183 N.L.R.B. 602 (N.L.R.B. 1970)

J. J. Newberry

National Labor Relations Board - Board DecisionsJun 18, 1970

183 N.L.R.B. 602 (N.L.R.B. 1970)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. J. Newberry and General Drivers and Helpers Union Local No. 554 Affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Peti- tioner . Cases 17-CA-4084 and 17-RC-6085 IT IS FURTHER ORDERED that the election con- ducted herein on September 5, 1969, be, and it hereby is, set aside. [Direction of Second Election4 omitted from publication. ] June 18, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On April 16, 1970, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled consolidated proceeding, finding that the Respond- ent had engaged 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 Decision. In addition, the Trial Examiner found that the Respondent had engaged in objectionable conduct prior to the election held in Case 17-RC-6085 and recommended that the said elec- tion be set aside and a new election ordered. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with 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 powers in connection with these cases to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner 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, the brief, and the entire record in these cases, and hereby adopts the findings,' conclusions,' and recommendations' of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, J. J. Newberry, Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. ' Respondent's exceptions directed to the credibility resolutions of the Trial Examiner are without merit The Board will not overrule the Trial Ex- aminer's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they are incorrect On the entire record, such a conclusion is not warranted herein Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) 2 In adopting the Trial Examiner' s conclusion concerning the interroga- tion of employee Larsen about a week prior to the September 5 election, we do not rely as he did on Struksnes Construction Co , Inc , 165 NLRB 1062 Our decision in that case is concerned with an employer's poll of his employees to determine the truth of a union's claim of majority status, and does not pertain to the situation herein in which an individual is inter- rogated as to his union activities or sympathies for legitimate purpose See Bill Pierre Ford, Inc, 181 NLRB No 155, fn 1 ' We do not adopt the Trial Examiner's gratuitous comments in fn 18 of 'tis Decision 4 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Etcelstor Un- derii ear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, con- taining the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 17 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be-aranted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the elec- tion whenever proper objections are filed TRIAL EXAMINER'S DECISION and REPORT ON OBJECTIONS JOSEPH I. NACHMAN, Trial Examiner: This proceeding tried before me at Omaha, Nebraska, on March 5, 1970, with all parties present, involves a complaint,' pursuant to Section 10(b) of the Na- tional Labor Relations Act, as amended (herein the Act), alleging that J. J. Newberry (herein Respond- ent or Company), in the course of an organiza- tional campaign by General Drivers and Helpers Union Local No. 554, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Union), interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. Respondent by answer ad- mitted certain allegations of the-complaint, but de- nied the commission of any unfair labor practice. Consolidated for trial with the unfair labor practice proceeding were objections by the Union to conduct affecting the results of an election conducted ' Issued January 16, 1970, on a charge filed and served September 22, 1969 183 NLRB No. 69 J. J. NEWBERRY among Respondent's employees on September 52 in an appropriate unit.3 For reasons hereafter stated, I find and conclude that the evidence sustains certain allegations of the complaint and an appropriate remedial order should issue. As the events forming the basis for that conclusion occurred between the filing of the representation petition and the date of the election,' it will also be recommended that the September 5 election be set aside, with a new elec- tion to be conducted when the Regional Director deems it appropriate. At the trial the parties were represented by their respective counsel and were afforded full opportuni- ty to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. Oral argument was waived. Briefs submitted by the General Counsel and Respondent have been duly considered. Upon the pleadings, stipulations of counsel, evidence, including my observation of the demeanor of the witness, and the entire record in the case, I make the following: FINDINGS OF FACT5 Background Respondent operates a national chain of retail stores. To supply these stores with inventory, Respondent operates five warehouses in various ci- ties, including one in New York and one in Omaha, Nebraska, the latter being involved in this proceed- ing. At the Omaha warehouse, Edward Romine is warehouse manager and the highest representative of management permanently assigned to this facili- ty. Shortly after the Union began its organizational campaign, it sent a letter to Respondent, dated May 1, advising that the Union was engaged in such a campaign and that when it received sufficient sup- port from the employees it would file a petition with the Board for an election. The aforesaid letter further stated: You are further advised that, pursuant to the Natio,,al Labor Relations Act, as amended, during the period of organization of em- ployees, an employer may not discriminate against such employees as to terms and tenure of employment because they desire to form, join or assist a labor organization. If any such discrimination occurs, prompt action will be taken by the Union filing unfair labor practice charges with the ... [Board] for violation of any of the protected rights of employees under ' This and all dates hereafter mentioned are 1969 , unless otherwise in- dicated 'The chronology of events in the representation case follows May 7, representation petition filed, August 7, Decision and Direction of Election, September 5, election conducted-tally of ballots shows that of approxi- mately 40 eligible voters, 13 votes were cast for the Union, 18 against, and 13 ballots were challenged, September 12, Union files and serves Employer with objection to conduct affecting the results of the election, and January 21, 1970, Regional Director's Decision on challenges and objections held 603 the Act. We hope this will not be necesary, and that during this period the rights of all parties will be protected. The evidence is uncontradicted that, upon advise of counsel, Warehouse Maager Romine posted the above letter on the bulletin board in the employees' lounge shortly after its receipt and it remained so posted until after the September 5 election. Warehouse Manager Romine testified that it has been longstanding company policy that when appli- cants for employment are initially interviewed they are told that approximately 30 days after employ- ment they will be given an evaluation interview to determine whether they are progressing satisfactori- ly and whether job reassignment might be desirable. In addition, Romine testified, employees are given an evaluation interview twice yearly (as close as possible, to each 6 months), at which time it is determined whether the employee is properly per- forming his- or her duties, and whether an increase in compensation is warranted. Romine admitted that an employee who performs satisfactorily in all aspects of his work could reasonably expect a wage increase, and if it was not given, the reason for withholding it would be given the employee at the time of the interview. According to Romine, this policy was fully explained to new employees at the time of hire. Romine admitted that upon receipt and posting of the Union's May 1 letter, he suspended all interviews of employees under the policy above mentioned because he was advised by counsel that the granting of wage increases during the Union's organizational campaign would be an unfair labor practice, and hence the interview would serve no purpose. The evidence is also uncontradicted that Respon- dent has for some years maintained a pension and insurance plan for the benefit of its employees. The plan is voluntary and only those employees with 5 or more years' service who elect to be under the plan are subject thereto. Each year the Company's main office in New York sends the Omaha warehouse manager, for distribution to his em- ployees subject to the plan, slips showing the em- ployees' contribution to the fund and the amount of insurance for their benefit. Current Facts 1. Robert Povich, a University of Nebraska stu- dent, was hired by Romine for general warehouse work. Povich reported for work on June 2 and left on September 10 to return to school. On or about July 2, Povich went to see Romine and asked that four challenges be overruled, the remaining nine sustained, and, as the four challenged ballots could not be decisive, directed a hearing on Objec- tions 1, 2, and 4, consolidating same with the unfair labor practice case ' The period regarded by the Board as the critical period See The Ideal Electric and Manufacturing Cant pant, 134 NLRB 1275, 1278 No issue of commerce or labor organization is presented The com- plamt,answer, and stipulations admit facts which establish these jurisdic- tional elements I find these facts to be as so established 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether he was going to get a raise or not.6 Romine replied that he couldn't give a raise to anyone because the Union "had his hands tied." When Povich expressed doubt about the accuracy of Romine's statement, the latter showed Povich a copy of the Union's May 1 letter and again ex- plained, in substance, that he could not grant raises because of the Union's letter.7 In the latter part of August, Povich and several of his fellow employees, who were also college students, went to see Romine and asked if they could have a raise for the last few weeks before they returned to school. Romine again stated that he could not grant the raise because "the Union had his hands tied," but sug- gested that, since Company Attorney Tate was in the building, he would call the latter in to explain why the requested raise could not be granted. At- torney Tate then explained to the men that because of the Union's May 1 letter Respondent would not review employees for possible wage increases.8 2. About a week prior to the September 5 elec- tion, employee Larsen was called to Manager Romine's office. Romine stated to Larsen that he had heard she was for the Union, to which she replied that she was for it if it would bring her better wages and working conditions. Romine then told Larsen that he knew she "deserved a raise," but that his hands were tied because wages were "froze till the Union was settled." 9 3. Employee Lindquist credibly testified that on or about September 3 she was called to Romine's office and told, inter alia, that she "had a raise coming but they weren't allowed to give any raise till the Union was settled."10 4. On or about August 29, employee Taylor en- gaged in a conversation with General Foreman Compton, an admitted supervisor within the mean- ing of Section 2(11) of the Act.tt Compton told Taylor that Respondent was giving consideration to closing its New York City warehouse. Taylor asked why, and Compton replied, "because the Union is too demanding. "12 Contentions and Conclusions I find and conclude that Respondent violated " Povich testified that he did this because when Romme hired him he (Romine) stated that Povich would be considered for a wage increase at the end of 30 days Romine denied that he made such a statement I find it unnecessary to resolve the conflict, because the issue is what Romine stated in the July 2 interview, and not whether he told Povich in May that after 30 days he would be considered for a wage increase ' This finding is based on the credited and uncontradicted testimony of Povich Romine did not deny that he had this conversation with Povich " Based on the credited and uncontradicted testimony of Povich, and Romine's testimony as to what Attorney Tate said on that occasion The latter did not testify H Based on the credited testimony of Larsen in this regard Romine did not deny Larsen's testimony that he opened the conversation by comment- ing that he understood she was for the Union He did deny that the subject of wages was discussed at all with Larsen I have credited Larsen in that regard because her testimony is consistent with what Romine told other employees on the subject of wages. Larsen also testified that in her discus- sion with Romine, the latter handed her a slip showing her status under the Section 8(a)(1) of the Act by the following con- duct. 1. Romine's statement to employee Larsen that he understood her to be in favor of the Union. While not put in the form of a question, Romine's statement placed Larsen in the position of having to declare herself as either for or against the Union. I find this to be the coercion proscribed by Section 8(a)(1). Cf. Certain-Teed Products Corporation, 153 NLRB 495, 507; Beiser Aviation Corporation, 135 NLRB 399, 400, and the cases there cited. In this sense Romine's conduct was tantamount to inter- rogation concerning her union sentiments. Moreover, nothing in the circumstances of the case justified such interrogation. The question of the Union's majority was being determined by the statutory election procedure; no assurance against reprisal was given nor was the poll by secret ballot. Struksnes Construction Co., Inc., 165 NLRB 1062, 1063; N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239 (C.A. 8). 2. Compton's statement to Taylor that Respond- ent was considering closing its New York City warehouse because the Union there was too de- manding. This statement, made just a week before the scheduled Board election at the Omaha warehouse, was plainly a threat that the Omaha warehouse might be closed if the employees selected union representation. Cumberland Shoe Company, 160 NLRB 1256, 1258; J. J. Newberry Company, 88 NLRB 947, 956. 3. Romine's statements to employees Larsen, Lindquist, Povich, and the group with the latter in August that they could not be granted wage in- creases because of the Union's May 1 letter. Respondent's argument that no violation resulted from these facts because under the Supreme Court's decision in N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, and N.L.R.B. v. Benne Katz, 369 U.S. 736, so it urges, wage increases, general or merit, granted during the course of a union campaign violate Section 8(a)(1) of the Act, and that it cannot be an unfair labor practice to refrain from doing something which, if done, would be an unfair labor practice. In my view Respondent misreads Exchange Parts and Katz. To begin with, pension and insurance plan and stated, "If you joined the Union, you will lose that " Romine denied that he made such a statement In my opinion the General Counsel has failed to prove by a preponderance of the evi- dence that Romme made the statement attributed to him by Larsen I am persuaded by the fact that although Romine distributed such slips to ap- proximately 25 employees, the, General Counsel offered no testimony that such a statement was made to any other employee. Indeed, while em- ployee Lindquist testified that she was given such a slip by Romme, she gave no testimony that a similar remark was made to her I deem it highly improbable that Romine when he passed out the slips would have re- served his remarks about losing the benefits of the pension only for Larsen 1O Based on the uncontradicted and credited testimony of Lindquist Romine did not deny that statemen " Respondent's answer denied the supervisory status of Compton and Romine However, at the trial Respondent stipulated that such was a fact. 12 Based on the uncontradicted and credited testimony of Taylor Comp- ton did not testify J. J. NEWBERRY Katz deals only with a situation where the employer is under a duty to bargain with a union. As yet, Respondent is under no such duty. Moreover, in Katz the Supreme Court very carefully pointed out that the unilateral merit increases there involved would not have been violative had they been granted "in line with the Company's long-standing practice of granting ... merit reviews-[which] in effect, were a mere continuation of the status quo ."369 U.S. at 746. And in Exchange Parts the Court stated the issue before it, and the question it was deciding, as being whether Section 8(a)(1) of the Act "prohibits the conferral of ... benefits, without more, where the employer's purpose is to ef- fect the outcome of the election." (375 U.S. at 406; emphasis supplied.) There is, therefore, nothing in either Katz or Exchange Parts to support Respond- ent's contention that a wage increase granted dur- ing a union 's organization campaign is without more, a violation of Section 8(a)(1) of the Act.'3 On the contrary, the Board, relying on N.L.R.B. v Exchange Parts Co., supra, and Russel Newman Mfg. Co., Inc. v. N.L.R.B., 370 F.2d 980 (C.A. 5), made it clear that before the conferral of benefits during the pendency of an election may be found to violate Section (a)(1) of the Act, there must be a finding that such benefits were granted "for the purpose of inducing employees to vote against the Union." Tonhawa Refining Co., 175 NLRB 619. See also Field Container Corporation, 178 NLRB 536. An employer faced with a decision as to whether to grant or withhold benefits during a representa- tion proceeding is not, as Respondent argues, presented with a "Hobson's choice." His legal duty in such a situation is clear and normally devoid of difficulty. For as Trial Examiner Reel, with Board approval, wrote in McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1242: An employer's legal duty in deciding whether to grant [or withhold] benefits while a representation case is pending is to determine that question precisely as he would if a union were not in the picture. If the employer would have granted the benefits because of ... cir- cumstances unrelated to union organization, the grant of those benefits will not violate the Act. On the other hand, if the employer's course is altered by virtue of the presence, then the employer has violated the Act, and this is true whether he confers benefits because of the union or withholds them because of the union . [Emphasis supplied.] " The remaining cases cited at p 12 of Respondent 's brief likewise do not support its contention In each of them there was a finding that the benefit involved was conferred for the purpose of influencing the outcome of an election or defeating the Union's organizational campaign The one case cited by Respondent , which may be read as supporting its position, is N L R B v Dorn's Transportation Company, Inc, 405 F 2d 706 (C A 2) Assuming that case to be indistinguishable , it is plainly contrary to Board precedent which I am required to follow until such time as the Board or the Supreme Court holds to the contrary Insurance Agents' 605 In the instant case the facts above found show that Respondent had a system for periodic review of employees that could result in wage increases to some employees, and that this system was suspended because of the Union's campaign. The suspension, therefore, not only interfered with, restrained, and coerced the employees in the exer- cise of their Section 7 rights, but discriminated against them in regard to a term and condition of their employment which discouraged membership in the Union, and therefore violated both Section 8(a)(1) and (3) of the Act. I so find and con- clude.'4 Moreover, by exhibiting the Union's May 1 letter to employees and telling them that wage in- creases could not be considered or granted because of the Union, Respondent sought to place upon the Union the responsibility for the employees not receiving increases, thus attempting to discredit the Union in the eyes of the employees and discourag- ing membership therein. McCormick Longmeadow Stone Co., Inc., supra at 1238. For, as the Court of Appeals for the Fifth Circuit held in N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006: ... [such] statements themselves "established without doubt that both in form and purpose their effect was to discourage and frustrate the statutory right of employees freely to organize and bargain collectively." I so find and conclude. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in the section hereof entitled "Contentions and Conclusions," Respond- ent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By suspending its program for periodic review because of the advent of the Union, as above found, Respondent discriminated against employees in regard to a term or condition of their employ- ment which discouraged membership in the Union, and thereby has engaged in and is engaging in un- International Union, AFL-CIO (Prudential Insurance Co ), 119 NLRB 768, 773, Iowa Beef Packers, Inc. 144 NLRB 615, 616 "The complaint in this case alleges only a violation of Sec 8(a)( I) of the Act However , the evidence with respect to the suspension of its wage review plan was introduced and developed by Respondent I find the issue to have been fully litigated, and a finding of an 8 ( a)(3)violation to be ap- propriate Moreover , even without the finding of an 8 ( a)(3) violation, an award of backpay would be appropriate as a remedy for the 8 ( a)( I) viola- tion 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fair labor practices proscribed by Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent interfered with, restrained, and coerced its employees in the exer- cise of their Section 7 rights, it will be recom- mended that it be required to cease and desist therefrom and take certain affirmative action designed and found necessary to effectuate the pol- icies of the Act. It having also been found that Respondent dis- criminated against employees in regard to a term and condition of their employment, to discourage membership in the Union, it will be recommended that Respondent grant review to each employee de- nied such review since May 1, 1969, and grant to each employee such improvement in benefits as would have been granted that employee in the nor- mal operation of its review plan, and make whole each such employee for any loss of benefits suf- fered, including any loss accruing because of a withheld wage increase, by reason of Respondent's suspension of its employee review procedure. The unfair labor practices found being of a character which go to the very heart of the policies of the Act, it will be recommended that Respond- ent be required to cease and desist from in any manner infringing upon the exercise of employee rights. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie Inc., 129 NLRB 912, 915. RECOMMENDED ORDER Upon the basis of the above findings of fact, con- clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recom- mended that the National Labor Relations Board order J. J. Newberry, its officers, agents, succes- sors, and assigns: 1. Cease and desist from: (a) Coercively interrogating employees as to whether or not they are for a labor organization. (b) Telling employees that it is considering clos- ing one of its facilities because of the demands of a labor organization. (c) Telling employees that they will not be con- sidered for review of possible improvement in 16 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 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 Na- wages and other benefits because a labor organiza- tion is engaged in an organizational campaign. (d) Discriminating against any employee regard- ing the tenure or a term or condition of their em- ployment to discourage membership in a labor or- ganization. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any and all such ac- tivities. 2. Take the following affirmative action found necessary and designed to effectuate the policies of the Act: (a) Make whole all employees for any loss they suffered by reason of its failure since May 1, 1969, to observe and continue in effect its periodic review plan, in accordance with the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copy- ing, all records necessary or useful in determining compliance with the provisions of this recom- mended Order, including, but not limited to, social security payment records, timecards, and personnel records and reports. (c) Post at its Omaha, Nebraska, warehouse co- pies of the attached notice marked "Appendix. 1115 Copies of said notice, on forms provided by the Re- gional Director for Region 17, after being duly signed by an authorized representative, shall be posted by it 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 it to in- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith. 16 REPORT ON OBJECTIONS AFFECTING THE RESULTS OF THE ELECTION Having found, as above set forth, that Respond- ent engaged in substantial violations of Section 8(a)(1) of the Act during the period between the filing of the representation petition and the elec- tion, it follows that the election held on September tional 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 " 'b In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " J. J. NEWBERRY 607 5, 1969, in Case 17-RC-6085, must be set aside, and I so recommend . Dal-Tex Optical Company, Inc., 137 NLRB 1782; Leas & McVitty, Incor- porated, 155 NLRB 389; L. B. Foster Company, 168 NLRB 83, enfd. 418 F.2d 1 (C.A. 9), cert. denied 73 LRR 263, March 23, 1970." Accordingly, it is further recommended that Case 17-RC-6085 be remanded to the Regional Director of the Region 17 for the holding of a new election at such time as he deems the circumstances will permit the em- ployees to freely express their wishes with respect to a bargaining representative.1' 1' This conclusion makes it unnecessary to decide, as the Union (but not the General Counsel ) contends , responsible officials of Respondent, in the course of a speech to employees shortly before the election, made state- ments which affected the results of the election, and I make no finding in that regard For the same reason it becomes unnecessary to consider Respondent 's contention that it was denied a fair opportunity to procure the attendance of the officials referred to so that they might give testimony presumably denying that they made certain statements during the speech to the employees " The General Counsel makes no contention that under the Supreme Court's holding in N L R B v Gisse! Packing Compam, 395 U S 575, Respondent's unfair labor practices were of such pervasive character as to make it unlikely that their coercive effect would be neutralized by conven- tional remedies so as to insure a fair rerun election , and therefore, that a bargaining order is necessary Accordingly, t do not consider that question and recommendeddhat the case be remanded-for the holding of a new election APPENDIX NOTICE TO EMPLOYEES WE WILL NOT do anything to interfere with you in the exercise of these rights. All of our employees are free to become or remain a member of General Drivers and Helpers Union Local No. 554, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union , or not to become or remain a member of any union. WE WILL NOT tell you that we are consider- ing closing one of our warehouses because the Union in that warehouse has become too de- manding. WE WILL NOT question you as to whether you are for or against a union. WE WILL NOT cease our policy of reviewing the work of our employees at fixed intervals and granting wage increases if such are war- ranted, because a union is trying to organize our employees. As it has been found that we violated the law when we ceased reviewing our employees for possible wage increases because General Drivers and Helpers Union Local No.. 554, Af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, was trying to organize our employees, WE WILL conduct such reviews retroactively to May 1, 1969, and pay to our employees any benefits they lost by reason of our failure to conduct such reviews after May 1, 1969, including backpay, if any is due. POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD Dated By An Agency of the United States Government After a full trial in which both sides had the oppor- tunity to present their evidence, the National Labor Relations Board has found that we, J. J. Newberry, violated the National Labor Relations Act, and ordered us to post this notice. We there- fore notify you that: The Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. J. J. NEWBERRY (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.