GAF Corp.

National Labor Relations Board - Board Decisions

Apr 24, 1972

196 N.L.R.B. 538 (N.L.R.B. 1972)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GAF Corporation and Local 53 , International Union of
Police and Protection Employees , IWA. Case 22-
CA-4563
April 24, 1972
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On January 25, 1972, Trial Examiner Charles W.
Schneider issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions 2 and to adopt his
recommended Order .3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondent, GAF Corporation, Linden, New Jersey,
its officers , agents , successors , and assigns , shall take
the action set forth in the Trial Examiner's recom-
mended Order.
1 The Respondent has requested oral argument . This request is hereby
denied as the record , the exceptions , and the brief adequately present the
issues and the positions of the parties.
2 In reaching our conclusion , we rely on the Trial Examiner's discussion
of the necessity for a motive by the Employer to interfere with the employees'
free choice only in the circumstances of this case and only with respect to
the violation of Section 8(a)(3).
3 In adopting the Trial Examiner 's recommendation for the reimbursement
of employees , we rely solely on the Trial Examiner's finding that the wage
increase had been granted and announced to the employees, effective March
1, 1971. We therefore find it unnecessary to adopt or pass upon his discussion
as to whether such reimbursement would be an appropriate remedy if the
employees had merely been advised that they would be recommended for a
wage increase.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER , Trial Examiner: This case was
tried before me in Newark, New Jersey, on November 15
and 22, 1971, upon an unfair labor practice charge filed on
August 16, 1971, by Local 53 , International Union of Police
and Protection Employees, IWA, the Union, against GAF
Corporation, the Respondent, and upon a complaint issued
by the General Counsel of the National Labor Relations
Board on September 28, 1971. The complaint alleged in
substance that the Respondent committed violations of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations Act
(29 U.S.C. 158); more specifically that the Respondent re-
fused. to bargain collectively with the Union and withdrew
promses of wage increases and other benefits. The Respon-
dent duly filed an answer on October 12, 1971, denying the
commission of unfair labor practices.
At the hearing judgment on the pleadings was granted on
motion of the General Counsel, and over opposition of the
Respondent, on the portions of the complaint alleging that
the Respondent refused to bargain with the Union. This
ruling is discussed in more detail hereinafter. The parties
waived oral argument on the record. Briefs were filed by the
General Counsel on December 28, 1971, and by the Re-
spondent on January 3, 1972. No other briefs have been
received.
Upon the entire record, including my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Delaware.
At all tunes material herein, Respondent has maintained
its principal office at 140 West 51st Street, New York, New
York, herein called the New York office, and various other
offices, places of business, and plants in the State of New
Jersey, including the plant at Linden, New Jersey, herein
called the Linden plant, and is now, and at all times material
herein has been continuously, engaged at said offices, places
of business, and plants in the manufacture, sale, and distri-
bution of chemicals and related products. Respondent's
Linden plant is its only facility involved in this proceeding.
In the course and conduct of Respondent's business oper-
ations during the preceding 12 months, said operations
being representative of its operations at all times material
herein, Respondent caused to be manufactured, sold, and
distributed at said plant products, goods, and materials val-
ued in excess of $50,000, of which products, goods, and
materials valued in excess of $50,000 were shipped from
said Linden plant interstate commerce directly to States of
the United States other than the State of New Jersey.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The issues are (1) whether the Respondent's admitted
action in refusing to bargain with the Union following a
certification of the Union by the Board was unlawful, and
(2) whether the Respondent promised employees wage in-
creases which it thereafter admittedly declined to grant. At
this stage of the proceeding the refusal to bargain issue
involves only a question of law. The 8(a)(3) issue involves
disputed fact questions hinging on credibility. As to the
8(a)(5) issue the Respondent contends that the certification
196 NLRB No. 84
GAF CORPORATION 539
of the Union was invalid on the ground that its objections
to the election were erroneously overruled and further that
its refusal to bargain was in good faith. With respect to the
8(a)(3) allegation the Respondent denies that the employees
were promised the alleged wage increases.
I have concluded that the evidence substantiates both
allegations of the complaint.
A. The Refusal To Bargain
Official notice is taken of the relevant documents and
ru lings in the representation proceeding, Case 22-RC-4891.
On April 15, a consent election was held among the
guards and security officers of the Respondent at its Linden,
New Jersey, plant in which a majority of the valid ballots
were cast for the Union. Thereafter the Respondent filed
timely objections to the election. On May 25, 1971, the
Regionalobjections issued a Report on Objections and Certi-
fication of Representative. In the report and certification,
after consideration of the objections and the evidence in
support of them, the Regional Director found that the ob-
jections did not raise substantial and material issues with
respect to the conduct of the election and therefore over-
ruled them and certified the Union as the representative of
the employees in the appropriate unit of guards and security
officers, excluding office clerical employees, professional
employees, supervisors, and all other employees. The Re-
spondent subsequently filed a motion for reconsideration of
the Report on Objections, and a Motion to Reopen the
Representation Proceeding based on new evidence. These
motions were denied by the Regional Director.
At the hearing the General Counsel moved for judgment
on the pleadings with respect to the refusal to bargain allega-
tion of the complaint on the ground, in substance, that the
admitted facts established a violation of Section 8(a)(5). The
Respondent objected on the ground that its objections to
the election had been improperly overruled and requested
that it be permitted to litigate the matter in this proceeding.
The Respondent offered no new or previously unavailable
evidence or other special circumstances. In its brief the
Respondent requests reconsideration of the ruling granting
judgment on the pleadings. I have therefore reconsidered
the question but have concluded that the judgment should
stand. I
It is established Board policy, in absence of newly discov-
ered or previously unavailable evidence or special circum-
stances, not to permit litigation before a trial examiner in an
unfair labor practice case of issues which were or could have
been litigated in a prior related representation proceeding.
This policy is applicable even though no formalphearing on
objections has been provided by the Board. Such a hearing
is not a matter of right unless substantial and material issues
are raised. The Respondent having offered no newly discov-
ered or previously unavailable evidence or claimed any spe-
cial circumstances there are no unresolved matters requiring
a hearing. The certification of the Union is final and binding
on the Trial Examiner at this stage of the proceeding. The
ruling granting the General Counsel's motion for judgment
on the pleadings is therefore reaffirmed.'
1 Among other contentions of the Respondent is one to the effect that a
majority of the employees repudiated the Union after the election, about in
June 1971 . Assuming that this was so, such action could not affect the
binding effect of the certification so soon after the election . In any event, at
the time of hearing the employees admittedly wished the Respondent to
bargain with the Union on their behalf.
2 See Lyman Printing and Finishing Company, A Division of M. Lowenstein
& Sons, 183 NLRB No. 105, and cases there cited; Georgia Pacific Corp., 193
NLRB No. 133.
B. The 8(a)(3) Issue
The sum of the allegations of the complaint and the
General Counsel's evidence in this respect is that in early
February 1971 the Respondent promised a wage increase to
the guards but canceled or withdrew it several weeks later
because the guards sought to have the Union as their collec-
tive-bargaining representative.
The Respondent concedes that the guards were notified
by the Respondent that a wage increase was being consid-
ered and that they were subsequently notified that the in-
crease would not be granted because of the filing of the
Union's petition for certification. The reason ascribed by
the Respondent for this latter action is that the Respondent
did not wish to risk possible charges of having attempted to
bribe or influence the guards.
The issues in this respect are: (1) whether the
Respondent's officials advised the guards that they would
definitely get the increase or instead merely informed them
that the increase was being considered or recommended.
With respect to this issue the testimony is in direct conflict.
The General Counsel's witnesses-guards-testified, in
sum, that they were advised that the increase was definitely
granted, effective March 1. The Respondent's witnesses-
officials-testified that the employees were told only that
the increase was being recommended. (2) If the General
Counsel's testimony is accepted would the withdrawal of
the increase constitute an unfair labor practice? and (3) if
the Respondent's testimony is accepted would the with-
drawal of the proposed increase constitute an unfair labor
practice, and, if so, what should the remedy be. We turn
now to a discussion of the evidence.
I have concluded, for reasons given hereafter, that the
testimony to the effect that the increases were definitely
announced is to be accepted, and the contrary testimony in
that respect rejected. r have further concluded that the
Respondent's action in later cancelling the increase was
unlawful. However, my view in that respect is not depend-
ent upon my opinion that the employees were promised the
increase. My conclusion as to the unfair labor practice
would be the same if I accepted the Respondent's version
of that conflict in testimony.
1. The meetings
During the first week of February 1971, about February
5, the Respondent held a series of meetings, by shifts, of the
guards, totaling some 10 in number, employed at the Linden
plant. Representing the Respondent at these meetings were
Richard Eschle, plant personnel manager, Curt Elsner, then
chief of plant security, Fred Marchant, chief supervisor of
the guards, Thomas Ingate, an efficiency expert, and the
supervisor of each shift.3 Eschle was the sole or principal
spokesman for the Respondent at these meetings.4
A consensus of the General Counsel's material testimo-
ny-disputed only as to whether there was a reference to a
6 per cent wage increase and whether an additional wage
increase was definitely promised or only recommended-is
as follows:
The Respondent's spokesman stated, in sum, that a man-
3 There were apparently four shifts . Thus a total of eight different supervi-
sors or officials of the Respondent were present at the meetings.
4 There is a conflict in the testimony as to whether Eschle was the sole
spokesman. At least two of the employees (Edward Rice and Sigmund Mi-
luszewski) testified that Elsner was the company spokesman at the first
meeting of their shift . Elsner and Eschle, the Respondent's sole witnesses,
testified that Eschle was the spokesman at all meetings . The conflict is not
crucial and need not be resolved.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agement survey of the wages of guards in the community
had disclosed that the Respondent 's guards should be given
a wage increase to equalize them with the area levels and
that this increase would be effective on March 1, 1971. The
Respondent's spokesman wrote the new rates of pay on the
blackboard . For employees of less than 90 days of employ-
ment the pay raise would be $3.40 per hour plus an 11-cent
shift differential or $3.51 . For employees of over 90 days of
employment the hourly rate would be $3.50 plus an 11-cent
shift differential . At that time the employees were earning
$2.93 per hour . A portion of the $2 .93 was the result of a 6
per cent wage increase granted February 1, 1971. This 6 per
cent increase tracked a similar increase given to the produc-
tion and maintenance employees pursuant to agreement
with another Union representing the production and main-
tenance employees. No reference was made by the
Respondent 's officials at this meetin to the 6 per cent
increase other than that the new hourly increase would be
in addition to the 6 per cent increase . The Respondent's
spokesman stated that the increase would be granted. They
did not intimate that it was only a proposal or recommenda-
tion or that it would require approval by higher manage-
ment.
The Respondent presented two witnesses , Eschle and Els-
ner. Both testified, in sum, that the purpose of the meeting
was to announce that Eschle had secured approval of the
February I increase of 6 percent and also to discuss a
recommendation for the further hourly increase testified to
by the employees . These recommendations were based on
the survey which the Respondent's officials had previously
undertaken. Elsner further testified that at the time of the
meeting the recommendation for the additional hourly in-
crease had already been made in writing to the plant manag-
er, in accordance with usual procedure . The inference from
his testimony is that the plant manager had approved the
increases and had passed the recommendation on to higher
authority for final approval.
The Respondent's procedure at the Linden plant for ef-
fecting a wage raise at the suggestion of departmental super-
visors or officials was described by plant Personnel
Manager Eschle as follows : Such increases require the ap-
proval of higher management and they are initiated by a
letter from Eschle to the plant manager stating the proposal
with its justification and providing spaces for the signatures
of the director of manufacturing and of the corporate vice
president of personnel relations . The letter then passes suc-
cessively through the hands of these officials , the latter 2 of
whom are located in New York City, and when all signa-
tures have been secured the increase is granted. The
Respondent 's testimony is that this was the procedure fol-
lowed in the instant case . The Respondent 's testimony
therefore is that at the time of this meeting approval had
been secured for the 6 percent wage increase for the guards
but not for the further increase.
2. The second meeting
About a week after the first series of meetings , a second
series of shift meetings was held , as before . At these meet-
ings Plant Personnel Manager Eschle read the following
statement to the guards:
Gentlemen:
I have asked you to come in today to explain a
situation which, unfortunately , I feel very bad about.
You remember we met on February 5, at which time
we discussed your working conditions , wages and
fringes . At that time , I told you that effective February
1, you would receive a wage increase and that the com-
pany would seriously consider an additional wage in-
crease effective as of March 1.
Approximately the same time we received a notice
from the National Labor Relations Board advising us
that you folks have petitioned for an election to be
represented by the International Union of Police and
Protection Employees-I.W.A.-to represent you in
collective bargaining.
It is with regret that your Management, being law-
abiding, because of this situation now finds itself in a
position where we are seriously concerned about the
risks invovled in going ahead with the March 1 pro-
posed increase on the grounds that we would be expo-
sing the company to possible legal action for
attempting to bribe you or influence you. For this rea-
son, since there is a third party involved now, I must
advise you that the increase which we considered for
March 1 will not be granted. Again, I repeat, I sincerely
regret that we find ourselves in this position.
Personnel Manager Eschle's testimony is that several
days prior to this meeting he had been called to the New
York office, given the statement, and instructed to deliver
it to the employees.
3. Conclusions as to whether the increase
was promised or only recommended
As is evident from the foregoing testimony there is a
diametrical conflict between the testimony of the witnesses
for the General Counsel and that of the witnesses for the
Respondent as to whether or not there was a definite prom-
ise at the first series of meetings to the effect the wage
increase would be effective as of March 1. Though I do not
regard the issue as crucial to my ultimate determination, I
deem the affirmative testimony more probable , for the fol-
lowing reasons.
The General Counsel presented as witnesses 6 of the 10
guards who were apparently present at the meetings; the
Respondent presented 2 of the 8 of its representatives who
attended : Plant Personnel Manager Eschle and Plant Secu-
rity Chief Elsner . There is no explanation for the failure of
the General Counsel to call the other four potential employ-
ee witnesses or adequate explanation of the Respondent's
omission to secure the testimony of the remainder of its
representatives . Of these omissions I consider the failure of
the Respondent the more significant . In addition, the
Respondent 's evidence does not include the original or a
copy of the written recommendation which Eschle and Els-
ner assert were submitted in justification of the wage in-
crease in question . Nor is there any explanation for the
failure to produce this document . If, as the Respondent's
officials assert , their action consisted purely of a recommen-
dation, it would seem that the document , which predated
the first meeting , would so disclose and thus be diapositive
of that factual issue . The Respondent's failure to produce
or to explain the failure to produce the written recommen-
dation is therefore a substantial element militating against
acceptance of its testimony concerning the first meeting. In
this circumstance the absence of testimony by the other
Respondent's officials who were , according to the Respon-
dent, present at that meeting is a similar probative factor.
Both these elements of proof, the written document and the
missing officials , were , so far as the record reveals , within
the control of the Respondent.'
5 The record contains no explanation in this regard . However, the brief of
the Respondent (p 7) contains the following note-
2 Prior to the commencement of the hearing on November 22, 1971,
GAF CORPORATION 541
While it could be argued that the failure of the General
Counsel either to call the four missing guard witnesses or to
explain their nonappearance impairs the credibility of his
evidence , such a conclusion does not necessarily follow, as
it does with respect to the failure of the Respondent to call
its supervisors . This for several reasons . First, it is not clear
from the evidence that the four missing guards were present
at the first February meeting . Secondly , it is not certain that
they were available to the General Counsel . Thus, the Re-
spondent asserted in support of its defense to its refusal to
bargain that in June 1971 (2 months after the election and
less than I month after the certification ) some eight of the
employees in the guard unit signified to the Respondent that
they did not wish the Respondent to bargain with the Un-
ion.6 Five employees voted against the Union in the election
(at which time Were were approximately 13 in the bargain-
ing unit). Some of the four missing guard witnesses may be
among those who opposed or repudiated the Union and
continue to do so-and thus in practical effect not available
to the General Counsel . They could under such circum-
stances , however, be available to the Respondent . It cannot
therefore be said with certainty that the General Counsel
has not called all witnesses available to him to sup ort his
case . If it be argued that the witnesses were available to the
General Counsel by subpoena it may also be said that they
were equally available to the Respondent.
The number of witnesses , six, who testified in support of
the General Counsel's version of the facts , also tends,
though not conclusively, to verify that account . Perhaps as
has been suggested , these were all that were realistically
available to the General Counsel . Against this the Respon-
dent has provided two witnesses of the eight-or at worst
six-available to it . The numbers are of some significance.
While it is true that the two may be truthful and the six
lying , the possibilities of perjury or error would seem to
decrease in direct proportion to the number of witnesses not
patently incredible who testified to the fact.
In addition there seems something of an inconsistency in
the Respondent's account . Thus the purpose of the first
meeting was said by Eschle and Elsner to have been two-
fold, to announce ( 1) the granting of the 6 percent increase,
and (2) the recommendation for the further increase. The
testimony of the General Counsel , not denied by the Re-
spondent, is to the effect that there had never before been
a meeting held to announce the granting or the recom-
mending of wage increases . According to Plant Personnel
Manager Eschle s testimony he had recommended the 6 per-
the Trial Examiner was informed by Employer's Attorney that he plan-
ned to call only two witnesses to avoid duplicity of testimony and due
to the fact that Mr . Marchant (Chief Supervisor of the guards) was
hospitalized at the time of the hearing and Mr. Ingate (Company's
efficiency expert) was in Florida on business . I did not hear such a
statement concerning Marchant and Ingate and am not otherwise aware
that it was made or that the two individuals were not available. In any
event , assuming that the statement was made , I do not consider such an
explanation to affect the conclusions to be drawn from the evidence.
Methods for the perpetuation of testimony of unavailable witnesses
exist, of which it is presumed Respondent's experienced counsel is
aware . Additionally, proof of unavailability of Messrs . Marchant and
Ingate would not explain the omission to call the other four representa-
tives of the Respondent who were present and assumedly available. In
the absence of ruling or suggestion by the Trial Examiner-neither of
which occurred here-assertions of counsel of forbearance to call wit-
nesses in order to avoid cumulation have no probative value in assessing
the weight to be given testimony.
s A position which a majority of the employees repudiated in November
1971, as a consequence of which the Respondent then (apparently conceding
that the Union is now the representative of the employees ) commenced
negotiations with the Union on November 19, 1971.
cent wage increase in late December or early January and
it was approved some time thereafter . No reason is appar-
ent, nor is any suggested by the Respondent , as to why if
Eschle waited until the 6 percent increase was approved to
announce it he did not follow the same course with respect
to the larger increase . Conversely, it is not clear as to why,
if he thought it advisable to notify the employees in Feb-
ruary of the recommendation for the hourly increase, he did
not advise them in December or January of his recommen-
dation for the 6 percent increase . In these circumstances it
seems inconsistent to have followed one course in Decem-
ber or January and a different one in February . These con-
siderations suggest that if there is error in the narration of
crucial facts the error is in the Respondent 's and not in the
General Counsel's witnesses.
Finally, it seems of some significance that Eschle 's testi-
mony is in many instances hedged with modifications and
apparent hesitancies suggesting possible doubts about his
recollection or unwillingness to be definite . Thus , he testi-
fied that at the first meeting he "probably" said that he had
gotten approval of the 6 percent increase effective February
I. Again, "I believe if memory serves me right I outlined a
figure of some $3 .60 an hour or was it-well,-how it was split
up I don't recall . It may have been with or without a shift
differential ." Again , "If memory serves me right" he told
the employees that he could recommend the increase to
management based on his earlier survey , and, "If memory
serves me right" employee Richards commented "that's
good , but too late. Something to that nature." The record
contains other instances of similar hesitation . Thus , he "did
not recall" discussing job duties at the first meeting; the
statement which he read at the second meeting was prepar-
ed by the corporate director of labor relations several days
before he read it, "I guess . Specifically, I don't recall. Very
On the occasion of reading theshortly before I read it 11
statement he did not add anything , "No, sir, not to my
knowledge ." Initiallyy he did not recall whether he posted on
the blackboard any figures relating to the 6 percent increase
at the first meeting . However, when his attention was called
to a statement in his affidavit dated November 19, 1971 (a
few days before his testimony), in which he stated that he
did write the 6 per cent figures on the blackboard his answer
was, "If I said it then I guess I did . Q. You're not sure? A.
I can't be sure of anything that happened that long ago." As
to the number of meetings held in the first series in February
he believed there were three but "there could have been
4.117 As to when he secured approval for the 6 percent increase
"I believe I said sometime rate in December or sometime in
January." As to whether he made a statement at the first meet-
ing concerning a list submitted sometime before relating to
employee grievances he could not recall whether he
mentioned it in the meeting or not; "I can't recall exactly
what I said," though he was certain that he "said recom-
mended increase at that meeting ." He was not sure as to the
amount of the recommended increase or its details . Nor did
he recall a comment by one of the employees , as related in
the General Counsel 's testimony, as to why if a raise would
be given in March it should not be given now. Nor did he
recall a question by another employee as to his status with
respect to the increase . Nor couldhe recall which of the
employees attended the various meetings.
To be sure , expressions of hesitation and modification of
testimony are not necessarily indicative of incredibility.
Such things may be no more than the hallmark of an excep-
tionally honest witness trying to be accurate . Indeed it is
possible that they may be so here, but in the circumstances
I am impelled to conclude that they are at least indications
7 It was stipulated that there were four.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of doubt or failure of recollection by Eschle militating
against acceptance of such of his testimony as may be con-
trary to positive recollections of other witnesses.
Elsner, though on the whole more definite as a witness
than Eschle , was also cautious in significant instances,
vague at the times as to meaningful detail , and in places
gave testimony at variance with that of Eschle.
These various objective factors appear to support the
credibility of the General Counsel's testimony to the effect
that the employees were advised that they would receive the
increase on March 1, that no conditions were placed on the
increase , and that no references were made to its being a
recommendation or requiring approval.
My appraisal of the witnesses accords with that conclu-
sion . With respect to the basic and crucial facts the witness-
es for the General Counsel appeared to be positive and
straightforward . To be sure there were conflicts and failures
of recollection in some of their testimony also; none howev-
er of apparent substantial significance . Since the witnesses
were sequestered , differences in minor details suggest truth
more than falsehood. Equally there were conflicts in the
testimony of the Respondents witnesses.
In the light of all these factors it is my conclusion that the
evidence of the General Counsel's witnesses is credible and
is to be accepted.
Accepting this testimony, the question follows, has the
Respondent violated Section 8(a)(3) and (1) of the Act by
promising wage increases and thereafter withdrawing or
revoking them because the Union or the employees had
invoked the processes of the Board?
4. Legality of the Respondent 's action
The Respondent's alternative position is that even if it be
found that the wage increase was promised and thereafter
revoked under the circumstances found , such action is not
a violation of the Act . The reason asserted for this position
is that postponement or withdrawal of promises or grants of
wage ncreases during union campaigns or pending collec-
tive-bargaining elections have been found by the Board and
the courts to be unlawful only where intended to influence
employees . In the instant case , as we have seen, the
Respondent 's stated reason to the employees for denial of
the projected increase was that the employees had ppeti-
tioned the Board for an election to be represented in collec-
tive bargaining by the Union and , since a "third party" was y
now involved, to grant the increase would be "exposing the
Company to possible legal action for attempting to bribe
you or influence you."
The Respondent further contends that even though it
might ultimately have been found not guilty of having
sought to influence the employees it was faced with the
possibility that charges might occur and that, having in
good faith sought to forestall that contingency, it should not
be ut in the position of having to run the risk of having to
defend itself.
Concedm^ for the purpose of argument that the
Respondent s reasons for not granting the March 1 increase
were those which it stated, I do not find that to be an
adequate defense in the circumstances of this case.
At the time of the Respondent's action the Union had not
as yet established its status as a bargaining representative of
the employees . Hence there was then no obligation on the
Respondent's part to bargain with the Union over wages.
Prior cases before the Board and the courts involving the
legality of employer action with respect to wage increases or
other employee benefits during a union organizational cam-
paign or the pendency of a representation proceeding be-
fore the Board fall into two broad categories-those involv-
ing rants or ppromises of increases or benefits and those
invoglving withholding of them . In both types of cases, if the
employer's action is motivated by intent to influence em-
ployees in the selection of a union or bargaining representa-
tive, the action is an unfair labor practice : N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405 ( 1963); N.L.R.B. v. Dan
Howard Manufacturing Co., 390 F .2d 304 (C.A. 7, 1968).8
In the cases involving increases in wages or benefits dur-
ing organizational or representation proceedings , intent to
Influence the employees is necessary to establish the viola-
tion . Until a bargaining agent has been selected in such
situations the employer may increase wages or other bene-
fits at will so long as his purpose is not to influence employ-
ees concerning self-organizational matters : " . . . the law is
clear that benefits granted during an organizational cam-
paign under circumstances unrelated to the acceptance or
rejection of a bargaining representative by employees does
not violate the Act ." Agawam Food Mart, Inc., et al, d/b/a
The Food Mart, 158 NLRB 1294, 1300-0 ] . The most recent
Board decision is to the same effect : Leslie Metal Arts, Inc.,
194 NLRB 20.9 The employer is thus free in such a situation
to continue his customary policies , including the grant of
wage increases or other augmented benefits, without there-
by committing unfair labor practices . I know of no case, and
I am cited to none , in which it has been held by the Board
or a court that granting of a wage increase or other aug-
mented employee benefit to unrepresented employees dur-
ing a union or election campaign without purpose or intent
of affecting the outcome of the election or campaign is an
unfair labor practice.10
The rationale for such a result is two-fold: (1) If there is
no statutory employee bargaining representative an em-
ployer is not prohibited by the National Labor Relations
Act from changing conditions of employment at will so long
as he does not thereby interfere with, restrain , or coerce
employees in the exercise of their self-organizational rights.
The granting of wage increases for the purpose of influenc-
ing employees in respect of such rights is such an interfer-
ence , restraint , and coercion , since it is a grant of an
economic benefit designed to affect the employees' free
choice. However, granting a wage increase without such
intent is not such an interference with free choice . While it
is possible that employees may erroneously conclude that a
wage increase given during an organizational or representa-
tional campaign was given with intent to influence them-
or indeed ma even actually conclude that a union is unnec-
8 In the Exchange Parts case , involving the granting of wage increases, the
Supreme Court said, in part, that Sec 8 (a)(1) of the Act:
prohibits not only intrusive threats and promises but also conduct
immediately favorable to employees which is undertaken with the ex-
press purpose of impinging upon their freedom of choice for or against
unionization and is reasonably calculated to have that effect [p. 409]
In the Dan Howard case, involving the witholding of wage increases, the
court found that the employer,
interfered with employee organizational rights by denying custom-
ary employee wage increases , despite the Company' s claim that this was
done on the advice of counsel that to grant the increases would be an
unfair labor practice The Trial Examiner could well infer on the record
that but for the organization campaign the raises would have been given
and that the motivation was anti -Union bias resulting in violation. [p.
3071
See also N L R B v Agawam Food Mart, Inc, 386 F 2d 192 (C A 1, 1967),
in accord
9 In the Leslie case the Board held that the announcement by an employer,
during the pendency of an election , of a regular annual wage increase was
not an unfair labor practice even though the announcement was advanced
over 1 month because of complicating business factors.
10 There have been cases where the Board and courts have disagreed as to
the motivation for the granting of such benefits.
GAF CORPORATION 543
essary-such possibilities or results do not transform the
employer's legal action into an unlawful one. Except to the
extent prohibited by law, an employer is left free to operate
his enterprise to the fullest possible extent and to continue
to make decisions respecting it, solely on the basis of his
economic judgments and in accordance with his customary
business policies. Where there is no employer intent to influ-
ence employee organizational choice, any impingement on
actual free choice resulting from a conclusion by an employ-
ee that influence was intended, or that the grant of benefit
demonstrated that a union was unnecessary, is too remote
and unprobative a consequence for recognition when
weighed against the necessity for disturbing customary
management controls and policies only to the extent re-
quired to assure free employee choice. That wrong conclu-
sions as to the employer's motive may be drawn by an
employee in such a situation-and his decision as to self-
organization consequently influenced-is too remote a con-
sequence to be judicially cognizable and a small price, when
the equities are weighed, for, the preservation of an impor-
tant economic principle. It may be likened to the situation
in which an employer for valid business reasons discharges
the union leader in the plant. That that action may be
viewed by employees as a reprisal for union activity and
result in actual dampening of union ardor among union
supporters does not convert the employer's action into an
unfair labor practice. Similarly an employer's valid rule
against union solicitation may hinder union organization, as
may the legitimate refusal to reinstate economic strikers
who have been validly replaced, or unfair labor practice
strikers who have engaged in strike violence. Nevertheless
those unintended consequences do not make the employer's
action unlawful.
There is a further consideration for the rule requiring
proof of unlawful purpose before finding an unfair labor
practice in the granting of benefits during an organizational
campaign and that is that an increase in employment bene-
fits has no necessary tendency to discourage union organi-
zation; indeed it is arguable that it has the contrary effect:
that it demonstrates to employees the effectiveness of such
organization. There thus being no inherent tendency to un-
ion discouragement in a wage increase during a union cam-
paign, an unfair labor practice can be found only on proof
that discouragement or influence was its purpose.
The same reasoning is not applicable, however, where the
employer withholds a wage increase or other union benefits
during an organizational campaign or representation pro-
ceeding. For while the grant of a wage increase at such a
time has no inherent tendency to discourage union organi-
zation or designation the withholding of a wage increase
with the accompanying explanation that the action is being
taken because of the pendency of the campaign or the pro-
ceeding manifestly has such effect. This, for two reasons:
first, because the announced motivation, if made concur-
rently with the grant of a wage increase, would convert the
grant from a lawful to an unlawful act. Hence in the with-
holding case the explanation provides the evidence of mo-
tive which is the essential ingredient of the unfair labor
practice. The withholding plus the motive makes out a prima
facie case of discriminatory action. In such a situation the
burden is on the employer to establish a valid and reasona-
ble basis for his act. This is not an extraordinary require-
ment. Effectuation of the statutory policy of protection of
employee choice requires the employer to justify objectively
conduct which on its face has the inherent effect of discour-
aging the exercise of those rights." Mere good faith is not
11 Familiar instances of situations under the Act requiring demonstration
enough. The situation may be roughly analogous to the
principle in our criminal and civil law authorizing the use
of force to resist unlawful assaults on one's person or prop-
erty. The resisting force, however, must be no more than
reasonably required in the circumstance, and it must be
utilized only with good faith to protect the assaulted inter-
est. There is, of course, one obvious difference from our
case. The Respondent here was not resisting an unlawful
intrusion on his person or property. The employees' action
which provoked his response was peaceful and lawful and
not a hostile aggression.
The reason for the requirement that there be reasonable
ground for the employers action is apparent: where action
is taken depriving employees of employment status, more
favorable working conditions, or wage increases, as a de-
clared consequence of union or related activity, hindrance
of that activity is evident-it need not be looked for. But,
as we have seen, if justified by the circumstances any conse-
quent dampening of organizational ardor is not eliminated,
it is merely excused as an unavoidable consequence of pro-
tection of another and overriding interest. The employer's
conduct thus does not meet the statutory definition of an
unfair labor practice-although in a psychological sense it
may be quite restraintful of union adherence.
It seems indisputable that if employees can lawfully be
denied wage increases which they have been legally prom-
ised merely because they seek or have sought to affiliate
with a union or to secure a collective-bargaining election a
serious impediment has been engrafted on the employees'
right guaranteed by the Act to a free choice as to whether
or not they wish to join a labor organization or seek collec-
tive representation. The intent and the entire thrust of the
Act and its Section 8(a)(1) and (3) is to assure an employee
that he may safely seek union membership and representa-
tion without thereby risking employer debasement or di-
minution of his employment conditions and sacrificing his
future prospects for improvement in his status which would
otherwise be instituted by his employer. This is so regardless
of whether the employer's action is taken in the good-faith
belief that the granting of benefits under such circumstances
may expose it to litigation as an attempt at bribery or undue
influence or whether it is instead animated by specific intent
to discourage union or concerted employee action. The re-
straint and discouragement is as potent in either case.
The responsibility imposed on an employer during an
election or a union campaign is not an onerous one. He is
merely required to refrain from taking action which will
interfere with, restrain, or coerce employees in the exercise
of rights guaranteed by the Act. Unless he chooses to do so
pursuant to valid union contract, he is not required to mod-
ify his lawful employment practices or to change his legit-
imate method of doing business because of the entrance of
a union into the picture. Ipso facto there is no such require-
ment where the union is not the lawful exclusive bargaining
representative of any of his employees. He is merely obliged
to continue to do business without unlawfully impeding or
of objective factors and placing the burden of proof on the respondent are
the following: Discharge of striking employees under mistaken belief that (1)
their absence from work was disobedience of company rule and not a strike
(Home Beneficial Life Insurance Co., 159 F.2d 280, 284-285 (C.A. 4), cert.
denied 332 U.S. 758) and (2) they had engaged in violence (Burnup & Sims,
379 U.S. 21); denial of reinstatement to strikers (Fleetwood Trailer Co., 389
U.S. 375), economic justification for layoff (Arkansas Gas Co, 142 NLRB
1083); rule forbidding union solicitation on employees' free time; (Walton
Manufacturing Co, 126 NLRB 697, 289 F.2d 177 (C.A.5); change of circum-
stances relieving an employee of his normal duty to obey a certification
(Arizona Public Service Co, 188 NLRB No. 1); establishment of affirmative
defense (Marydale, Inc, 133 NLRB 1232).
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entrenching on employee rights . That -an employer may be
faced with unfair labor practices because of normal action
taken by him during the course of a union campaign or
during the pendency of an election is always a possibility.
Such occasions are fraught at time with controversy and
misunderstanding . But so is all human action . That is why
we have courts and adjudicative bodies to remedy unlawful
conduct and to acquit innocent citizens of baseless accusa-
tions. The possibility of being subjected to unfounded litiga-
tion is a risk with which all in a democratic society must live.
However, that risk is not a ground for exemption from one's
statutory obligations or for infringement or the statutory
rights of others.
For these reasons, where action normally restraintful of
employee rights is taken by an employer , such as the depri-
vation of expectable employee benefits , as a declared conse-
quence of employee union activity , the employer must, if he
would defend it, demonstrate the existence of reasonable
ground for the action and his good faith in taking it. For if
an employer is to be permitted to deprive employees of
increased wages which he would otherwise have given them,
solely because they engaged in legitimate union activity, it
seems only fair to require that he show a substantial , objec-
tive, and overriding necessity for the action.
It appears to me from a study of the case law that , though
their language is not unvaryingly clear , this is the standard
which , consciously or unconsciously , the Board and the
courts have sought in the type of situation presented here.
To summarize it: where an employer announces to employ-
ees that he is denying them a wage increase because of a
union organizational drive or pending election, he must
show substantial objective ground for the necessity of the
action in his particular circumstances and in addition show
that he acted for that reason ; otherwise the withholding
action may be, as was held by the Court of Appeals for the
Second Circuit in Federation of Union Representatives (ILG-
WU), v. N. L.R.B., 339 F .2d 126 , 129 (1964), "necessarily
coercive, regardless of the good faith of the employer." The
guiding principle would thus be that , where there is no
established bargaining representative of the employees,
withholding of employment benefits because of a union
campaign or the pendency of a representation proceeding
is an unfair labor practice unless the employer establishes
that the withholding was based on reasonable apprehension
that granting of the benefits mi ght imminently result in the
filing of unfair labor practice c arges.
Among the recent pronouncements by the Board as to the
duty of an employer in a representational situation is the
case of The Gates Rubber Co., 182 NLRB No. 15. There, in
finding that an employer violated Section 8 (a)(1) of the Act
and interfered with free employee choice by withholding
wage increases from print shop employees during the pen-
dency of an election , the Board said:
It is uncontradicted that unit employees expressed a
keen interest in the timing of the wage increase, and it
is undisputed that , were it not for the union election,
the print-shop employees would have received the wage
increase comparable to and at the same time as that
negotiated by the Respondent and the Rubber Work-
ers [for other employees ]. In these circumstances neu-
trality is not maintained by an announced withholding
of a wage increase because of a pending Board-con-
ducted election . It is well settled that the employer's
legal duty is to proceed as he would have done had the
union not been on the scene . Here the Respondent
withheld increases which would normally have been
granted but for the presence of the Union and penden-
cy of the election and advised employees that their
wage increases were being withheld for this reason. But
such conduct the Respondent violated Section 8(a)(1)
and interfered with employee free choice.
This follows precedent established in prior cases . See, for
example, McCormick Longmeadow Stone Co., 158 NLRB
1237.
In the later case of Safeway Stores, Inc., 186 NLRB No.
131, the Board affirmed the Trial Examiner 's finding of
unfair labor practice in the employer 's cancellation, in ac-
cordance with company policy , of a previously approved
pay increase for an employee because a petition for an
election had been filed . With respect to the Company's
contention that it took the action because it feared that it
might be accused of "attempting to buy off the em ployees;"
the Board adopted the following language of the Trial Ex-
aminer:
Undoubtedly there will be situations where an em-
ployer who grants raises in a pre-election period in
conformity with past practice will face groundless
charges of the commission of unfair labor practices. As
the Supreme Court has observed , however : "Law suits
also often rove to have been groundless ; but no way
has been discovered of relieving a defendant from the
necessity of a trial to establish the fact "2 But in the final
analysis, the employer has no real dilemma ; all that the
law asks is that he conduct his business as he would if a
union were not in the picture . "As the Board has held, an
employer confronted with a union organizing campaign
should decide the question of granting or with-
holding benefits as he would if a union were not in the
picture ; if his course of action is prompted by the
Union's presence , he violates the Act." The May De-
partment Store Company, 174 NLRB No. 109; Gates
Rubber Company, 182 NLRB No. 15.
1 Myers, et al v. Bethlehem Shipbuilding Corp., 303 U .S. 41, 51-52.
See also Dan Howard Mfg. Co., 158 NLRB 805, 813, enfd.
390 F .2d 304 (C.A. 7).
These principles have not been mechanically applied,
however. Where there were demonstrably reasonable
grounds for the employer's action , the cases appear to re-
flect a consistency in absolving the conduct. Since the stan-
dard presents essentially a factual determination, the
decisions are sometimes ambiguous , and occasional differ-
ences between the Board and the courts are evident . Never-
theless, on the whole the cases appear reconcilable with the
principle that , absent establishment of good -faith apprehen-
sion based on reasonable ground for concluding that grant-
ing of wage increases or other benefits might result in the
filing of unfair labor practice charges, withholding of them
because of a union campaign or pendency of a representa-
tion proceeding is an unfair labor practice.
Among the factors which , generally in combination with
others , have been held to justify the employer 's conduct are
the following : the employer acted on advice of counsel
(Standard Coil Products, Inc., 99 NLRB 899; however, cf.
Great Plains Steel Corp., 183 NLRB No. 96 ; The Great A &
P Tea Co., Inc., 166 NLRB 27); where increases were post-
poned only and not denied (Uarco Inc., 169 NLRB 1153;
Montana Lumber Sales, Inc., 185 NLRB No. 12; Dorn's
Transportation Co., 405 F .2d 706 (C.A. 2); where the union,
in initiating a campaign , wrote the employer threatening to
file unfair labor practice charges if the employer took action
affecting personnel (Newberry Co., 442 F .2d 897 (C.A. 2);
where charges had been previously filed against the employ-
er for giving wage increases during a union campaign (The
Great Atlantic YPacific Tea Co., Inc., 192 NLRB No. 83;
GAF CORPORATION 545
Winston Heat Treating Co., 422 F.2d 845 (C.A. 6)); where
the employer's reason for withholding was that he was re-
quired to bargain with the union on the subject, and later
made a contract with the union incorporating the deferred
benefits (Crosby Chemicals, Inc., 274 F.2d 72 (C.A. 5));
where the wage increases involved were merit increases
based on individual achievement and not a general increase
applicable to all employees (Sahara-Tahoe Hotel, 173
NLRB 1349). However, Cf. Federation of Union Representa-
tives, supra.
5. Conclusions as to the Respondent's motivation and
as to the existence of reasonable
cause for its action
When the Respondent's action here is evaluated in the
light of these principles the conclusion must be that the
Respondent's denial of wage increases to the guards consti-
tuted, in the circumstances , a violation of Section 8(a)(1)
and (3) of the Act. The reasons for this conclusion are as
follows:
1. There is no probative evidence to the effect that the
Respondent's motivation in canceling the wage increases
was fear of unfair labor practice charges or other legal ac-
tion . No one testified to that effect . Neither of the
Respondent's witnesses , Plant Personnel Manager Eschle
nor Plant Security Chief Elsner , made the decision to can-
cel. Eschle's testimony indicates that the decision was made
by the Respondent's corporate director of labor relations.
According to Eschle's further testimony, several days before
the second meeting of employees , he was called to a meeting
of higher management in New York City, told that the
increase would not be granted , and given the written state-
ment to read to the employees. The name of the individual
who gave him the instruction and the statement is not dis-
closed . Other than the hearsay and self-serving declarations
in the written statement, there is no evidence as to the
Respondent's motivation for canceling the increase. The
statement alone , unaccompanied by testimony as to the
basis for the cancellation , is not sufficient evidence of moti-
vation to warrant the conclusion that the Respondent acted
for the reasons it asserts.
2. There is no evidence in this record to the effect that the
Respondent relied on advice of counsel.
3. But, whether pursuant to advice of counsel or not, the
evidence , in my opinion , requires the conclusion that the
Respondent's motivation was discriminatory . Its testimony
is inconsistent with the conclusion that in canceling the
increase it was animated solely by desire to avoid charges
of attempting to bribe or influence employees . It will be
recalled that Plant Personnel Relations Manager Eschle and
Security Chief Elsner testified that one of the reasons for
holding the first meeting was to advise the employees that
approval had been secured for the 6 per cent increase track-
ing the raise given the production and maintenance employ-
ees. This increase was paid to the employees by the
Respondent . If the Respondent had been concerned about
charges of bribery or influence in connection with the
March raises , it should have been equally concerned about
the February raises . This would be true even if the
Respondent 's testimony were accepted to the effect that the
March raises were only being recommended and not prom-
ised . There is no explanation for this contradiction. Since
the Union's petition was filed on February 5 , 1971-the
date of the first meeting-it seems unlikely that the employ-
ees would actually have received the February increases in
their paychecks before the Respondent decided to cancel
the March increase . Hence that could not have been the
reason for the distinction. But whatever the reason, the
conclusion must be that with respect to the 6 per cent raise
the Respondent chose to risk charges that it was attempting
to influence employees, while it assertedly would not risk
them with respect to March 1 increase. Concern over
charges could thus not have been the reason for the cancel-
lation of the March raises. The only other conclusion possi-
ble from the evidence is that the Respondent was displeased
with the organizational activity.12
4. The raises were not merely postponed; they were de-
nied-that is, canceled. No suggestion was made to the
employees at any time to the effect that once the representa-
tional problem was out of the way the Respondent would
grant or resume consideration of the increases. To be sure,
once the Union was certified the Respondent was under a
duty to bargain about the increases, but what is significant
is that the Respondent gave no hint when canceling the
increases to the effect that its action was merely a deferral
of its intention and not a final rejection of the matter. If the
Respondent's motivation had been legitimate it would seem
to me that it would have assured the employees that the
action was only temporary and not an unconditional depri-
vation of the increase. In view of the Respondent's conten-
tion that the increase was merely under consideration, the
use of the language of denial, rather than of deferral or
postponement of consideration , seems to maximize the psy-
chology of loss. In the circumstances, it appears of some
significance that the statement contains no words of hope
for the future, no assurance that the Respondent's action
should not be interpreted as indicating the Respondent's
attitude toward the guards' action in seeking a bargaining
representative, or declaration that the employees could feel
free to make their choice without reprisal by the Respon-
dent.
5. No specific factual basis is given by the Respondent for
its asserted apprehension that the Respondent would be
subject to legal action if the raise were granted. As we have
seen, it is not enough that there be such an apprehension (as
to which there is no satisfactory evidence here), but that it
be a reasonable one in the circumstances. Employees can-
not be left in fear of the loss of employment benefits for
having exercised their guaranteed statutory rights merely
because an employer concludes, without objective warrant
and however hysterically, that he might be the subject of
unfair labor practice charges if he grants a contemplated
wage increase. If he may do so, the guarantees of the statute
assuring employees of their freedom to exercise their self-
organizational rights are hollow indeed. Every union cam-
paign or representational proceeding presents a possibility
of the employer being faced with unfair labor practice
charges for taking personnel action. If that possibility per-
mits the denial of wage increases an employee would be
foolhardy indeed to opt for representation. The present case
is a vivid example of the hazard. Since March 1, 1971, when
the raises were to be effective, guards who had been em-
ployed for more than 90 days have lost over 23 per cent of
their wage scale, $.68 per hour, as a consequence of the
cancellation. Assuming a 40-hour workweek, the loss to
12 Early in January 1971, Guards Rice and Richards , representing the
guard force , wrote to the president of the Respondent outlining various
grievances of the guards-including their pay . About 2 weeks later Plant
Personnel Manager Eschle met with Rice and Richards about the letter, at
which time the two employees gave Eschle a list of the guards' requests,
including pay. According to Eschle , Rice and Richards told him at that time
that they were not interested in "outside representation ." The Respondent's
professed motivation being unsupported by the evidence, and apparently
contradicted by the facts, this incident provides the only other clue to the
basis for the action.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date (January 10, 1972) amounts to more than $1,200 per
employee. It is doubtful that this sum would be recoverable
retroactively by agreement with the bargaining representa-
tive , even if it be assumed that the Respondent would
agree . 13 As of this time wage control guidelines would seem
to preclude approval of such an agreement . 14 If the
Respondent 's position as to the legality of its action were to
prevail, the resulting discouragement of union organization
is apparent.
I therefore conclude : ( 1) that there is no substantial evi-
dence establishing that the Respondent 's motivation in de-
nying the increases was to avoid charges of influencing or
bribing employees and (2) from the available evidence, that
the Respondent's purpose was not to avoid such charges but
more probably to place the onus on the Union for the loss
of the increase.
6. Alternative findings
1. In any event , even if the denial or cancellation were
motivated solely by the Respondent's genuine concern over
the possibility of legal action arising from a grant of the
March wage increase , I would still find it to be in violation
of Section 8(axl) and (3). This for the reason that the Re-
spondent has shown no objective basis or necessity warrant-
mg apprehension on its part, and arising out of its
experience , that granting of the increase would result in
charges . The record discloses no reasonable basis for an
unfair labor practice or other charge against the Respon-
dent if it had executed the March increase , as it did the
February 1 increase . Consequently, the cancellation had the
inevitable tendency in the circumstances to interfere with
and restrain employee freedom to choose whether to desig-
nate a bargaining representative , whatever the
Respondent's actual motive. To repeat what the court of
a peals said in the Federation of Union Representatives case,
339 F.2d 126, 129 (C.A. 2): The cancellation was "necessar-
ily coercive, regardless of the good faith of the employer."
2. Up to this point the conclusions have been based on
the finding that the employees were definitely promised the
March raise at the first meeting in February. My ultimate
conclusions would be the same, however, even were Ito find
that the employees were merely told that the increases had
been recommended by Plant Personnel Relations Manager
Eschle and required approval by higher management. In my
view a failure to continue processing the recommendation
would be as restraintful as a revocation of an actual increase
and equally a discouragement of union affiliation. This
would be so even if it could not be found definitely on this
record that the increase would otherwise have been granted.
For it is not necessary to establish with philosophical cer-
tainty that a wage loss would have resulted from the imposi-
tion of a discriminatory or coercive employment policy
before the policy can be found to be an unfair labor prac-
tice. The sign on the plant gate "Skilled machinists wanted.
Union men not hired ' establishes an unlawful hiring policy.
Rejection of qualified union applicants in pursuance of the
policy is not a prequisite to a finding of illegality in its
creation and existence . Whether a union man who the em-
ployer would have hired but for his affiliation was thus
deterred from applying and consequently lost wages as a
result of the policy, and whether that issue should be litigat-
13 Not a likely assumption since the Respondent's position is that it did not
definitely promise the increase.
14 See 78 Labor Relations Reporter 209, et seq. (November 15, 1971), 78
Labor Relations Reporter 332 (December 27, 1971); 79 Labor Relations
Reporter 21, et seq. January 10, 1972).
ed in the hearing on the complaint or instead in a latter
backpay hearing are separate and independent questions
not needed to be resolved here. The persons who were the
subjects of the discrimination in this case are already em-
ployees of the Respondent and identified. Even if Eschle's
action constituted only a recommendation, a sufficient
foundation has been laid as to the possibility of a wage loss
as to warrant an order that the employees be reimbursed for
any such losses, the actual occurrence of which can then be
litigated in a backpay hearing if there is disagreement as to
the fact of loss. The formal recommendation of the
Respondent's plant personnel manager, based on a survey
designed to equalize the Respondent s pay scale with others
in the area, forwarded to higher management, and simulta-
neously announced in a series of meetings with all the em-
ployees, is an adequate foundation for a make-whole
remedy. It seems unlikely that Eschle would have called the
meetings and made the announcement in such detail, unless
the proposal had already been approved or unless he felt
that there was substantial likelihood that it would be. In
any event Eschle's testimony indicates that higher
management's attitude toward the increase was favorable,
warranting the conclusion that approval would likely have
followed in the ordinary course of events. Thus he testified
on direct examination as follows:
Q. Prior to your calling this meeting number two-
this will be between meeting number one and meeting
number two, had you received word from management
relating to this recommendation?
A. Not a final word but I had received an indication
that it was pretty favorably looked upon because of the
justification that went along with it, namely, the survey.
Assuming, then, that the increase had only been recom-
mended, a prima facie case of likely approval of the rec-
ommendation-and consequent wage loss-has been made
out, sufficient to warrant a reimbursement remedy. The
burden would be on the Respondent to show in a backpay
proceeding at a later stage that the recommendation would
not have been approved for valid nondiscriminatory rea-
sons. Since I have found that the increase was in fact grant-
ed, those considerations would be applicable only in the
event that that conclusion is deemed erroneous.
7. Final conclusion
It is therefore found that regardless of whether Eschle's
announcement at the first series of meetings constituted a
promise of the March pay increase or instead was only
notification that he had recommended the increase , the de-
nial or cancellation of the increase constituted a violation
of Section 8(a)(1) and (3) of the Act.
This conclusion is not affected by the fact that the record
contains no other evidence of company hostility to the Un-
ion and that the pay increase involved was not a periodically
expectable one. As has been seen, even if the cancellation
was in the good-faith belief that the action was necessary to
protect the Respondent from the filing of charges if it grant-
ed the increase, that is not an adequate defense in the cir-
cumstances. That the increase was not one periodically
expectable is of no materiality. Coercion by the denial of
wage increases or other benefits is unlawful regardless of
whether they are unusual , atypical, and discretionary or
instead normal, periodic, and automatic. Thus the principle
is applicable to the withholding of merit increases (Federa-
tion of Union Representatives, 142 NLRB 82, 113 enfd. 339
F.2d 126 (C.A. 2); to fringe benefit improvements designed
to match area standards (Agawam Food Mart, et al., 158
NLRB 1294, enfd. 386 F.2d 192 (C.A. 1); and to raise prom-
GAF CORPORATION 547
ised a single employee . (Safeway Stores, Inc., supra, 186
NLRB No. 131).
CONCLUSIONS OF LAW
1. By canceling or withdrawing a wage increase for the
Respondent's guards and security officers at the
Respondent's Linden, New Jersey, plant because the Union
had filed a petition with the Board for a collective-bargain-
ing election among the employees, the Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
2. By refusing to bargain collectively with the Union the
Respondent engaged in unfair labor practices within the
meaning of Section 8 (a)(1) and (5) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Havin found that the Respondent violated Section
8(a)(1), (3), and (5) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
1. The Respondent will be directed to bargain collectively
with the Union and to sign any agreement reached.
2. The Respondent will be directed to reimburse the
guards and security officers at the Linden, New Jersey,
plant for loss of wages incurred by reason of the
Respondent's discrimination against them by paying to
each of them the amount of the canceled wage increase
beginning with the date of March 1, 1971, plus interest at
the rate of 6 per cent per annum. Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I issue the following recommended:15
ORDER
GAF Corporation, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Canceling or withholding the granting, processing, or
consideration of legitimately motivated wage increases or
other employee benefits because a petition has been filed for
a collective-bargaining election among its employees, or
because employees have otherwise engaged in union or con-
certed activities for the purposes of collective bargaining or
other mutual aid or protection. This order is subject to the
Respondent's obligation to deal with bargaining representa-
tives of its employees.
(b) Refusing to bargain collectively with Local 53, Inter-
national Union of Police and Protection Employees, IWA,
as the exclusive representatives of its employees in the fol-
lowing appropriate unit:
All guards and security officers employed at the
Respondent's Linden, New Jersey plant, but excluding
office clerical employees, professional employees, aIl
supervisors as defined in the Act, and all other employ-
ees.
(c) In any like or related manner discouraging member-
ship in a labor organization or interfering with, restraining,
or coercing employees in the exercise of rights guaranteed
by Section 7 emp
loye s
Act.
2. Take the following affirmative action effectuating the
policies of the Act:
(a) Pay to guards and security officers at the Linden, New
Jersey, plant the amount of money each has lost since
March 1, 1971, by the Respondent's cancellation or with-
drawal of the wage increase, plus interest at 6 percent.
(b) Upon request bargain collectively with the Union as
the collective-bargaining representative of the guards and
security officers in the appropriate unit and, if an under-
standing is reached, embody such understanding in a signed
agreement.
(c) Post at its Linden, New Jersely, plant copies of the
attached notice marked "Appendix." 6 Copies of said notice
on forms provided by the Regional Director for Region 22,
after being 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 Respondent to ensure that such notices are not
altered, defaced, or covered by any other material.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amounts of backpay due under the terms of this
recommended Order.
(e) Notify the Regional Director for Region 22, in writing,
within 20 days from receipt of this Decision, what steps the
Respondent has taken to comply herewith.''
15 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
16 In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
17 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 22, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify all employees that:
WE WILL NOT cancel or withhold wage increases or
other employee benefits, or refuse to process or consid-
er wage increases or benefits, because a petition has
been filed with the National Labor Relations Board for
a collective-bargaining election among our employees,
or because employees have otherwise engaged in con-
certed activities for the purpose of collectivebargaining
or other mutual aid or protection.
WE WILL pay all guards and security officers at one
Linden plant the amount of money they lost by cancel-
lation of the wage increase in February 1971. The in-
crease will be paid retroactive to March 1, 1971, with
6 percent interest.
WE WILL, upon request, bargain collectively with Lo-
cal 53, International Union of Police and Protection
Employees, IWA, as the bargaining representative of
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the guards and security officers at the Linden plant
and, if an understanding is reached , we will sign an
agreement with the Union . The bargaining unit is:
All-guards and security officers employed at the Lin-
den, ew Jersey plant , but excluding office clerical
employees , professional employees , all supervisors as
defined in the Act, and all other employees.
WE WILL NOT interfere with , restrain , or coerce em-
ployees because they join or support a union or seek a
collective-bargaining election.
Dated By
(Representative) (Title)
GAF CORPORATION
(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any 9uestions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building, 16th Floor, 970
Broad Street , Newark, New Jersey, 07102, Telephone 201-
645-2100.