Keller Columbus, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 723 (N.L.R.B. 1974)

KELLER COLUMBUS, INC.
Keller Columbus , Inc. and International Union of Elec-
trical, Radio and Machine Workers and its Local
745, AFL-CIO-CLC. Cases 9-CA-8300 and
9-RC-10398
December 16, 1974
DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 13, 1974, Administrative Law Judge Ramey
Donovan issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting 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 at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge only to the ex-
tent consistent herewith and to adopt his recommended
Order,' as modified herein.'
The Administrative Law Judge found that a com-
pany rule against solicitation and distribution of litera-
I Chairman Miller dissents only from that part of the remedy which would
require Respondent to place into effect certain benefits and to pay an un-
specified amount of wage increases to the employees.
That remedy is not appropriate here, in his view, for two reasons: (1) the
amount of the wage increase is speculative and he believes that part of the
remedy to be unenforceable; and (2) the majority is in the anomalous posi-
tion of requiring Respondent to pay an increase and to grant benefits which
it had found were illegally motivated.
Chairman Miller agrees that the totality of Respondent's conduct in first
announcing an increase in wages and a changed schedule of hours which
were discriminatorily motivated, and then compounding that offense by
announcing to employees, in effect, that it was the Union which had pre-
vented them from receiving the benefits they might have had, plainly adds
up to a course of conduct which violates Sec. 8(a)(1).
But the Board's remedies are designed to restore the status quo which
would have prevailed if the unlawful acts had not been committed. Had
there been no unlawful conduct here, the benefits in question would have
been neither announced nor withdrawn, and thus the remedial order of his
colleagues does not restore the status quo ante. Instead it restores the status
quo after one of the illegal acts ; i.e., the unlawful announcement of the
benefit. That seems to him to be unwarranted.
Rather, the sin which needs to be expunged here is the game playing with
announcements both of instituting and "withdrawing" benefits for the pur-
pose of discouraging union membership and of improperly interfering with
employee freedom of choice. The only proper order, in his view, ought, in
no uncertain terms, prohibit Respondent from doing so again . That should
be sufficient to correct the evil, without granting the employees the highly
questionable windfall of an illegally motivated increase.
2 Chairman Miller has dissented from certain of the affirmative aspects
of the remedy on the grounds: (1) the amount of the wage increase promised
the employees is speculative and unenforceable; and (2) it is anomalous to
require Respondent to pay an increase and grant benefits which are found
to have been illegally motivated. Members Jenkins and Kennedy do not
agree with either contention.
With respect to the first ground, the Board had, in other cases like the
present one, ordered an employer to reimburse employees for wage in-
723
ture was unlawfully broad on its face and therefore
violated Section 8(a)(1) of the Act and constituted a
valid basis for objection to the election. We do not
agree.3
In a printed company booklet distributed to em-
ployees, certain conduct is proscribed. Prohibited con-
duct includes the following:
4. Unauthorized selling , soliciting, canvassing,
or distribution of literature. [Emphasis
supplied.]
In another part of the booklet appears the following:
Solicitation:
Employees may not make solicitations for any
purpose during working time.
creases they would have received except for the employer's unlawful con-
duct in canceling them. Hendel Manufacturing Company, Incorporated 197
NLRB 1093 (1972), enfd. 483 F.2d 350 (C.A. 2, 1973); GAF Corporation,
196 NLRB 538 (1972), enfd. 488 F.2d 306 (C.A. 2, 1973). As to the amount
of the promised wage increase, Respondent's chief executive officer testified
that he had in mind granting a wage increase of from 5 to 5.5 percent. This
is sufficiently definite to remove it from the category of "speculative." The
precise amount can be determined in a backpay proceeding if the parties are
unable voluntarily to agree on a precise figure.
With respect to the second ground, the only violation the Board has found
and the only allegation in the complaint related to the withholding of the
wage increase. There was no complaint allegation that Respondent had
unlawfully promised a wage increase to employees, and the Administrative
Law Judge made no formal finding to that effect, although he expressed the
opinion obiter that it was. Accordingly, there is nothing anomalous in the
requirement that Respondent make the employees whole for the promised
wage increase unlawfully withheld.
3 Member Jenkins dissents from the finding that Respondent's solicitation
and distribution rule is not violative of Sec. 8(a)(1) and does not constitute
a valid basis for setting aside the election. In the printed company booklet
at p. 3, under the section entitled "Rules of Conduct," the following conduct
is proscribed and penalties provided therefor: "4. Unauthorized selling,
soliciting, canvassing, or distribution of literature."
As found by the Administrative Law Judge, such a sweeping rule applying
to nonworking time and to nonwork areas is clearly invalid on its face.
Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793 (1945). At p. 10
of the booklet, further reference is made to solicitation and distribution. The
majority finds that these additional statements , allegedly valid, cure the
admitted defect in rule 4. Member Jenkins disagrees. These later references
to solicitation and distribution do not appear as a rule subjecting employees
to discipline for its violation, but rather are contained in a section entitled
"General Information for Employees," and are found between paragraphs
relating to the benefits of parking and vacation. If indeed the Respondent
intended the statements concerning solicitation and distribution to be read
together with the rule, it would have included them together under the
section governing the rules of conduct. Thus, the reasoning that these later
statements must be read together with the unequivocal, self-contained, and
invalid rule seems entirely unwarranted and places an unreasonable burden
or risk on an employee who desires to exercise his Sec. 7 rights.
Furthermore, assuming , arguendo, that these statements were intended to
clarify the invalid rule, Member Jenkins disagrees with his colleagues' find-
ing that the statement relating to "working time" constitutes a valid rule.
For the reasons set forth in his dissenting opinion in Essex International
Inc., infra, he finds no valid distinction between the phrases "working time"
and "working hours." For all the above reasons, he would affirm the Ad-
ministrative Law Judge's finding that the maintenance and distribution of
rule C4 in the Respondent's booklet has an inhibiting effect on its em-
ployees' Sec. 7 rights and constitutes a violation of Sec. 8(a)(1). Moreover,
he would find, as did the Administrative Law Judge, that the existence of
the rule constituted a valid basis of objection to the election and he would
add this unlawful conduct as an additional reason for setting aside the
election and directing a second election herein.
215 NLRB No. 124
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Distribution:
Employees may not distribute literature at any
time in work areas . . .
The Administrative Law Judge found that rule 4 is
illegally broad on its face since by its terms it applies
to nonworking time and to nonwork areas, as well as
otherwise. He further found that the separate rules as
to solicitation and distribution create an ambiguous
situation and do not cure the defect in rule 4.
The separate rules with respect to solicitation4 and
distributions are valid on their face. We believe that
when rule 4 is read together with the separate rules.
with respect to solicitation and distribution, as they
must be, any ambiguity in rule 4 is removed. As read
together, therefore, we find these rules to be lawful.
Moreover, there is no evidence that the rules were en-
forced in an unlawful manner. Accordingly, we find,
contrary to the Administrative Law Judge, that the
rules are not violative of Section 8(a)(1) and do not
constitute a valid basis for objection to the election.
As we have adopted the Administrative Law Judge's
finding that Respondent violated Section 8(a)(1) of the
Act by withdrawing and withholding promised wage
increases and a 4-day, 10-hour week, we shall set aside
the election results in Case 9-RC-10398, and shall di-
rect a second election at an appropriate time.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its order the recommended Order of
the Administrative Law Judge, as modified below, and
hereby orders that Respondent, Keller Columbus, Inc.,
Columbus, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the said recom-
mended Order, as so modified:
1. Delete paragraphs 1(c) and 2(c) and renumber the
following paragraphs consecutively.
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
IT IS HEREBY FURTHER ORDERED that the election results
in Case 9--RC-10398 be, and they hereby are, set aside.
[Direction of Second Election and Excelsior footnote
omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
^ Essex International, Inc., 211 NLRB 749 (1974).
5 Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962).
After a hearing in which all parties were represented by
their attorneys and presented evidence in support of
their respective positions, it has been found that we
have violated the National Labor Relations Act in cer-
tain respects and we have been ordered to post this
notice and to carry out its terms.
WE WILL pay to our employees the wage in-
creases that we had promised to them beginning
January 7, 1974, with interest at 6 percent on the
wage increases that we have withheld since Janu-
ary 7, 1974.
WE WILL place in effect the 4-day, 10-hour
workweek that we had promised our employees
would be placed in effect on January 7, 1974.
WE WILL NOT in any like or related manner inter-
fere with our employees' exercise of rights guaran-
teed them by Section 7 of the National Labor Re-
lations Act.
KELLER COLUMBUS, INC.
DECISION
RAMEY DONOVAN, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor Rela-
tions Act, hereinafter the Act. The Union filed a charge
against Respondent corporation on February 7, 1974. The
complaint issued on March 8, 1974. On April 12, 1974, the
Regional Director for Region 9 of the Board issued, in Case
9-RC-10398, a representation case involving the same Em-
ployer and Union, an Order Directing Hearing, Order Con-
solidating Cases, Order Transferring Case To The Board, and
Notice of Hearing. This Order consolidated for the purposes
of hearing the complaint in Case 9-CA-8300 and the objec-
tions to an election held in Case 9-RC-10398 on February 1,
1974.
The consolidated case was tried before me at Columbus,
Ohio, on May 2, 1974.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is an Ohio corporation engaged in the manu-
facture of gas and electric ranges at its Columbus, Ohio
location. In a representative 12-month period, Respondent
had a direct inflow, in interstate commerce, of goods and
products valued in excess of $50,000, which it sold and
caused to be shipped from its Columbus, Ohio, location di-
rectly to points outside Ohio.
At all times material, Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
The Union, at all times material, is a labor organization
within the meaning of Section 2(5) of the Act.
KELLER COLUMBUS, INC.
Il. THE ALLEGED UNFAIR LABOR PRACTICES
In January 1973, Respondent had given its employees a
10-cent-per-hour wage increase. In July of that same year
another wage increase of 5 cents was granted. These increases
were not periodic in nature since Respondent had no stand-
ard policy as to the timing or the amount of increases. Aside
from the 1973 raises, the only prior raise referred to specifi-
cally in the record was one in November 1971. A few months
later, in October 1973, Respondent made a survey of business
in Columbus, including a comparison of pay and fringe bene-
fits paid by other employers in the area.' As a result of this
survey, Respondent concluded that its pay and fringe benefits
were in line with the prevailing wages and benefits in the area;
or, as Executive Vice President Cordial expressed it, "our pay
and fringe benefits, what have you, were pretty well on tar-
get." Respondent, therefore, at that time planned no action
regarding pay and fringe benefits.'
About February or March 1973 a suggestion had appeared
in Respondent's employees' suggestion box that Respondent
institute a workweek of four 10-hour days. Apparently, this
suggestion had the support of an undisclosed number of em-
ployees since Cordial testified,
We explored it [the 4-day-week suggestion], not seri-
ously, but we explored it and announced to the em-
ployees who were interested at that time that it just
didn't seem a practical way for us to go; so it was dis-
missed.
Thereafter, about the middle or latter part of November
1973, Cordial states that he began hearing talk of a union
among the employees. He also saw a notice of a union meet-
ing posted on the bulletin board. At this time he then began
to give serious consideration to a workweek of four 10-hour
days since "we had had employees' suggestion for quite some
time before this concerning a 4 10-hour workweek."'
By November 30, 1973, Respondent had checked with
other companies in the area that had "special workweeks,"
i.e., other than the standard 5-day week of 40 hours. Re-
spondent then decided that if 75 percent of its employees
favored a four 10-hour-day week it would institute such a
week on a test basis.
It is clear that the Respondent's favorable attitude in
November and December 1973 toward the previously re-
jected 4-day week was substantially attributable to two fac-
tors, among, possibly, others. The two factors are interrelated
and one of them was Respondent's awareness of union talk
and activity among its employees and Respondent's desire to
prevent union organization of the plant.
Cordial testified that in this period Respondent was "inter-
ested in looking at employees fringe benefits that would be
appreciated" by the employees and which might not exceed
"normal cost." The 4-day week apparently was viewed as
falling into the category of a fringe benefit that the employees
wanted and which they would appreciate in view of Cordial's
I Fringe benefits compared were life insurance, hospitalization, vacations,
pension.
2 The survey showed Respondent's average pay as 4.08 as compared to
a 4.05 average for 56 Columbus companies, including 29 nonunion compa-
nies and 27 unionized companies.
3 As we have seen , the Company had previously rejected the 4-day week
suggestion.
725
testimony that "we had had employees' suggestions for quite
some time . . . concerning a 4 10-hour workweek." To make
doubly sure that the institution of a 4-day week was some-
thing desired by the employees and which the employees
would view as a benefit granted by the Company, a survey
was taken in which more than 75 percent of the employees
would have to favor the 4-day week. As expressed by Cordial,
"In other words, we wanted to introduce this as an employee
benefit rather than a company directed change, so there was
a survey."
During this same period in the latter part of 1973, after
becoming aware of union activity among his employees, Cor-
dial not only activated the previously rejected 4-day-week
matter but also began considering a wage increase and did
promise, on December 13, 1974, the third wage increase in
12 months to its employees. Cordial admits that the union
activity was a factor in the promising of both these benefits,
the 4-day week and the wage increase. Cordial testified that
he viewed the union activity as a threat to the plant's
nonunion status since "We do not feel that a union will
serve our employees' best interests at this time."
On December 7, 1973, Cordial received a letter from the
Union stating that it was organizing the employees and nam-
ing employees who were on the organizing committee. Later,
on the same day, December 7, after receipt of the above letter,
Respondent distributed to its employees a communication or
survey, dated December 6. The subject of the memorandum
was "4 10-hour days per workweek." It was stated, inter alia,
that the Company had studied the suggestions and proposals
for a 4-day workweek and "if a 75 percent majority of our
employees favor a workweek of 4 10-hour days . . . we will
be willing to institute a `Test Program' starting January 7,
1974."
Shortly after the foregoing, Respondent on December 13
held meetings with the employees on each of the plant's three
shifts. At the meetings Cordial discussed with the employees
the 4-day week and announced "that there would be pay
increases January 7 [1974]."
The foregoing promise of a pay raise came at a time when,
according to Cordial, "[in] November and December
[1973] gas and electric range manufacturing business and gas
electric range took a drastic decline and still continuing. Na-
tional market is off some 23 percent." Although Cordial did
not tell the employees the amount of the pay raise that they
would receive, he believed "that to keep everybody happy I
was going to have come up with a pay raise" and he promised
that there would be a raise on January 7. Moreover, Cordial
admits that the presence of the Union was one of the reasons
for promising a pay increase, and it would be difficult to avoid
such a conclusion even absent an admission.
To make certain that the employees understood what had
been covered at the December 13 meetings, Respondent
posted on its bulletin board on December 14 a summary of
the previous day's meetings. Item 1 in the summary was the
4-day week and item 2 was "There will be a pay increase
effective January 7, 1974."
On December 17 Respondent posted a notice stating that
91.8 percent of the employees had, in the survey, voted in
favor of the 4-day week and that the program would go into
effect on Monday, January 7, 1974.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, on December 21, 1973, received a copy of the
petition for certification filed with the Board by the Union.
On December 26 Respondent posted a "Notice To Em-
ployees From the National Labor Relations Board." This
official notice advises the employees that a petition has been
filed with the Board and it briefly outlines employee rights
under the law as well as describing conduct that interferes
with employee rights. Described in the latter category are,
inter aka,
Threatening loss of jobs or benefits by an Employer or
a Union. Misstating important facts by a Union or an
Employer . . . . Promising or granting promotions, pay
raises, or other benefits, to influence an employee's vote
by a party capable of carrying out such promises.
On December 26, 1973, Cordial spoke by telephone with
the corporation's Labor Relations Department in Miami,
Florida.' Cordial discussed the union petition and an elec-
tion date and asked what he should do about the promised
wage increases and the 4-day week.
Cordial received a call on December 27 from Johnson of
the Company Labor Relations Department in Florida. John-
son stated that legal counsel had been consulted and had
advised that Cordial should nullify and cancel the promised
wage increases and the 4-day week, since such benefits could
be construed as illegal and objectionable conduct in view of
their origin and timing vis-a-vis the union activity 5
Respondent posted in the plant on December 27, 1973, a
letter or notice "To All Employees," signed by Cordial. The
notice stated that "a union" had filed a petition with the
National Labor Relations Board "saying that they represent
you." Cordial did not name the Union but described it "as the
same union that you overwhelmingly rejected just a year
ago." The notice stated that a National Labor Relations
Board election had been set for February 1, 1974. Cordial
expressed confidence that "you again will overwhelmingly
defeat the Union." The notice then went on to state that
because of the Union ("because the Union filed the petition"),
the Company could not place in effect the 4-day week or the
pay increase as previously promised and
We deeply regret that the Union's petition makes it im-
possible for us to do this, however for us to do otherwise
would interfere with your rights and could result in the
setting aside of the election.
By letter of December 28, 1973, the president of the Union
wrote to Cordial, stating that the Union had been informed
that the Company had previously promised its employees
that on January 7, 1974, it would institute a wage increase
and the 4-day week. The letter went on to state that the Union
had now learned that the Company had informed its em-
ployees that it would not implement the two aforementioned
benefits in view of the union petition for certification filed
with the Board. The latter characterized this action by the
Company as "prohibited" by the Act Further,
4 The parent, Keller Industries, is a nationwide organization Respondent
is a wholly owned subsidiary
This letter is to advise you that IUE-AFL-CIO-CLC
and its Local 745 does not have any objection to Keller
Columbus, Inc. instituting the 4 -day 10-hour workweek
and to granting a wage increase as you have previously
planned . . If you have any questions on this matter
do not hesitate to contact me.
In the month between receipt of the above letter from the
Union and the election on February 1, 1974, Respondent did
not institute the wage increase or the 4-day week. Nor did
Respondent contact the Union to clarify any questions that
it may have entertained regarding the import of the Union's
letter.
The election, after the challenged ballots were resolved by
stipulation of the parties, resulted in 57 votes for the Union
and 64 against the Union. On February 7, 1974, the Union
filed the instant charge and timely objections to the election.
Conclusions
In a situation such as is here presented where there is a
matter of granting wage increases or other benefits to em-
ployees, "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."6 In short, an employer is not to bestow either bene-
fits or detriments upon its employees during a union cam-
paign, if the reason for granting the benefit (or detriment) is
the presence and activity of the Union. By the same token,
benefits are not to be withheld because of the presence and
activity of a union since either the granting or withholding of
benefits because of union activity interferes with the rights
guaranteed to employees under Section 7 of the Act.
The evidence in the instant case persuades me that Respon-
dent's promise to the employees on December 13, 1973, that
it would place in effect on January 7, 1974, a wage increase
and a 4-day week was motivated in substantial part by a
desire to defeat the Union's efforts to organize the plant.
Respondent admits the foregoing motivation.
Although the complaint does not allege Respondent's
promise of a wage increase and a 4-day week as an unfair
labor practice, I am satisfied that it was and for the reasons
stated above, but I shall make no formal finding thereon in
view of the complaint. Respondent implicitly, if not ex-
pressly, admits that its conduct and promise of a wage in-
crease and a 4-day week was illegal and objectional since it
seeks to justify its subsequent withholding of the promised
benefits on the ground that fulfillment of its promise would
be illegal and objectionable.
In its brief, Respondent states: "If .. . the earlier acts
[the promising of wage increases and a 4-day week] were
unlawful, subsequent good faith efforts to remedy those acts
can hardly be deemed to have violated the law." This "clean
hands" appeal, in my opinion, is more superficial than real.
If an employer has been found to have illegally granted a
benefit to employees in order to defeat union organization,
e.g., a wage increase, neither the Board nor the courts have
ever prescribed rescission of the increase as appropriate
remedial action since such a cure would be worse that the
5 Cordial testified that until December 27 it had been his view or under- 6 The Gates Rubber Company, 182 NLRB 95 (1970), General Motors
standing that there was no inhibition on employer conduct until such time Acceptance Corp., 196 NLRB 137 (1972), McCormick Longmeadow Store
as a union petition had been filed with the Board Co, Inc, 158 NLRB 1237, 1242 (1966)
KELLER COLUMBUS, INC 727
disease Respondent's promise of a wage increase and a 4-day
week, which promise the employees had reason to rely on and
on which they undoubtedly did Iely, was in itself the granting
of a benefit Respondent's rescission of this promise, of the
benefit, on the asserted ground that the Union's filing of a
petition had necessitated the rescission , was not a good-faith
effort to remedy past illegal conduct but was rather a com-
pounding of illegal conduct and an additional illegal with-
holding of a benefit.
As I view the evidence, Respondent has withheld pay in-
creases and a 4-day week, which it had promised its em-
ployees on December 13, 1973, and had stated that the effec-
tive date of the new benefits would be January 7, 1974. Since
the reason for Respondent's withholding or withdrawing of
the benefits was the fact that there was a union in the picture,
I find that such withholding was in violation of Section
8(a)(1) of the Act.
Respondent made it clear to the employees that the reason
why it was not going to fulfill its promise of wage increases
and the 4-day week was because of the Union and the Union
was depicted as the culprit responsible.'
It is therefore abundantly clear that Respondent seeks to
profit by, on the one hand, during the union organizational
campaign , promising employees a wage increase and a 4-day
week, in order to defeat the union effort and thereby demon-
strating that the Employer is the source of benefits and that
a union is unnecessary ;' and, on the other hand , having
reaped the benefit of its promise of benefits to the employees
and thereby winning their good will, later informing em-
ployees that the promised benefits could not be given because
the Union had filed a petition for certification. The hero and
"good guy" in this employer orchestrated tableau is obviously
the Employer, and the villain or "bad guy" is unmistakably
the Union.9 An ancillary villain, as depicted by Respondent,
is the Act, since Respondent, in telling its employees why,
despite the Employer's promise of benefits and its own ear-
nest desire to fulfill the promise, the benefits cannot be
granted, stated that "for us to do so . . . would interfere with
your rights . . . [under the Act to engage in union activity
and the choice or rejection of a union without employer
interference or restraint]."10
The weakness in Respondent's position is that the original
promise of the benefits as a means of defeating the Union was
illegal that having reaped the fruit of its promise of benefits
in the minds of the employees, Respondent's subsequent ac-
tion in withholding the promised benefits because of the
union petition was also illegal as being part and parcel of the
basic illegal context."
r "We deeply regret that the Union 's petition makes it impossible for us
to do this [grant the promised wages increase and 4-day week]
8 NLRB v Exchange Parts Co, 375 U S 405 (1964)
9 American Paper Supply Co, 159 NLRB 1243, 1244 (1966)
10 The Stuttgart Shoe Corporation case , 149 NLRB 663 (1964), cited by
Respondent , is distinguished on its basic facts from the instant case It was
found in Stuttgart that the employee had not been actually promised a wage
increase (" It is evident , as the General Counsel notes in his argument, that
on November 12 Sutten was not actually promised a wage increase "
a result , the raise that respondent withheld in Stuttgart rests in a different
context than the withholding of the promised raises in the instant case Cf
Safeway Stores, Inc, 186 NLRB 930, 931 (1970)
11 In telling the employees that the benefits promised would not be forth-
coming because of the union presence , Respondent did not explain to the
employees that the entire problem had originated in Respondent 's illegal
Objections 1 and 2 of the objections to the election coincide
with paragraphs 4(b) and (c) of the complaint. Since I have
found that the evidence sustains paragraphs 4(b) and (c) of
the complaint as an unfair labor practice, the aforesaid objec-
tions are also sustained.
Paragraph 4(a) of the complaint alleges the maintenance
and enforcement of an illegal no-solicitation rule.
In a printed company booklet, "General Information For
Employees," there appears at pp 2-3, the following, under
"Rules of Conduct,"
C. The violation of any of the following rules by an
employee is considered serious misconduct. The first
violation of any of these rules will be punishable by three
days off without pay The second violation of the same
or another of these rules will result in discharge.
4. Unauthorized selling, soliciting , canvassing , or dis-
tribution of literature.
On page 10 of the same booklet appears:
Solicitation
Employees may not make solicitations for any pur-
pose during working time.
Distribution
Employees may not distribute literature at any time in
work areas. . .
In my opinion, rule C4 is illegally broad on its face since,
by its terms, it applies to nonworking time and to nonwork
areas as well as otherwise . Personnel Director Seaman testi-
fied that the rule is not enforced although he stated that there
was no authorized solicitation." There is no evidence that
the rule was enforced but it is in the booklet received by
employees. The rules on page 10, above-mentioned, when
read , create an ambiguous situation and do not cure the
defect in rule C4 on page 2-3. I find that the maintenance and
distribution of rule C4 to employees in a company booklet
given to employees has an inhibitory effect on the exercise of
their rights under Section 7 of the Act and constitutes a
violation of Section 8(a)(1) of the Act. I also find that the
rule's existence constitutes a valid basis of objection to the
election."
conduct to interfere with their union activity and Respondent did not men-
tion that the Union had advised Respondent that it had no objections to the
granting of the benefits Indeed , if Respondent had any question about the
Union's position it did not seek further clarification from the Union al-
though invited to do so And, finally, in my opinion, a clear waiver or
statement from the Union regarding the granting of the benefits, would be
a major shield to Respondent if it acted in reliance thereon and granted the
promised benefits Certainly Respondent would not have been accused, as
in the instant complaint , of having illegally withheld benefits
The foregoing matter of the union letter is not of major importance,
however, since the union was under no obligation to state any position
regarding Respondent ' s announcement that it was withholding the promised
benefits because of the union petition Respondent's conduct stands or falls
on its two feet and, in my opinion, it falls, for the reasons stated in this
Decision
12 The rule speaks of "unauthorized" selling, soliciting, canvassing, and
distribution
13 The objections to the election do not refer specifically to the no-
solicitation rule but do contain, inter alia, a general allegation that "by the
acts set forth above and by other acts and conduct, [the Employer]
interfered with the rights of its employees " The Regional Director in
making postelection investigations is not limited to the specific issues raised
(Continued)
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
Respondent has violated Section 8(a)(1) of the Act by:
1. Withdrawing and withholding a promised wage increase
from employees because of employees' union activity.
2. Withdrawing and withholding from employees a pro-
mised 4-day, 10-hour per day workweek because of em-
ployees' union activity.
3. Maintaining rule C4 in its Rules of Conduct for em-
ployees.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices , it will be recommended that it cease and
desist therefrom and take certain affirmative action to effec-
tuate the policies of the Act.
It is recommended that Respondent promptly pay to its
employees the wage increases that , on December 13, 1973, it
promised would become effective on January 7, 1974, with
interest at 6 percent on the wage increases for the period from
January 7 , 1974, to the date when the increases are made
currently operative as part of the employees ' regular pay.
Since Respondent had not promised a specific amount of a
wage increase , the increase will be in the amount that Re-
spondent would have paid but for its illegal withdrawal of the
promised increase."
It is also recommended that Respondent promptly institute
the 4-day, 10-hour per day week as promised to the em-
ployees on December 13, 1974, and under the conditions then
promised.
by the parties . International Shoe Company, 123 NLRB 682, 684 (1959).
Here, the Regional Director , in the course of his investigation of the charge
and the objections and as a result thereof had issued a complaint alleging,
inter alia , an illegal no-solicitation rule; and the Regional Director having
found that conduct in the complaint is related to the objections, con-
solidated the complaint and the objections in the instant hearing . The charge
did not refer specifically to the no-solicitation rule but does contain a general
allegation that " By the above and other acts, the above - named employer had
interfered with, restrained , and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act." Since a charge is not a pleading but is
the instrument that sets in motion the General Counsel 's investigatory
machinery , the instant charge is a sufficient basis for the complaint. The
charge and the objections were filed February 7, 1974. It is not clear at what
stage of the investigation that Respondent 's no-solicitation rule came to the
attention of the General Counsel . In any event , the General Counsel , before
the issuance of the complaint on March 28 , 1974, advised Respondent that
the illegality of the no-solicitation rule would be alleged in the complaint.
More than a month elapsed between the issuance of the complaint on March
28, 1974, and the instant hearing on May 2, 1974.
14 Respondent's chief executive officer, Cordial, testified that, with re-
spect to the increase, he had in mind a ball park figure of 5 to 5. 5 percent.
ORDER' 5
Respondent, Keller Columbus, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Withholding and refusing to pay to its employees the
pay increases that it promised its employees would be effec-
tive January 7, 1974.
(b) Withholding and refusing to place in effect at its plant
the 4-day, 10-hour workweek that it promised its employees
would become effective January 7, 1974.
(c) Maintaining rule C4 that appears at pages 2-3 of its
printed employee handbook under the caption "Rules of
Conduct."
(d) In any like or related manner interfering with the exer-
cise by employees of the rights guaranteed to them under
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Pay to its employees the wage increases that were pro-
mised to be effective on January 7, 1974, including the wage
increases that were withheld from January 7, 1974, to the
effective current institution of the pay increases, with interest
at 6 percent on the previously withheld increases.
(b) Place in effect the 4-day, 10-hour workweek previously
withheld.
(c) Delete or effectively amend rule C4 pages 2-3, in the
employee handbook under "Rules of Conduct."
(d) Post at its plant in Columbus, Ohio, copies of the
attached notice marked "Appendix. 1116 Copies of said no-
tice, to be provided by the Regional Director for Region 9,
after being signed by an authorized representative of Re-
spondent, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not al-
tered, defaced, or covered by other material.
(e) Notify the said Regional Director, in writing, within 20
days from the date of this Decision, what steps Respondent
has taken to comply herewith.
15 In the event no exceptions are filed as provided by 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."