Champion Pneumatic Machinery Co.

National Labor Relations Board - Board Decisions

Apr 30, 1965

152 N.L.R.B. 300 (N.L.R.B. 1965)

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to place any credence or reliance on Murphy's testimony , and find that Cara-
tenuto did not make the statements attributed to him on the occasion in question.
Upon the basis of the foregoing findings of fact, and upon the entire record, I con-
clude and find that the allegations of the complaint , that Respondent has interfered
with , restrained , and coerced its employees in the exercise of rights guaranteed by Sec-
tion 7 , thereby violating Section 8 (a) (1) of the Act, have not been sustained by a
preponderance of the credible , reliable, and probative evidence.
CONCLUSIONS OF LAW
1. Respondent , Specialty Paper Mills , Inc., is, and at all times mentioned herein
has been , engaged in commerce with the meaning of Section 2(6) and (7) of the Act.
2. United Papermakers and Paperworkers , AFL-CIO, C.L.C., is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the complaint be dismissed in
its entirety.
Champion Pneumatic Machinery Co. and Local No. 11 , Building
Service Employees ' International Union , AFL-CIO. Case No.
13-CA-6572. April 30,1965
DECISION AND ORDER
On December 23, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Decision. Thereafter, the General Counsel
filed exceptions to the Decision, with a supporting brief. The Respond-
ent filed an answering brief, and cross-exceptions with a supporting
brief. The Trial Examiner forwarded, for the Board's consideration,
Respondent's objections to the General Counsel's posthearing motion
to amend the complaint, which he had received from the Respondent
shortly after his Decision had issued.
Pursuant to the provisions of the National Labor Relations Act, as
amended, the National Labor Relation Board has delegated its powers
in connection with this case to a three member panel [Chairman
McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, objections, briefs, and the entire
152 NLRB No. 29.
CHAMPION PNEUMATIC MACHINERY CO. 301
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order Recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed.
'Three weeks after the close of the hearing, the General Counsel moved the Trial
Examiner for permission to amend the complaint to allege as independent Section 8(a) (1)
violations meetings between Respondent 's officials and representatives of its employees to
hear their grievances , and, as a result of these meetings , instituting certain changes in
working conditions . The Trial Examiner granted the motion because he was satisfied
that the requested amendments covered matters litigated at the hearing and that Respond-
ent would not be prejudiced thereby. ( He also noted the absence of any opposition by
Respondent to the motion to amend, but he was not then aware that Respondent had
already mailed its opposition .) The Trial Examiner found , nevertheless , that the allega-
tion as to the meetings on grievances ( paragraph 8(d) of the complaint ) was an attempt
to relitigate , under the guise of an independent Section 8 ( a) (1) violation , what the Gen-
eral Counsel had previously alleged to be unlawful support to an Employee Grievance
Committee in violation of Section 8(a) (2), but which was time -barred under Section 10(b).
We agree with the Trial Examiner ' s disposition as to paragraph 8(d).
As for the allegation on instituting certain changes in working conditions (para-
graph 8 ( e) of the complaint ), the Trial Examiner permitted the amendment, but then
found that as the changes were limited to the Improvement of safety conditions at the
plant, they did not constitute a violation of Section 8(a)(1). We need not pass on the
correctness of his finding , however, because we agree with the Respondent that it has
been prejudiced by its Inability to offer a defense to what is in effect a violation different
from any charged and litigated at the hearing . We therefore overrule the Trial Ex-
aminer 's approval of the General Counsel's motion to add paragraph 8(e) to the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard before Trial Examiner Frederick U. Reel at Princeton , Illinois,
on November 12, 1964,1 pursuant to a charge filed July 20, an amended charge filed
August 31, and a complaint issued September 4, presents primarily questions as to
whether Respondent violated Section 8 (a) (1) of the Act 2 by promising and granting
benefits to employees to induce them to refrain from supporting the Charging Party,
and by suggesting and assisting in the formation of, and meeting with, an employee
grievance committee.
Upon the entire record , including my observation of the witnesses , and after due
consideration of the briefs filed by General Counsel and by Respondent , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATIONS INVOLVED
Respondent , herein called the Company, an Illinois corporation engaged at Prince-
ton in the manufacture and sale of water pumps and compressors , annually ships
over $50,000 worth of products to points outside the State, and is admittedly engaged
in commerce within the meaning of Section 2(6) and (7) of the Act . The Charging
Party, herein called the Union , is a labor organization within the meaning of Section
2(5) of the Act. For reasons developed briefly below , the Employee Grievance
Committee , described below, was likewise a labor organization within the meaning of
that section.
i All dates herein refer to the year 1964
z General Counsel acknowledged at the hearing that the complaint Insofar as It alleged
a violation of Section 8(a) (2) could not be sustained within the limitations proviso of
Section 10(b), and as he did not treat the issue in his brief, I regard that allegation as
abandoned.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; the issues
In late 1963 and early 1964 the Union started an organizing campaign at the Com-
pany's plant. This led to (a) the filing on January 31, 1964, of a petition for certifi-
cation in Case No. 13-RC-9900; (b) a consent election on February 28, which the
Union lost, 44 to 41; (c) objections thereto which were timely filed and which were
sustained by the Board on June 28; and (d) the ordering of a second election, which
was scheduled for the latter part of July but was aborted by the filing on July 20 of
the original charge in this proceeding.
The charge just mentioned alleged violations of Section 8(a)(1) and (3) in that
(a) "on or about April 1, 1964 [the Company] granted a wage increase in order to
discourage Union membership and activities"; (b) "since April 1, 1964 [the Company]
has discriminatorily transferred employees to discourage Union membership and
activities"; and (c) "by these and other acts" the Company violated Section 8(a)(1)
of the Act.
Neither that charge, nor the objections to the election, filed March 6, adverted to
the Company's fostering of an employee grievance committee. In the course of
investigating that charge, however, on August 20 representatives of the Board's
Regional Office interviewed Company President Embs, who stated during the conver-
sation that such a committee was formed in March. (As appears more fully below,
Embs' recollection was faulty, and the events concerning the Committee occurred
at the end of January.) Shortly after this interview, on August 31, the Union filed
an amended charge, alleging that the Company violated Section 8(a) (1) and (2) of
the Act, (a) by granting a wage increase on or about April 1 in order to discourage
union activities; (b) by establishing a grievance committee on or about March 2 for
the same purpose; and (c) by other acts violating Section 8(a)(1). The complaint,
issued September 4, alleged violations of the Act in (a) the promising of benefits on
or about February 26 and 27; (b) the granting of benefits on or about May 1; and
(c) the sponsorship and support of the Employee Grievance Committee on or about
March 2. At the hearing, however, General Counsel amended the latter allegation
to place the violation at January 28 and 29 instead of in March.
Three weeks after the close of the hearing, and coincident with the filing of briefs,
General Counsel moved to amend paragraph VIII of the complaint, by adding two
subparagraphs, d and e.3 Thus amended, the complaint would read in pertinent part:
Since on or about March 2, 1964 [amended at the hearing to read January 28
and 29, 1964], and continuing to date,, Respondent has rendered and is rendering
unlawful aid, assistance and support to said Employee Grievance Committee
by the following acts and conduct:
(d) On or about January 28 and 29, 1964, Respondent by its officer and
agent, Max Bertram, met with representatives of its employees to hear grievances
relating to working conditions and other terms or conditions of employment.
(e) On or about the first week of February 1964, Respondent implemented
changes in working conditions and other conditions of employment which had
been suggested by the employee representatives during the meetings which were
held on January 28 and 29, 1964.
Read in conjunction with other paragraphs of the complaint, General Counsel's
"new" allegations, just quoted, are alleged to be violations of Section 8(a)(2) and
(1) of the Act.
In the absence of opposition thereto, and in reliance on Section 102.17 of the Board's
Rules and Regulations, Series 8, as amended, I grant the motion to amend the com-
plaint. The amendment covers matters litigated at the hearing, and I see no prejudice
to the Company in permitting General Counsel to allege as violations of the statute,
acts which testimony of company witnesses establishes were committed. In allowing
the amendment, however, I do not pass on the question whether the new allegations
are barred by the 6-month limitations proviso of Section 10(b). The amendment
adds two subparagraphs to paragraph VII of the complaint, and the impact of the
limitations proviso on that entire paragraph, as amended, is discussed infra.
8In his brief General Counsel states that this motion to amend is made "to insure that
Respondent may be fully informed regarding the specific conduct which the General
Counsel alleges to be unlawful and thereby have full opportunity to present its side of
the Issues . ..." The motion to amend bears the date of Friday, December 4, 1964.
Briefs were due in Washington on December 7, 1964.
CHAMPION PNEUMATIC MACHINERY CO. 303
We turn, therefore, to the three alleged violations , ( a) those growing out of the
Employee Grievance Committee in January ; (b) the alleged promise of benefit in
February; and (c) the granting of benefits in May.
B. The Employee Grievance Committee
Union organization at the Company plant had commenced at the beginning of
1964, and union literature was distributed at the plant on January 16. About that
time Company President Embs suggested to Plant Superintendent Bertram "that a
committee be established " because Embs "was unable to go around and talk to all 90
of the employees" and he "felt that having a representative group of employees to
talk would be better." Bertram testified that "there were a couple of reasons" for
forming an employee committee at that time . He emphasized that a recent rash of
industrial accidents had jeopardized the Company's insurance coverage . He further
testified that he "wanted to try to get closer to the men to find out if they had some-
thing on their mind-if we could remedy some of these safety conditions." Bertram
asked several employees if "they thought it would be a good idea if we selected a com-
mittee and meet once a month and thrash over all of our problems and some of the
conditions and not only their problems but ours, to see if we could not come to a
mutual meeting of the minds-whatever you want to call it-to discuss problems that
both they and we as management would have."
Acting on Embs' suggestion relayed by Bertram ,4 the employees selected two com-
mittees, one from the day shift and one from the night shift. Each of these com-
mittees held one meeting with management , the day shift on January 28 and the night
shift on January 29. Bertram presided at the meetings and told the employees that
if they "had any complaints or grievances this was the place to put it off [their ] chests."
At each meeting various safety problems were discussed , and the employees also
voiced complaints over the language used in the plant by Superintendent Bertram.
Some safety devices and improvements were promptly instituted . General Counsel
in his brief refers specifically to safety glasses, goggles , a guard rail , and a ventilation
fan. The Union's petition for certification was filed 2 days later, and possibly because
of that fact the Committee never met again.
I have no doubt that the Employee Grievance Committee was a labor organization
within the meaning of Section 2(5) of the Act; it was a "committee ... in which
employees participate and which exists for the purpose, in whole or in part, of dealing
with the employer concerning ... conditions of work." The Company was respon-
sible for the formation of the Committee and contributed support to it in the form of
prompt recognition . But General Counsel concedes that the violation of Section
8(a)(2) which would be inherent in these findings is outside the scope of this litiga-
tion because of the absence of a timely charge alleging a violation of that Section.
General Counsel urges that although the conduct cannot be reached under Section
8(a)(2), the same conduct violated Section 8 (a)(1) and may fairly be embraced in
the "other acts" alleged in the original charge.
It is true, of course , that the Company sponsorship and support of the committee
violated not only Section 8(a)(2) but also , "derivatively," Section 8(a)(1). Art
Metals Construction Company v. N.L.R.B., 110 F. 2d 148, 150-151 (C.A. 2);
N.L.R.B. v. Newark Morning Ledger Co., 120 F. 2d 262, 265, 267 (C.A. 3). But I
cannot read the "other acts" language of the original charge as embracing any and all
violations of Section 8(a)(2), (3 ), (4), and (5) which might have occurred within
the 6 months prior to the filing of that charge. Any such construction would all but
write the limitations provision out of the Act, as the General Counsel would have
carte blanche, once an allegation of "other acts" was included in a charge , to range
far and wide over the entire field of employer unfair labor practices. The purpose of
the limitations provision-to give an employer timely notice of the conduct alleged
to have violated the Act-would be defeated by such a construction. To be sure,
the charge is not a pleading , and the General Counsel is not limited to the precise
matters alleged therein . But the courts in sustaining the General Counsel's power to
extend his complaint beyond the allegations of the charge have insisted that the new
violations be "closely related to the violations named in the charge." N.L.R.B. v.
Dinion Coil Company, Inc., 201 F. 2d 484, 491 (C.A. 2); see also N.L.R.B. v.
Pecheur Lozenge Co., Inc., 209 F. 2d 393, 401 (C.A. 2), cert. denied 347 U.S. 953.
' One Cecil Borges , alleged to be a supervisor , also played some role in the creation of
the Committee The Company denies that Borges is a supervisor . As he engaged in
no other illegal conduct and as the conduct of Bertram is clearly attributable to the
Company, I find it unnecessary to resolve the issue as to Borges ' status.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The "close relationship" may be found where the events are closely related either in
time or in character to those alleged in the charge. But I cannot find that allegedly
illegal wage increases and allegedly illegal transfers, both allegedly occurring on
April 1, are "closely related" to the derivative 8(a)(1) violation inherent in sponsor-
ing a labor organization at the end of January.5
In the amendment to the complaint, General Counsel studiously avoided mention
of the Committee and referred only to company meetings with representatives of the
employees, and to the fruits of such meetings. In this manner, General Counsel
attempts to minimize the Section 8(a) (2) aspect of the violation and highlights the
Section 8 (a) (1) aspect which, in his judgment, is encompassed by the original charge.
The attempt is only partially successful, in that the amended paragraph commences
with a reference to unlawful support of the Committee "by the following acts," so
that the new allegations are both technically and actually aspects of illegal support.
Both at the hearing and through the amendment, however, General Counsel has
pressed his position that the Company was guilty of "independent" rather than
"derivative" violations of Section 8 (a) (1) in meeting with employee representatives
and changing working conditions as a consequence of such meetings.
I cannot find that the limitations proviso of Section 10(b) precludes the contention
that by making changes in working conditions early in February, i.e., by instituting
the new safety features, the Company violated Section 8(a)(1). The July charge
alleged an April 1 "wage increase in order to discourage union membership and
activities," and "other acts" violative of Section 8(a)(1). Such a charge could sup-
port a complaint embracing benefits other than wage increases granted within the
6 months preceding the charge. See N.L.R.B. v. Kohler Company, 220 F. 2d 3, 7
(C.A. 7); Stokeley Foods, Inc v. N L.R.B., 193 F. 2d 736, 737-738 (C.A. 5). Inso-
far as the complaint, as amended, alleges illegality in the granting of benefits, I find
it invulnerable so far as the statute of limitations is concerned.
This brings us to the question whether the Company in fact violated Section
8(a) (1) by making safety glasses and goggles available to all employees who wanted
them, and by installing a guard rail and a ventilating fan. It is true that these changes
in working conditions were the fruits of an employer-sponsored committee. It also
appears that the emergence of this Committee at the time of the union drive was not
mere coincidence, for the testimony of both Embs' and Bertram's remarks at the
meeting, suggests that the Company was aware of, and was seeking a vent for,
employee grievances. But notwithstanding these considerations which tend to support
General Counsel's case, I cannot find that an employer violates the Act by instituting
these safety measures. It may be true that but for his illegal act in sponsoring the
grievance committee the employer would not have installed the protective devices,
for the matters might not have come to his attention. But once they reached his
attention, the employer had to choose between instituting safety measures or leaving
matters in status quo until such time as he cured his unfair labor practice by disestab-
lishing the Committee, or perhaps until the union campaign had ended (possibly after
years of litigation) either in certification and bargaining or in defeat of the Union.
We have been cautioned not to administer this statute "so single-mindedly [as to]
ignore other and equally important Congressional objectives." Southern Steamship
Company v. N.L.R.B., 316 U.S. 31, 47. A similar caution may be appropriate here.
An employer, once he is aware of hazardous conditions in his plant, should not be
deterred from curing or alleviating such conditions by a fear that his action will run
afoul of this Act. It is no answer to say that a remedial order need not require
rescinding the safety measures. An employer should not be stigmatized as a violator
because he has instituted safety measures. And it cannot be urged that the violation
arises solely because of the original illegality inherent in the sponsorship of the
grievance committee, for this would make the unfair labor practice turn on unfair
labor practices committed outside the limitation period. See Local Lodge No. 1424,
International Association of Machinists (Bryan Manufacturing Co.) v. N L.R.B., 362
U.S. 411; American Federation of Grain Millers v. N.L.R.B, 197 F. 2d 451 (C.A. 5).
A different result might obtain if the evidence established that the safety factors
themselves were an integral part of the Union's organizational campaign. In that
event, the employer's act of granting benefits in the form of safety improvements
would constitute "conduct immediately favorable to employees which is undertaken
with the express purpose of impinging upon their freedom of choice for or against
unionization and is reasonably calculated to have that effect." N.L.R.B. v. Exchange
5 When it was suggested at the hearing that the Dinton case supported the Company's
position with respect to the limitations proviso, General Counsel indicated that he had
"good case law" in support of his position. His otherwise well-documented brief cites
no cases in this area.
CHAMPION PNEUMATIC MACHINERY CO. 305
Parts Company, 375 U.S. 405, 409. But in this case proof is lacking that either the
purpose or the effect of the safety improvements was to impinge upon the employees'
freedom of choice.
In sum, I find that the Employer's conduct in sponsoring the Committee is outside
the proper scope of the complaint in view of the limitations proviso, and I further
find that the Employer's conduct in instituting safety improvements did not violate
the Act. I need only add, with respect to the Committee, that if its creation were to
be held cognizable as an unfair labor practice, I would recommend that no relief issue
in the light of its immediate abandonment, promptly following its inception, when
the Union filed a representation petition.
C. Promise of benefit
The complaint alleges that Borges on February 26 and Embs on February 27
promised benefits to the employees if they refrained from union membership or
support. The record is totally devoid of evidence linking Borges with any such
statement. As to Embs, however, employee Forristall testified that a day or two
before the February 28 election, Enibs discussed wages with Forristall at the latter's
machine. According to Forristall, Embs "said something about the Union, if they
got in , why, it would only be about a 10-cent an hour raise and he could do that good
himself." Embs denied ever having said this to Forristall, and also testified that he
refrained from speaking to any of his employees in the 2 days preceding the election.
I cannot agree with the Company's contention that this allegation is outside the
scope of the original charge. That charge alleged a grant of benefits on April 1, and
"other acts" violative of Section 8(a)(1). The relation between the promise of
benefits and the grant thereof, and the relation between April 1 and February 27, are
not so remote as to warrant dismissing this allegation on the ground previously
discussed in dismissing that pertaining to the Committee. I am therefore confronted
with the task of crediting either Embs or Forristall and discrediting the other. Of
the two, Forristall may be the more disinterested witness, and would seem to have
nothing to gain by fabricating the episode. On the other hand, Embs showed no
equivocation in branding the matter as a falsehood. Of the over 80 employees
involved in the election, General Counsel produced only 1 to whom such a statement
was even allegedly made, a circumstance which tends to support the Company, as
one would expect a more wholesale attempt to defeat the Union by this means if
the Company were to engage in such tactics at all. Of course, it may be that other
employees lacked Forristall's courage to testify against the employer, but I cannot
resort to such speculation to supply corroboration or even to account for the lack
thereof.
On balance, in this extremely delicate if not grave matter, I incline to the view that
Forristall's testimony is to be believed. I have heretofore expounded on the extreme
difficulty in rationalizing credibility findings (see, e.g., Gibbs Corporation, and Gibbs
Shipyards, 142 NLRB 1204, 1211, enfd., sub nom. Gibbs Shipyard, Inc., 333 F. 2d
459 (C.A. 5) ), and the problem here is no easier . Indeed, one may be unable even
to express in terms convincing to one's self the reasons for choosing between the
two conflicting versions. I may, for example, be somewhat influenced by the fact
that Embs' statement that he consciously refrained from talking to employees before
the election was adduced, not by his own highly competent counsel , but by the Trial
Examiner through a rather leading question. In any event, I find Forristall to be a
credible witness and accept his version of the conversation.
For an employer, on the eve of an election, to suggest to an employee that a 10-cent
wage increase is all the Union will seek, and that the employer will grant that without
a union, is palpably to interfere with the employee's freedom of choice, and consti-
tutes a "promise of benefit" within the meaning of Section 8(c). I find, in short, that
the statement violated Section 8(a)(1). But in view of its isolated character, and
the dismissal of the other allegations herein, I would recommend that no remedial
order issue to cure the violation here found. See American Gilsonite Company, 122
NLRB 1006; Canton Carp's, Inc., 130 NLRB 1451; International Ladies Garment
Workers Union (Twin-Kee Manufacturing Co., Inc.), 130 NLRB 614 ; International
Woodworkers of America (Central Veneer, Incorporated), 131 NLRB 189, 190, 196,
Great Atlantic & Pacific Tea Co., 129 NLRB 757, 760.
D. The granting of benefits on May 1
After the consent election of February 28, overt union activity at the plant ceased.
The union continued to press its position on the Board in the representation case, but
the organizing movement as such was not active.
789-730-66-vol. 152-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, with the approach of the spring, the employees became increasingly
unhappy over the Company's practice of scheduling a full 6-day workweek, including
full day and night shifts on Saturdays. Also at this time the Company neared the
completion of certain Government contracts which had originally led it to schedule
full Saturday shifts. Sometime in April the Company announced that effective May 1
the Saturday schedule for both shifts would be reduced from 8 hours to 5 hours, and
the employees' wage rates were adjusted upwards so that their take-home pay remained
substantially unaffected by the reduced hours.
There is not a scintilla of evidence-aside from the pendency of the representation
case , then before the Regional Director on objections to the election-that this change
in hours and wages was in any way directed at, responsive to, or affected by, the pres-
ence of the Union. There is no suggestion that elimination or curtailment of Saturday
work was one of the Union's campaign promises, or that the Union ever referred to
the problem. General Counsel's position is that by establishing the granting of bene-
fits while the representation case was pending he has established a violation of Section
8(a)(1). Again I must disagree. The record conclusively establishes that the events
were unrelated. This is not a case where an election was imminent as in N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405, nor is it one in which the benefits granted
conformed to those urged by the Union in its propaganda, as in Seneca Plastics,
Incorporated, 149 NLRB 320. To find a violation here would be to hold that all
wages and other working conditions must remain fixed from the time a petition is
filed, or a campaign instituted, until the petition is ultimately disposed of. I cannot
endorse so unrealistic a view.
I am aware that in Ambox, Incorporated, 146 NLRB 1520, the Board found that
an employer violated the Act by granting a wage increase at a time when a union's
objections to an election were pending. In that case the Board stated that the
announcement of a wage increase "when considered in the light of Respondent's,
earlier unlawful conduct, was calculated to influence its employees' choice of a
bargaining representative in the event of a second election." The Board further
noted in that case that the employer's "conduct was part of an overall plan to
encourage membership in and perpetuate a company-dominated union ...... The
surrounding circumstances referred to in Ambox are not present here, and I there-
fore do not regard that decision as controlling. Of course, the granting of a wage
increase may be unlawful if it is done for the purpose of impinging upon employee
freedom of choice and is reasonably calculated to have that effect. Exchange Parts,
Incorporated, supra. A finding of illegal purpose and effect may be made, and per-
haps must be made, where the action immediately precedes an election (Exchange
Parts) or conforms to an earlier union campaign promise (Seneca Plastics, Incorpo-
rated, supra.) But mere pendency of objections to a past election should not require
a finding that any and all improvements in working conditions, whatever their source
and purpose, are outlawed. Issues of this nature cannot be decided mechanically,
or by invocation of "per se" doctrines, howsoever administratively convenient such
substitutes for case-by-case determination may appear. In the instant case, the need
for overtime had diminished This was a fact unrelated to union activity. The
employer was dissatisfied with sporadic attendance on Saturdays, another fact unre-
lated to union activity. The employees did not desire to work full shifts on Satur-
day, again a fact which so far as this record shows was unrelated to union activity.
The employer, exhorting them to maintain a high level of production, curtailed
Saturday work, and increased their hourly rates of pay to maintain their take-home
pay at the same level. Whether this action violated Section 8(a)(1) must be deter-
mined in the light of all the circumstances, of which the pendency of objections to.
the election is but one. Certainly, the pendency of objections did not require the
employer to continue working overtime hours after the project requiring such hours.
was completed. Yet a reduction of hours can be a benefit which, under certain cir-
cumstances , may be granted to discourage union activity. General Counsel empha-
sized in his brief that a wage increase was granted so that employee take-home pay
was unaffected by the loss of 3 overtime hours. Such an adjustment, which did not
increase an employee's net earnings, may be distinguished from the more common-
form of wage increase such as that in Ambox, which increased take-home pay.
This circumstance merely emphasizes my fundamental holding, namely that the
question whether an employer violates the Act by granting benefits while objections
to an election are pending must be decided on the basis of all the attendant circum-
stances. As the instant case demonstrates, quite apart from the alleged violation-
now being considered, an election may be pending for a considerable period of time.
Here the election was in February 1964, but a second election, scheduled for July
1964 , will not be held until this proceeding has ended. Bearing in mind the possi-
WOLVERINE SHOE & TANNING CORPORATION 307
bility of court of appeals and even Supreme Court review, it is not unreasonable to
estimate that the election may be pending for 2 or even 3 years. Fluctuations in the
cost of living or in the labor market or in other factors affecting the employer's
business may well occur during this period, rendering wage adjustments advisable or
necessary . I cannot believe that Ambox or any other decision requires a holding
that any such adjustment made while a second election is pending is automatically
an unfair labor practice.
I find that the granting of benefits on May 1 was an exercise by the Company of
business judgment unrelated to union activity and, it did not violate the. Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Union and the Employee Grievance Committee , are labor organizations
within the meaning of the Act.
3. Respondent has engaged in no unfair labor practices cognizable in this pro-
ceeding which would warrant the issuance of a remedial order.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed.
Wolverine Shoe & Tanning Corporation and American Federa-
tion of Labor-Congress of Industrial Organizations
Wolverine Shoe & Tanning Corporation and International Union,
Allied Industrial Workers of America , AFL-CIO. Cases Nos.
7-CA=4545 and 7-CA-4601. April 30, 1965
DECISION AND ORDER
On February 4, 1965, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findingssl conclusions, and recom-
mendations of the Trial Examiner.
1 The Trial Examiner found that Robert E. Splane's union activity was a contributing
factor leading to his discharge . On the record before us , we find that Splane 's union
activity was the motivating factor for the discharge.
152 NLRB No. 19.