Charging
Party have excepted to the Administrative Law
Judge's failure to find that Respondent's gift of
Thanksgiving turkeys to its employees was also
violative of the Act and constituted further grounds
5 See also Armstrong Cork Company v. N.L.R.B., 211 F.2d 843 (C.A. 5.
1954).
6 See Planters Peanuts, a Division of Standard Brands, Inc., 230 NLRB
1174 (1977); American Paper & Supply Company, Container Division, 159
NLRB 1243(1966).
562
BAKER BRUSH CO., INC.
for setting aside the election. We find merit in their
exceptions.7
It is undisputed that, during its first 2 years of
operation at its Farmerville plant (1973 and 1974),
Respondent gave no holiday benefits, such as
turkeys, to its employees at either Thanksgiving or
Christmas. Robert Lawson, a subordinate manager
at Farmerville, testified that, following a supervisory
meeting in late December 1974 at which he learned
of the employees' dissatisfaction about receiving no
holiday benefits, he sent a memorandum to the
corporate president in New York stating that the
employees should be given something on the two
holidays the next year. No action, however, was
taken to implement this proposal until October
1975-after the organizational campaign had be-
gun-when Plant Manager Arena asked an employee
with poultry business connections about obtaining
turkeys, and then placed a telephone order for them.
On November 24, in the midst of the organizational
campaign, and after the petition had been filed, the
turkeys were distributed to the employees. Respon-
dent had made no advance announcement in this
regard.
Respondent, however, gave its employees no gifts
whatsoever for Christmas-the election having been
held 13 days prior thereto. This is of particular
significance, as Respondent's sole basis for maintain-
ing that its decision to give the turkeys predated the
union organizational campaign was its December
1974 memo which advocated, with equal emphasis,
that gifts be given for both Thanksgiving and
Christmas.
The record contains no evidence as to whether
Respondent's corporate president ever responded to
Lawson's December 1977 memorandum and does
not establish that Farmerville officials had authority
to grant such benefits solely on their own initiative.
Moreover, despite Respondent's asserted desire-in
December 1974--to counter employee dissatisfaction
with the past failure to grant holiday gifts, employees
were not informed of management's holiday gift
proposal or of any decision to implement it until
after the Union's organizational campaign had
commenced some 9 months later.
On the basis of the above facts, we find that
Respondent's gift of Thanksgiving turkeys to its
employees was violative of Section 8(a)(1). While in
December of the previous year, Respondent's Farm-
erville management set forth a proposal to grant
future Thanksgiving and Christmas gifts, it did
nothing to inform the employees of this, nor did it
take any action to effectuate it until the Union's
organizing efforts were in full swing. And, when it
I Member Murphy would adopt the Administrative Law Judge's
rationale and conclusion that the gift of turkeys at Thanksgiving was not
did initiate this plan, it did so through an employee
from whom, as would be expected, word of the
Company's generosity spread among the other
employees. The timing of Respondent's actions again
clearly suggests that it was motivated by a desire to
boost the Company's image and to undermine the
Union's strength among the employees. Further,
Respondent's failure, following its election victory, to
institute its similarly firm commitment concerning a
Christmas gift lends additional support to our
conclusion that the gifts were but another campaign
device designed to diminish Petitioner's support and
interfere with the employees' Section 7 rights.
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405,
409 (1964). Accordingly, we find that Respondent's
gift of turkeys to its employees during the election
campaign violated Section 8(aXl) of the Act.
3. Petitioner's objections to the election encom-
pass the subject matter of the violations found herein
and, accordingly, as such conduct occurred during
the relevant period between the filing of the petition
and the holding of the election, we conclude that
those unfair labor practices interfered with the
employees' free choice in the election. Therefore, we
shall direct that the election herein be set aside and
that the Regional Director shall hold a second
election to determine the question of representation
when he deems that a fair election can be held.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8(a)(1) of the Act, we shall order it to cease
and desist therefrom.
CONCLUSIONS OF LAW
1. Baker Brush Co., Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Leather Goods, Plastics & Nov-
elty Workers' Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By announcing an imminent increase during
the critical preelection period under circumstances
calculated to influence employees to reject union
representation, and by threatening that the an-
nounced wage increase might be delayed or withheld
for an extended period of time if employees selected
the above-named Union as their representative,
Respondent violated Section 8(a)(I) of the Act.
4. By giving its employees Thanksgiving turkeys
in order to diminish Petitioner's support among its
violative of the Act under the circumstances of this case and, hence, would
dismiss that allegation of the complaint.
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, Respondent violated Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
6. The following employees constitute an appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(c) of the Act:
All production, maintenance, shipping and re-
ceiving employees employed at Employer's Ward
Chapel Road, Farmerville, Louisiana, location,
excluding all office clerical employees, foremen,
watchmen, guards, and supervisors as defined in
the Act, as amended.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Baker Brush Co., Inc., Farmerville, Louisiana, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Announcing wage increases under circum-
stances calculated to undermine employee support
for the International Leather Goods, Plastics &
Novelty Workers' Union, AFL-CIO, or any other
labor organization.
(b) Threatening that a promised wage increase
might be delayed or withheld for an extended period
of time to discourage support for a labor organiza-
tion.
(c) Giving Thanksgiving turkeys to its employees in
order to undermine their support for said Union or
any other labor organization.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Post at its premises in Farmerville, Louisiana,
copies of the attached notice marked "Appendix." s
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the election held on
December 12, 1975, in Case 15-RC-5820 be, and it
hereby is, set aside, and that said case be remanded
to the Regional Director for Region 15 for purpose of
conducting a new election.
[Direction of Second Election and Excelsior fn.
omitted from publication.]
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT announce wage increases under
circumstances calculated to undermine your
support for the International Leather Goods,
Plastics & Novelty Workers' Union, AFL-CIO,
or any other labor organization.
WE WILL NOT threaten you that promised wage
increases may be delayed or withheld for an
extended period of time in order to discourage
your support for the above-named Union or any
other labor organization.
WE WILL NOT give Thanksgiving turkeys to our
employees in order to undermine their support for
the above-named Union or any other labor
organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
BAKER BRUSH Co., INC.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge:
Upon a charge filed on October 20, 1975, by International
Leather Goods, Plastics & Novelty Workers' Union, AFL-
CIO, hereinafter referred to as the Union, the General
Counsel for the National Labor Relations Board, hereinaf-
ter referred to as the Board, issued a complaint on
December 3, 1975, against Baker Brush Co., Inc., hereinaf-
ter referred to as the Respondent or Employer, alleging as
violative of Section 8(a)( ) of the National Labor Relations
Act, certain conduct attributed to company supervisors
between September 17 and 23, 1975, and, as violative of
Section 8(a)(3) of the Act, the discharge of employee
Sandra Smith on October 9, 1975. Thereafter, on March 12,
1976, prior to the hearing herein, the complaint was
amended to include additional Section 8 (a)(1) allegations
564
BAKER BRUSH CO., INC.
concerning specific company conduct in November and
early December 1975. A timely answer to the complaint
was subsequently filed by the Respondent denying the
commission of any unfair labor practices.
In Case 15-RC-5820, pursuant to a petition filed by the
Petitioner on November 21, 1975, and a Stipulation for
Certification Upon Consent Election approved on Novem-
ber 28, 1975, by the Acting Regional Director for Region
15, an election was held on December 12, 1975, among the
production and maintenance employees employed by the
Employer at its Farmerville, Louisiana, plant.' Thereafter,
on December 18, 1975, the petitioning union filed timely
objections to conduct affecting the results of the election.
Subsequently, on March 15, 1976, after having conduct-
ed an investigation of the objections, the Regional Director
issued an Order, approving the withdrawal of certain
objections2 and finding that certain other objections raised
substantial and material issues which could best be
resolved after a hearing.3 Since the matters contained in
Objections 2, 7, 10, and 12, were identical to the conduct
alleged in the 8(a)(l) amendments to the outstanding
complaint, the Regional Director ordered that a hearing be
held in Case 15-RC-5820, and that it be consolidated with
the unfair labor practice hearing in Case 15-CA-5909, for
the purpose of hearing, ruling, and issuance of a decision
by an Administrative Law Judge.
Pursuant to said Order, a hearing was held in Farmer-
ville, Louisiana before me. Shortly after the opening of the
hearing, the General Counsel and Respondent entered into
an informal settlement agreement covering all substantive
8(a)(1) and (3) allegations contained in the initial com-
plaint of December 3. Thus, the hearing was limited to
conduct alleged in the amended portion of the complaint
and the specific objections to election. All parties were
represented by counsel, and were afforded full opportunity
to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues and to engage in oral
argument. Subsequent to the close of hearing, timely briefs
were submitted by counsel for all parties.
Upon the entire record in this case, and based upon my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence,
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corporation v.
N.L.R.B., 340 U.S. 474, 496 (1951)), I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Baker Brush Co., Inc., is engaged in the manufacture of
paint brushes and related businesses at its plant in
Farmerville, Louisiana. During the 12-month period
immediately preceding the issuance of complaint, the
Respondent shipped goods and/or furnished services
valued in excess of $50,000 from its Louisiana operations
directly to points located outside the State of Louisiana,
and purchased goods and/or services valued in excess of
$50,000, which goods and/or services were shipped directly
I The tally of ballots issued by the Regional Director revealed that the
Petitioner failed to receive a majonty of the votes cast.
2 Specifically withdrawn were petitioner's Objections 1, 3. 4. 5. 6, 8, 9, II.
and 13.
to it in the State of Louisiana from points located outside
the State. The parties admit, and I find, that Baker Brush
Co., Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
1I. THE LABOR ORGANIZATION INVOLVED
The parties admit, and I find, that International Leather
Goods, Plastics & Novelty Worker's Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
CONDUCT AFFECTING RESULTS OF ELECTION
A. The Issues
1. Whether, on certain occasions between November
21, 1975, the date the representation petition was filed, and
December 8, 1975, certain of Respondent supervisors
engaged in conduct violative of Section 8(a)(1) of the Act
and conduct interfering with an employee exercise of a free
and untrammeled choice in an election.
2. Whether the Respondent violated the Act or engaged
in objectionable conduct by giving its employees turkeys
on Thanksgiving.
3. Whether the Respondent unlawfully conditioned a
future wage increase upon the outcome of the election.
B. The Facts
I. Alleged 8(aXl) conversations
The Respondent commenced business at its Farmerville
facility in July 1973. The Union initiated its organizational
campaign among the Respondent's 180 employees around
September 21, 1975. 4 During the period between Novem-
ber 21 and December 9, several conversations allegedly
occurred between company supervisors and employees.
Carolyn Patterson, a wrapper and known union adherent,
testified that around 3 p.m. on Tuesday, December 9, her
supervisor and close friend, Dorothy Strickland, ap-
proached her in the repair department and asked her if she
were going to be an observer for the Union at the election.
Patterson replied that she was not, that another employee
had wanted to be the observer. Strickland allegedly told
her that she could not think of anyone else who had
worked any harder for it than she had. Patterson replied
that she was not going to tell her who the other employee
was, so she need not ask.
Strickland, whose friendship with Patterson extended to
visiting each others' home, testified that she knew that
Patterson was very active in the Union, that Patterson was
open about her union activities, and that on this occasion
during the course of the conversation Strickland did not
ask her, but stated, "I assume that you're going to be ...
one of the officials in the break room," and that Patterson
answered, no, that Myra Smith was. I credit Strickland's
slightly different version of the incident, and, under the
3 Subject to this finding are Objections 2, 7, 10, and 12.
4 All dates hereinafter set forth, unless otherwise specified. refer to 1975.
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, find that such does not constitute unlawful
interrogation.
Deborah Ann Gibson, a former employee of the
Respondent employed between October and December 10,
when she was involuntarily terminated by Plant Manager
John Arena, testified that around 3:30 p.m. on Monday,
November 24, she was called into the office to see a
telephone company representative about some telephone
calls. Upon leaving, she met Arena who asked to see her in
his office for a minute. Arena asked Gibson whether she
had signed a union card. When she replied that she did not
know what a union card looked like, Arena asked her if she
knew anybody passing out union cards. Contrary to the
fact, Gibson told him, no. Arena then assertedly asked her
how she felt about the election coming up, and she replied
that she did not feel anything about it, that she probably
would not even be there to vote. Gibson then went back to
work.
Arena emphatically denied that the conversation oc-
curred, or ever having a meeting with Gibson at any time
prior to her discharge. He also denied questioning her or
any employee concerning union activity, or at any time
threatening any employee concerning union activity.
Contrary to Gibson's testimony, Plant Foreman Mickey
Strother, who was present on the occasion of the telephone
representative's visit and conversation with Gibson, and
Deborah Taylor, Arena's secretary, both testified that the
telephone interview with Gibson occurred early in Novem-
ber, and not on November 24. Further, Strother testified
that Arena was not in his office at the time and both
Strother and Taylor testified that, upon finishing her
conversation with the telephone man, Gibson did not enter
Arena's office but, rather, accidently bumped into an office
machine against the wall and walked on through the break
room door and into the plant.
I found Strother and Taylor to be straightforward and
truthful in giving their testimony. I was unimpressed with
Gibson's demeanor, particularly on cross-examination,
and, contrary to her statement, felt there might well have
been some ill feelings toward Arena as a result of his
having fired her. I credit Arena's denial of that attributed
to him by Gibson and find that such did not occur, either
on November 24 during the "objections period" or at any
time.
Gibson testified to a second union conversation with a
supervisor, this allegedly occurred on Monday, November
24. According to Gibson, while at her machine she was
asking some girls if they knew anything about the Union.
Her supervisor, Linda Gunter, overheard her and asked her
to come to her desk, stating that she did not want to
embarrass anybody in front of other people. Gunter then
told Gibson that she had overheard her asking about the
Union and stated that she should not let John (Arena) hear
her talking about the Union, because it might cost her her
job.5 When Gibson asked why, Gunter, in referring to the
upcoming election, said: "if the Union wins ... the plant
would close down, which means a lot of people would lose
their jobs." In reply to a leading question by counsel,
S Three times thereafter on cross-examination, however, in restating her
testimony she testified that Gunter said "because it would make him mad."
I Kennedy, in his affidavit dated January 8, 1976. also placed this
Gibson further testified that Gunter asked her how she was
going to vote, adding that she did not have to tell her if she
did not want to. After first telling her it was none of her
business, Gibson told her that she probably would not vote
at all.
Gunter, when confronted with Gibson's testimony,
positively denied each statement or query attributed to her
by Gibson. Gunter, who now lives in Alaska and who left
the Respondent's employ in January 1976, impressed me
with her candor while testifying. I credit her denial of
Gibson's uncorroborated assertions.
Michael Kennedy, another former employee who also
worked under Gunter's supervision, testified that on
Tuesday or Wednesday before the December 12 election,
around 2 p.m., Gunter was taking count on the boxes.
When she approached Kennedy at his glue machine,
Kennedy opened the conversation by saying, "Well, it
looks like the election is this Friday." Gunter asked
Kennedy how he was going to vote, and Kennedy replied
that he was not going to tell anybody how he voted. Gunter
then said, "Well, you know how your wife is going to vote."
Kennedy replied that his wife votes the way she feels, and
he votes the way he feels. Gunter then followed with,
"Well, you know we're going to win," and, upon leaving,
"keep up the spirit."
Gunter categorically denied questioning Kennedy in this
regard and testified that the conversation to which he
referred took place about 2 weeks before the election,6 and
that, on this occasion, Kennedy asked her if she was going
to vote for the Union. Gunter, a little perplexed, replied,
no, that she was a supervisor and part of management, and
could not vote at all. Kennedy kind of laughed, and Gunter
took her count and left.
Based upon my confidence in Gunter as a truthful
witness and a lack of corroboration of that attributed to
her by Kennedy, I credit her version of the incident and
find no violation of the Act.
2. Conferring benefits and announcing wage
increase
a. Thanksgiving turkeys
On Thanksgiving 1973, the first year the Farmerville
plant was opened when the Employer had 15 to 18
employees, and on Thanksgiving 1974 when the plant
employed 50 to 60 employees, the Respondent did not give
turkeys to its employees. It had been a practice, however,
for many years at Respondent's New York plant to give
turkeys at Thanksgiving. Shortly after Christmas 1974,
during the course of a supervisors' meeting, it became
known that the employees were quite upset that they had
not received something from the Company for Thanksgiv-
ing or Christmas, a practice which apparently was
traditional among merchants and other companies in the
area. A decision was made at that time by two plant
managers, Robert Lawson and John Arena, that "come
1975 we were going to do something." By memorandum
dated December 31, 1974, to the Respondent's president,
conversation as 2 weeks before the election, but repudiated this on the
witness stand. Kennedy was fired by the Company on January 2. 1976.
566
BAKER BRUSH CO., INC.
Stuart Shulman, Lawson informed him that "After the bad
reaction of the employees to the fact they did (not) receive
anything for Thanksgiving or Christmas, it is most
important to moral [sic] that we give a ham or turkey for
Thanksgiving and something appropriate for Christmas
next year. The people in this area are very gift oriented and
are use to the custom of the Boss giving gifts at the
holidays."
Around the middle of October, having learned that the
family of one of his employees, Wayne Feazel, was
involved in the poultry business in El Dorado, Arkansas,
Arena asked Feazel if he could purchase some turkeys for
the Company. Feazel told Arena the name of the company
and who to get in touch with.
On October 23, Lawson placed a telephone call to El
Dorado, ordering turkeys for the Company. Subsequently.
on Friday, November 21, Lawson again called El Dorado
to firm up delivery of the turkeys for early the following
Monday morning, November 24. On Monday, 180 turkeys
were delivered to the Company and that afternoon in the
break room around 4:30 p.m. they were distributed by
Arena and Lawson to all the employees along with a
Thanksgiving card. While no announcement was made
concerning the company decision to give away turkeys,
word got around that turkeys would be given to each
employee.
Under the Supreme Court's decision in Exchange Parts7
it is an unfair labor practice for an employer to confer
economic benefits on its employees for the purpose of
inducing them to vote against the Union, and, as held by
the Court, the issue in such cases is one involving the
company's motive. As subsequently reasoned by the
Fourth Circuit in J. P. Stevens,8 the question is whether
there is substantial evidence to support a finding that the
employer's intent in granting the benefit or in timing the
announcement of the granting of the benefit was to restrict
its employees' freedom of choice by giving them cause to
infer that the benefit might be withdrawn or future benefits
withheld should they select a union to represent them.
In the case at bar, the decision to give employees turkeys
on Thanksgiving 1975 was made the prior December, well
in advance of any union activity at the Respondent's plant.
In Oxco Brush Division of Vistron Corporation,9 the Board
was confronted with a similar situation where the employer
decided in August to confer holiday pay upon employees
not previously covered. A union representation petition
was filed in October and the first notice to employees
conferring the additional holiday benefits was made the
week prior to Thanksgiving, the first holiday to which the
new policy was applicable. The Board overruled the
Union's objection, stating therein that:
It is true that the announcement was not made until
after the petition had been filed and the election
scheduled, and at a time when the election was only 3
weeks away. But it is undisputed that the decision,
which affected other plants as well, was actually made
final long before the employer had any indication of
7 N.L.RB. v. Exchange Parts Company, 375 U.S. 405 (1964).
J. P. Stevens and Companry. Inc. v N.L.R.B., 461 F.2d 490 (C.A. 4,
1972).
union interest in the plant. Moreover, the announce-
ment itself made no mention of the union or of the
pending election.
The Board has long adhered to the rule that "An
employer, in deciding whether to grant benefits while a
representation election is pending, should decide that
question as he would if the Union were not in the picture.
On the other hand, if an employer's course of action is
prompted by the union's presence, then the employer
violated the Act whether he confers benefits or withholds
them because of the union." 1
On the record herein, I find nothing to suggest a causal
connection between the Respondent's decision to give
Thanksgiving turkeys and the union activity at the plant,
nor am I able to find that the Respondent's conferral of
Thanksgiving turkeys was undertaken with the express
purpose of infringing upon the employees' freedom of
choice or was calculated to interfere with the results of the
election. I find that the evidence fails to support the
complaint allegation that the Respondent conferred bene-
fits upon its employees in an effort to induce said
employees to abandon support of the Union in violation of
Section 8(a )() of the Act.
b. Announced wage increase
The record reveals that it has been customary through
the years for Baker Brush Company to grant annual wage
increases, usually in December, to its employees who are
not covered in bargaining units, and that such practice
existed with respect to its plant in New York, its plant in St.
Paul, its two plants in Vermont, and at Farmerville during
its 2-year existence in 1973 and 1974. In 1973 the
Respondent granted an increase to its employees in
December, and in 1974 an increase was granted in three
stages.
During the first week in December 1975 a number of
Respondent's supervisors reported to Arena that they were
being questioned by employees about what their wage
status was going to be with the minimum wage change in
January. About the same time, December I, the Union
distributed a flyer to Respondent's employees raising the
matter of an increase in wages and charging the Respon-
dent with not keeping up with the cost of living. Between
December 5 and I I the Respondent circulated four notices
to its employees counteracting the union campaign propa-
ganda, and at the same time, alluding to future wage
increases. By announcement on December 5, the Respon-
dent stated in pertinent part:
We have every intention of raising your wage rates in
the very near future-whether a union represents you
or not. However, we can't continue to increase your
wage rates in the future unless we can continue to grow.
In a major way, our growth depends upon the loyalty of
our customers. Our customers depend almost exclusive-
ly upon us as the source of their paint brushes and
rollers. We need to assure them that we can continue to
9 171 NLRB 512 (1968).
io The Great Atlantic & Pacific Tea Company. Inc., 166 NLRB 27. 29. fn.
1 (1967).
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supply them regularly and without the disruptions
caused by strikes. In the event of a strike, many of our
customers would surely leave us for other suppliers.
On December 8, a second notice in part reflected that:
The Union has been stating that they can guarantee
that pay will be going up if they win the election. We
believe that this propaganda is designed to mislead you.
As you all know, the Federal minimum wage will go
up in January 1976. We have longed planned to put a
general increase into effect at that time. This decision
was made before the union began its campaign here in
Farmerville. It will not be changed by your vote in this
election. However, if the Union wins the election the
discretionary increase for employees who are now at or
above the minimum wage may have to be delayed until
we can reach an agreement with the Union on
economic issues. It is our intention that we would offer
the same general increase in January whether or not the
Union wins the election.
Several days later, on December 9, a third notice
circulated by the Respondent stated in pertinent part that:
The Union has been promising a pay increase if they
won the election. This is more union propaganda. A
pay increase is scheduled for the near future whether or
not the Union wins. The size of the increase will not be
influenced by the outcome of the election.
Again on December 11, a fourth notice contained the
following:
We have just been told that there had been rumors
spread that this plant will close down if the Union won
the election, or that pay increases would be delayed or
diminished. However, no one has been authorized to
speak for management on this important subject. Let us
set the record straight.
Similarly, pay increases are scheduled for the near
future regardless of the results of the election. Further-
more, we commit ourselves to continue to follow the
policy of increasing our employees' pay as the produc-
tivity and efficiency of this plant improves. It is our
intention that the size and timing of future increases
will not be influenced by the outcome of this election;
we will grant the maximum increases that are reason-
able, whether or not the Union wins the election.
However, to be perfectly honest, we would be prohibit-
ed from unilaterally granting discretionary increases if
the Union won the election. We will not then be able to
grant any discretionary increases until an agreement is
reached. This might take months. Sometimes such
bargaining has taken over a year. These are the facts
about future pay increases. Do not be mislead by
rumors.
The first of January, consistent with past practice, the
Respondent put the wage increase into effect, increasing all
employees to the new minimum wage, and raising all
others who were at or above the new minimum to a higher
wage level.
As alleged in the complaint, the General Counsel asserts
that "On or about December 5 and 8, 1975, Respondent, at
its Farmerville, Louisiana, facility, promised its employees
in writing a general wage increase if the Union was
successful in the election." The Respondent admits the
promise of the wage increase but denies that such was
contingent upon a union victory. As to the issue of
announcing the wage increase, the Respondent admits that,
in granting wage increases in 1973 and 1974, there had
been no formal announcement made, but, according to
Arena's credible testimony, justified the decision to
announce the 1975 increase on the twofold ground that
there had been so many questions asked by employees
concerning pay increases at that time and because the
Union had raised the issue of pay raises in connection with
its campaign propaganda. The credited testimony of both
Arena and Lawson indicates that they were commonly
aware the prior June of the necessity of a general wage in
January because the imposition of a higher minimum wage
would have the effect of placing new employees on about
the same pay level as the older, experienced employees.
The decision as to how the increase would be implemented
was made by Arena and Lawson a week or so before the
announcement, after conferring with the Company's
attorney concerning its legality.
The fact that the Respondent deemed it necessary to
issue several notices in announcing the wage increase is
explained on the face of the notices themselves. Inasmuch
as the 1975 raise appears to be but a continuation of an
existing practice, I find nothing violative of the Act in the
Respondent's announcement of a general wage increase.
As to the real question raised by the complaint allegation
of whether the Respondent's promise of an increase was
made contingent upon the Union being successful in the
election, a perusal of the announcements reveals that such
is not the case. As to a general wage increase, the
Respondent made it quite clear to its employees that such
would be forthcoming "whether a union represents you or
not," that the decision as to a general increase "will not be
changed by your vote in this election," that "It is our
intention that we would offer the same general increases in
January whether or not the Union wins the election," that
"pay increases are scheduled for the near future regardless
of the results of the election," and that "The size and
timing of future increases will not be influenced by the
outcome of this election." The sole ground upon which the
General Counsel must rely in support of his position is the
pronouncement to the effect that, "If the Union wins the
election, the discretionary increase for employees who are
at or above the minimum wage may have to be delayed
until we can reach an agreement with the Union on
economic issues," and "we would be prohibited from
unilaterally granting discretionary increases if the Union
won the election. We would not be able to grant any
discretionary increases until an agreement is reached. This
might take months. Sometimes such bargaining has taken
over a year."
In essence, what the Respondent announced to its
employees is that they would receive a general wage
568
BAKER BRUSH CO., INC.
increase whether the Union won or not, but that discretion-
ary wage increases would have to wait on an agreement
with the Union should the Union win the election. This, in
no way, may be equated to the assertion that the promise
of a general wage increase was made contingent upon the
Union winning the election. As convincingly argued by the
Respondent, the Company's statement that unilateral
discretionary wage increases could not be granted should
the Union win the election until an agreement could be
negotiated with the Union concerning wages is nothing
more than a correct interpretation of the effect of Section
8(a)(5) of the Act. Further, its statement that this could
take months and that sometimes such bargaining has taken
over a year constitutes a prediction as to what might occur
and a statement of an economic fact, both, I find, protected
under Section 8(c) of the Act.
I find that the General Counsel has failed to prove its
complaint allegation that the Respondent violated Section
8(a)(l) in announcing to its employees a general wage
increase.
IV. THE OBJECTIONS TO ELECTION
As heretofore noted, Petitioner's objections to election
before me for resolution are Objections 2, 7, 10, and 12.
Objection 2 reads:
The employer questioned employees at length in
private conversations as to the manner in which those
employees would vote at the election.
The record testimony relied on to support this objection
appears to be that of Gibson and Kennedy attributing to
Gunter such interrogation. Based upon the evidence
discussed herein relating to alleged 8(a)(1) conduct, and
specifically my adverse findings as to the credibility of
Gibson and Kennedy and for reasons expressed in finding
no unfair labor practices in this regard, I find that the
Employer did not engage in the objectional conduct
asserted, and shall recommend that Objection 2 be
dismissed.
Objection 7 reads:
The employer promised a wage increase in the
immediate future but threatened not to provide such
increase for an extended period of time, "for more than
a year," in the event of a union victory.
For reasons expressed above in finding no unfair labor
practice as to the complaint allegation in this regard, I
further find that the Employer's promise of a wage increase
contains no threat to withhold such an increase in the event
of a union victory. I shall recommend that Objection 7 be
dismissed.
Objection 10 reads:
The employer provided additional new benefits to the
employees prior to the election, including providing
free turkeys on the day before Thanksgiving-for the
first time since the opening of the plant-and promising
(and actually providing) an alaborate champagne party
in the event of the union defeat.
As to the assertions contained in Objection 10, 1 find
them to be unsupported by the evidence and without merit.
No evidence of any kind was offered in connection with
the allegation pertaining to "additional new benefits" or to
a champagne party. For reasons set forth above in finding
no unlawful conduct on the part of the Employer with
respect to providing its employees with turkeys on
Thanksgiving, I shall recommend that Objection 10 be
dismissed.
Objection 12 reads as follows:
By placing town police at positions where union
representatives distributed literature, the employer
created the false impression that union representatives
were law violators.
The record reveals that, on numerous occasions during
late November and early December, Raymond Davis and
Charles Calhoun, organizers for the Union, engaged
themselves in passing out leaflets on a narrow road next to
the Respondent's plant between 4 and 4:45 p.m., as the
shift changed. It was customary for Davis to station himself
at one end of the service road and Calhoun at the other,
and hand out leaflets to those cars that would stop as they
either arrived for work or left the plant at the end of their
shift.
On December 4, because he had received a number of
traffic complaints from employees over a period of time, as
well as a complaint from Davis himself concerning a threat
to his safety, Deputy Marshall George Cothran, on patrol
with Deputy Sheriff Robert Taylor, went out to the plant to
talk with Davis. After introducing themselves, the law
officials told Davis that they were not there to harass them
or to interfere with their business in any way, but that they
had had complaints from people to the effect that he had
stepped in front of vehicles and stopped traffic. Cothran
told Davis and Calhoun that he was under the impression
that the two parallel side roads next to the plant were
dedicated streets (town roads) and that he intended to
check with Lawson, and that if this were so, he wanted
Davis to move over there where he would have more room
to operate.
The two police officers then went into the plant and met
with the two plant managers, Lawson and Arena, and with
Horace Thompson, company attorney. Cothran explained
to Thompson and the company officials about the
complaints which he had received and indicated that he
had already talked to Davis about them. Cothran ex-
plained that the officers were not there to harass Davis and
did not want to interfere with his business. Upon learning
that the two streets were town streets and not company
property, Cothran told Thompson and Lawson that he
wanted to move Davis up there where he would have room
to walk without blocking traffic. Lawson said that this
would be fine with him as long as he stayed off company
property.
The police officers accompanied by Thompson then
went back outside and met with Davis and Calhoun.
Cothran indicated to Davis that the two roads were public
streets, and that he should move his handbilling up there,
and explained to him why they were asking him to move.
Cothran told Davis that they were merely trying to keep
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the peace and that he did not want either him or the people
at Baker Brush to be harassed. Davis told Cothran that he
wanted to hand out leaflets on 4 more specific days prior to
the election, and agreed to move from the rear of the plant
to the side of the plant where the roads were wider.
Cothran informed Davis that he would work an officer
with him on each occasion, that if they then got complaints
they would know whether they were justified or whether
somebody wasjust trying to cause problems.
The following afternoon around 4:15 p.m., Cothran, in
civilian clothes and in his civilian vehicle while off duty,
went out to the plant and worked with Davis on the west
end of the plant where the majority of the employees came
out. Another officer, Rushing, went to the east end with
Calhoun. There was no interference with traffic and
nobody bothered the union officials. When the shift change
was over, approximately 20 minutes later, Cothran talked
to Davis and informed him that, if he conducted himself in
the same way as he had that day, he did not see any reason
for them to be out there, and that the police officers would
not be back. This was the last and only time the police
officers appeared at the site of the union handbilling.
This account of the entire matter is based upon the
credited testimony of Deputy Marshall Cothran and
Deputy Sheriff Taylor, both of whom I found to be most
reliable witnesses. While Davis' version differs in some
particulars with that of the law officers, the variance I find
on crucial matters is of little moment. To the extent that
there is a conflict, however, I credit Cothran and Taylor."t
The very limited question presented is whether, on these
facts, the Employer created the false impression that the
union representatives were law violators. There is no
assertion that the Employer or the police interfered in any
way with union communications, or that the police at any
time intimidated or coerced employees or otherwise
injected themselves into election issues or union matters
generally. To uphold the Union's objection in this regard,
one must find on the credible evidence that officers
Cothran and Taylor were acting as agents for the
Employer, and that, in doing so, by their mere presence
during the handbilling on this occasion they misrepresent-
" Davis testified that during the conversation with attorney Thompson,
the two officers, and Calhoun, Thompson insinuated that the reason the
police were there was because the Company paid taxes there and he did not.
Calhoun, although present during the entire heanng, was not called upon to
ed to the employees that the union representatives were law
violators. I am not prepared to so find.
The crucial facts as established by credible evidence
reflects that Cothran, in initially approaching Davis, did so
on his own and in line of duty based upon employee
complaints that in the course of handbilling on the narrow
street Davis had blocked employees' egress from the plant
parking lot, in one instance requiring a lady to leave the
road to avoid him. After initiating the visit to the plant,
and, on his own, ascertaining that another road, just as
convenient for Davis but much wider, was a public road,
Cothran requested that Davis and Calhoun make the
change. Thereafter, on one 20-minute occasion, Cothran,
in civilian clothes and in his civilian pickup truck, and a
deputy, stationed themselves near the two union officials
while they passed out handbills. On these facts, I find
neither an agency relationship nor a factual misrepresenta-
tion. As enunciated by the Board in Hollywood Ceramics
Company, Inc., 12 "an election should be set aside only
where there has been a misrepresentation or other similar
campaign trickery, which involves a substantial departure
from the truth...." Thus, I find without merit the
Petitioner's Objection 12, and shall recommend that it be
dismissed. On the total record, I find that the Employer has
engaged in no conduct warranting the setting aside of the
election.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
i. Baker Brush Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Leather Goods, Plastics & Novelty
Workers' Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor
practices as alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
testify. Both Cothran and Taylor denied that attorney Thompson made any
such statement. I credit their denial.
12 140 NLRB 221, 224(1962).
570