Keystone Automotive Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 2017

365 NLRB No. 60 (N.L.R.B. 2017)

365 NLRB No. 60
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Keystone Automotive Industries, Inc. and Interna-
tional Brotherhood of Teamsters, Local 853.
Case 32–RC–137319
April 13, 2017
DECISION AND DIRECTION OF SECOND
ELECTION
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The National Labor Relations Board has considered
objections to an election held February 19, 2015, and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 21
for and 29 against the Petitioner, with 1 void ballot and 3
challenged ballots, an insufficient number to affect the
results.
The Board has reviewed the record in light of the ex-
ceptions1 and briefs, has adopted the hearing officer’s
findings2 and recommendations, and finds that the elec-
tion must be set aside and a new election held.

1 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations to overrule Union Objections 1, 3, 5, 7, 10,
and 12 through 19.
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
We adopt the hearing officer’s findings that the Employer engaged
in objectionable conduct when (i) Supervisor Rolando Bellido stated to
employee Terrell Ellis that if the Union “infiltrated” the Company,
Keystone would stop offering the Core program, through which em-
ployees can earn as much as $500 over and above their regular wages
every two weeks (Union Objections 6 and 11); (ii) Stockton General
Manager Randi Graham said that if the Union were voted in, all the
“little perks” employees had would go away and/or the “gray area”
would be taken away as far as leniency was concerned (Union Objec-
tions 6 and 11); and (iii) Union City General Manager Chavin Prum
interrogated employee Morgan Crowl regarding his union sentiments
and those of other employees, and employee Tolopa-Joe Faumuina was
similarly interrogated by several managers (Union Objection 9). With
regard to Graham’s statements, the hearing officer correctly stated that
it is objectionable for an employer to threaten employees with stricter
enforcement of work rules for supporting the union. However, for that
proposition, we do not rely on Onsite News, 359 NLRB 797 (2013),
cited by the hearing officer, since that decision was invalidated by the
Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).
Instead, we rely on Miller Industries Towing Equipment, Inc., 342
For the reasons that follow, and contrary to the dissent,
we adopt the hearing officer’s recommendation to sustain
the Union’s Objection 4, which alleges that the Employer
made promises of better pay if employees voted against
the Union.
In early February 2015, the Employer held captive au-
dience meetings at its Stockton and Union City, Califor-
nia facilities, during which Regional Vice President
Randy Wittig and labor consultant Oliver Bell addressed
employees and gave a PowerPoint presentation. The
Employer conducted these meetings during the critical
period preceding the union election at those facilities,
and soon after employees at its Santa Fe Springs facility
in southern California (a facility not involved in the in-
stant proceeding) had voted to reject union representa-
tion. Based on testimony credited by the hearing officer,
during these meetings Wittig and/or Bell stated that (i)
the Employer had raised wages in Santa Fe Springs after

NLRB 1074, 1074, 1084 (2004), and Avecor, Inc., 296 NLRB 727,
732–733, 746 (1989), enfd. in relevant part 931 F.2d 924 (D.C. Cir.
1991), cert. denied 502 U.S. 1048 (1992).
For the reasons stated in the text, we also adopt the hearing officer’s
recommendation to sustain Union Objection 4 alleging that the Em-
ployer engaged in objectionable conduct by making promises of better
pay if employees voted against the Union. However, separate and apart
from Objection 4, the record shows that between 4 and 10 employees
attended the meeting where Graham said that if the Union were voted
in, all the “little perks” employees had would go away and/or the “gray
area” would be taken away as far as leniency was concerned, and re-
ports of the coercive interrogations of Crowl and/or Faumuina were
disseminated to 5 employees. Accordingly, we agree with our col-
league, who dissents as to Objection 4, that the Employer’s objectiona-
ble conduct other than the conduct at issue in Objection 4 reached a
determinative number of eligible voters and warrants setting aside the
results of the election regardless of the merits of Objection 4.
The Union has excepted to the hearing officer’s recommendation to
overrule its Objection 8, which alleged that during the critical period,
the Employer substantially increased the number of managers and
agents on duty, and conducted ride-alongs with employees, for the
purpose of intimidating employees and discouraging them from dis-
cussing the Union or participating in protected activities. As an initial
matter, we decline the Union’s request to overrule Frito Lay, Inc., 341
NLRB 515 (2004), concerning an employer’s use of ride-alongs. Fur-
ther, having found the conduct at issue in Objections 6, 9, and 11 suffi-
cient to warrant setting aside the results of the election, we find it un-
necessary to address Objection 8, as any additional findings of objec-
tionable conduct would merely be cumulative.
We grant the Union’s request for the inclusion of language in the no-
tice of election in accordance with The Lufkin Rule Co., 147 NLRB 341
(1964) (notice to state that new election is result of Employer conduct
that interfered with prior election). Such language is standard when
requested. See NLRB Casehandling Manual (Part Two) Representation
Sec. 11452.3; Miller Industries Towing Equipment, 342 NLRB at 1074
fn. 4; see also, e.g., Guardian Automotive Trim, Inc., 337 NLRB 412,
413 fn. 5 (2002); Fieldcrest Cannon, Inc., 327 NLRB 109, 110 fn. 3
(1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the election there based at least partially on the results of
a survey of wages paid by its competitors; (ii) the Em-
ployer was in the early stages of conducting a similar
wage survey for its employees in Stockton and Union
City; (iii) after the representation election at Stockton
and Union City, the wage survey would continue regard-
less of the outcome; (iv) if the Union won the election, a
pay raise at Stockton and Union City could take “a whole
lot longer”; it would involve a “long, drawn-out process”
that could take 6 months, a year, 18 months, or “forev-
er”; and there was a “really big chance” that employees
might not get any raise at all, or they could end up losing
money; (v) employees at Santa Fe Springs got their raise
in the next pay period after the “union thing was done”;
and (vi) although the Employer was not promising the
employees that the same thing would happen to them in
northern California as happened to the employees in
southern California, the Employer was going to follow
the same process, and a “reasonable man” could expect
to receive a 12.45-percent wage increase.
Meanwhile, PowerPoint slides shown during the
presentations stated that the Company was not making
any promises; that as a part of the collective-bargaining
process, wages could go up, stay the same, or go down;
and that the wage review at Stockton and Union City
would continue after the election regardless of the out-
come. In addition, one slide hypothetically posited a
scenario in which the Union won the election and em-
ployees received a 12.45-percent wage increase. The
slide indicated that if union dues were 1.4 percent of the
new wage rate, the net increase would be 11.05 percent,
not 12.45 percent.
Where testimony conflicted regarding what was said at
these meetings, the hearing officer generally credited the
Union’s witnesses over the Employer’s witnesses. In
particular, the hearing officer found the Employer’s wit-
nesses’ testimony “evasive” and “vague,” and she noted
that they “did not offer specific details about what was
said during the meetings, but rather stuck to the content
of the Employer’s PowerPoint slides.” Thus, the hearing
officer implicitly discredited testimony from the Em-
ployer’s witnesses that they strictly adhered to the con-
tent in the PowerPoint slides—none of which is alleged
to be objectionable—insofar as she credited testimony
establishing that the Employer’s representatives strayed
from this written content and made additional, unscripted
statements.
Based on the testimony the hearing officer deemed
credible, the hearing officer found that the Employer
“suggested that if the Union won,” it “could take ‘6
months or 18 months’” to deal with the issue of possible
wage increases, “that it would be a ‘long drawn-out pro-
cess,’ and that there was a ‘really big chance’ that em-
ployees would not get the raise or would end up losing
money.”3 The hearing officer concluded that the Em-
ployer’s statements conveyed to employees that instead
of the Employer continuing with its wage review as
planned while bargaining in good faith with the Union
over the matter, the Employer would “go to battle with
the Union and drag its heels over the wage review if the
Union won.” Additionally, the hearing officer found that
the Employer told employees “that a ‘reasonable person’
could expect to receive a 12.5 percent wage increase if
the Employer won the election”—a statement she found
to constitute “a not-so-subtle suggestion that the employ-
ees were guaranteed to get the wage increase if they did
not support the Union.”4 The hearing officer reasoned
that the Employer’s statements concerning what a “rea-
sonable person” could assume about wage increases, on
the one hand, and the lengthy delays that employees
could expect prior to receiving any increase if the Union
won, on the other, served to “negate” content on the
PowerPoint slides which expressed that the process for
granting wage increases would go forward regardless of
the outcome of the election. Based on these statements,
the hearing officer recommended sustaining Objection 4.
An implied promise of benefits is objectionable con-
duct that may warrant setting aside an election. See, e.g.,
Etna Equipment & Supply Co., 243 NLRB 596 (1979).
“Determining whether a statement is an implied promise
of benefit involves consideration of the surrounding cir-
cumstances and whether, in light of those circumstances,
employees would reasonably interpret the statement as a
promise.” G & K Services, 357 NLRB 1314, 1315
(2011). It is well established that an employer may law-
fully compare union and nonunion wages and benefits,
respond to employee requests for information about such
wages and benefits, and make statements of historical
fact. See, e.g., Suburban Journals of Greater St. Louis,
LLC, 343 NLRB 157, 159 (2004). But depending on
what is said and the context in which it is said, even
comparisons and statements of fact may nevertheless
convey implied promises of benefits. See California Gas
Transport, 347 NLRB 1314, 1318 (2006) (finding im-
plied promise of benefits where drivers at employer’s
Nogales facility were aware that drivers at San Diego and
El Paso facilities had received a 10-percent bonus after
the representation petition was filed at Nogales, and em-
ployer, questioned by Nogales drivers about the possibil-
ity of a bonus at Nogales, replied that “what happened in
Tijuana [San Diego], happened in Juarez [El Paso]”),

3 Hearing Officer’s Report and Recommendations on Objections
(“HOR”) at 11.
4 HOR at 12.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC. 3
enfd. 507 F.3d 847 (5th Cir. 2007); Etna Equipment &
Supply Co., 243 NLRB at 596–597 (finding implied
promise of benefits where employer not only informed
employees about pension benefits at a nonunion facility
but provided each employee a chart, specifically tailored
to his age, length of service, and wage rate, showing the
exact difference in pension benefits he would receive
under the nonunion and union pension plans; stating that
“it seems very difficult to believe the [e]mployer would
go to such effort . . . unless it intended the employees to
believe the pension benefits presented were more than a
mere possibility”); Grede Plastics, A Division of Grede
Foundries, 219 NLRB 592, 592–593 (1975) (factually
accurate letter nevertheless “was a clear invitation to the
employees to reject the Union and receive benefits for
doing so”); Westminster Community Hospital, Inc., 221
NLRB 185, 185 (1975) (considered in context of em-
ployer’s other statements, wage rate comparison con-
veyed implied promise to increase wages if employees
rejected the union), enfd. mem. 566 F.2d 1186 (9th Cir.
1977).
Here, the Employer informed its Stockton and Union
City employees that the employees at its Santa Fe
Springs facility had recently voted against union repre-
sentation. In that context, the Employer told its Stockton
and Union City employees that pursuant to a wage sur-
vey it had conducted, it had raised wages 12.45 percent
in Santa Fe Springs and had done so in the very next pay
period after the election there; that it was in the early
stages of conducting a similar wage survey for its em-
ployees in Stockton and Union City and that the survey
would continue after the election; that because it was
going to follow the same process in northern California
(where the Stockton and Union City facilities are locat-
ed) as it followed in southern California (where the Santa
Fe Springs facility is located), a reasonable man could
expect to receive a 12.45-percent wage increase; and,
finally, that if the Union won the election, a pay raise at
Stockton and Union City could take a whole lot longer; it
would involve a long, drawn-out process that could po-
tentially take 6 months, a year, 18 months, or even “for-
ever;” and there was a really big chance that employees
might not get any raise at all, or they could end up losing
money.
We recognize, as the dissent emphasizes, that the Em-
ployer also said that the wage survey would continue for
Stockton and Union City employees regardless of the
outcome of the election; that the Employer told employ-
ees it was “supposed to come to the table and bargain in
good faith” with the Union if they voted for representa-
tion; that the Employer displayed a PowerPoint slide that
hypothetically posited a scenario where employees re-
ceived a 12.45-percent wage increase after the Union
won the election; and that the Employer on several occa-
sions told employees it was not making any promises.
Nevertheless, we agree with the hearing officer that the
Employer went beyond what is lawfully permitted and
“crossed the line” into objectionable conduct by imply-
ing that it would reward employees by expeditiously dol-
ing out a wage increase if they voted against the Union.
As the Board has observed, “[i]t is immaterial that an
employer professes that he cannot make any promises, if
in fact he expressly or impliedly indicates that specific
benefits will be granted.” Michigan Products, 236
NLRB 1143, 1146 (1978) (citing Westminster Communi-
ty Hospital, 221 NLRB at 185). Thus, the Employer’s
seemingly lawful campaign remarks cannot be examined
in isolation. Rather, under the applicable standard, we
must consider the totality of the Employer’s relevant
statements in the context in which they were made. Hav-
ing done so, we find, in agreement with the hearing of-
ficer, that when viewed in context, the Employer’s unob-
jectionable statements did not cure the clear implication
that a wage increase for its Stockton and Union City em-
ployees would follow promptly on the heels of a union
defeat at the polls. Based on the credited testimony re-
garding what the Employer said, it would be entirely
reasonable for employees to conclude that they would
have to wait 6 months, a year, 18 months, or possibly
forever for a raise if the Union won, but if the Union lost,
the Employer would act as it did in Santa Fe Springs and
grant raises right away.
We agree with the hearing officer that the Employer
conveyed an obvious and specific link between the rejec-
tion of union representation by employees in Santa Fe
Springs and their receipt of a 12.45 percent wage in-
crease quickly thereafter. This finding is amply support-
ed by the record evidence. For instance, employee Ter-
rell Ellis, whose testimony the hearing officer found “es-
pecially likely to be credible” on this issue, testified that
the Employer unambiguously connected rejecting union
representation with receiving a wage increase. Ellis’s
testimony, as summarized by the hearing officer, was
that
Wittig said that at the Employer’s Santa Fe Springs fa-
cility, the raises happened weeks after the victory [by
the Employer] and if the Union was not voted into the
Employer’s Stockton facility, then the Employer would
start the process of surveying the surrounding area and
implementing the wage increase for Northern Califor-
nia and the Employer’s employees could possibly see
raises within a matter of weeks.5

5 HOR at 8 (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Multiple other witnesses corroborated Ellis’s account, in-
cluding Tony Chham, an employee witness presented by the
Employer. Chham recalled that “the Employer said that the
Union was rejected in Santa Fe Springs and that there were
no election objections, and the employees got salary in-
creases after the election.”6 Another employee witness
called by the Employer, Kevin Gritsch, testified that “the
Employer stated that there was a wage increase relatively
soon after the vote to reject the Union in Santa Fe Springs.”7
Employee Max Cervantes testified “that Wittig said that the
employees in Santa Fe Springs got a good raise after the
election,” and employee Eric Stevens testified “that Wittig
said that the same raise would happen with the Union City
employees if they did the same thing and the Union did not
go through and the Employer won.”8
Thus, the Employer did not merely make statements of
historical fact or accurate representations of the collec-
tive-bargaining process.9 Instead, the Employer directly
linked the rejection of union representation by the em-
ployees in Santa Fe Springs with their receipt of a wage
increase promptly thereafter. We find that a reasonable
employee, upon hearing that a “reasonable man” could
expect the same result in Stockton and Union City,
would readily understand the artificiality and emptiness
of the Employer’s declarations that it was not making
any promises. Accordingly, we adopt the hearing of-
ficer’s recommendation to sustain Union Objection 4.10
Consistent with the foregoing discussion, we find that
the election held February 19, 2015, must be set aside
and a new election held.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the Notice of Second Election,

6 Id.
7 Id.
8 Id. at 8-9.
9 Cf. TCI Cablevision of Washington, 329 NLRB 700 (1999); Via-
com Cablevision, 267 NLRB 1141 (1983).
10 The hearing officer’s report inadvertently omits footnote 4, which
evidently would have documented her finding that the conduct at issue
in Objection 4 “clearly affected a significant number of employees in
the bargaining unit.” The Employer acknowledges in its exceptions
brief, and the record evidence establishes, that 20 employees were
present for the Union City meeting and 4 to 10 employees were present
for the Stockton meeting where the objectionable statements were
made. Accordingly, we find that a determinative number of employees
were exposed to the Employer’s impermissible conduct at issue in
Objection 4.
including employees who did not work during the period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the first election and who retained their employee status
during the eligibility period and their replacements.
Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those
in the military services may vote if they appear in person
at the polls. Ineligible to vote are employees who have
quit or been discharged for cause since the payroll peri-
od, striking employees who have been discharged for
cause since the strike began and who have not been re-
hired or reinstated before the election date, and employ-
ees engaged in an economic strike that began more than
12 months before the date of the first election and who
have been permanently replaced. Those eligible shall
vote whether they desire to be represented for collective
bargaining by International Brotherhood of Teamsters,
Local 853.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election if proper objections
are filed.
Dated, Washington, D.C. April 13, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMAN MISCIMARRA, dissenting in part.
I dissent from my colleagues’ finding that the Re-
spondent, Keystone Automotive Industries, Inc. (Key-
KEYSTONE AUTOMOTIVE INDUSTRIES, INC. 5
stone or the Company), made objectionable promises that
employees would receive wage increases if employees
voted against the Union. In this regard, my colleagues,
like the hearing officer, sustain Union Objection 4, which
alleges that during the critical preelection period, Key-
stone representatives “made promises of better pay . . . if
the employees voted against the Union.” Although I
agree with my colleagues’ decision in other respects,1 I
dissent as to Objection 4. I believe the record establishes
that Keystone clearly indicated it was not promising
wage increases. Rather, Keystone promised that it would
continue evaluating potential wage increases after the
election. Moreover, Keystone made clear that it would
conduct that evaluation in exactly the same manner re-
gardless of whether the Union won or lost the election—
although wages along with other mandatory subjects
would, of course, be subject to collective bargaining if
the Union won.
At the time union organizing commenced, certain
events had made it reasonable for employees in the peti-
tioned-for unit—drivers and warehouse workers em-
ployed at Keystone’s Stockton and Union City, Califor-
nia facilities—to believe that they were in line for a wage
increase. In particular, it is undisputed that Keystone had
previously conducted a wage survey that resulted in a
12.45 percent wage increase for employees who work at
its nonunion Santa Fe Springs and Ontario, California
facilities,2 and Keystone had already commenced a simi-
lar wage survey for its employees at its Stockton and
Union City facilities. After the Union filed the represen-
tation petition in the instant case, Keystone announced it
would complete the Stockton/Union City wage survey
after the election and evaluate potential wage adjust-
ments at Stockton and Union City in the same manner
without regard to whether the Union won or lost the elec-
tion.3 Keystone also stated, repeatedly, that it was not

1 I agree that the Employer engaged in objectionable conduct when
(i) Supervisor Rolando Bellido stated to employee Terrell Ellis that if
the Union “infiltrated” the Company, Keystone would stop offering the
Core program, through which employees can earn as much as $500
over and above their regular wages every 2 weeks; (ii) Stockton Gen-
eral Manager Randi Graham said that if the Union were voted in, all the
“little perks” employees had would go away and/or the “gray area”
would be taken away as far as leniency was concerned; and (iii) Union
City General Manager Chavin Prum interrogated employee Morgan
Crowl regarding his union sentiments and those of other employees,
and employee Tolopa-Joe Faumuina was similarly interrogated by
several managers. I also agree that the number of employees who
heard General Manager Graham’s statements, combined with the num-
ber of employees to whom reports of the interrogations were dissemi-
nated, is sufficient to warrant setting aside the election.
2 Employees in Santa Fe Springs had recently voted against union
representation in a Board-conducted election.
3 In so announcing, Keystone acted in accordance with its duties
under the Act. If an employer is already planning to consider or make
making any promises about future wage adjustments at
Stockton and Union City. In light of these statements, I
believe the Board cannot reasonably adopt the hearing
officer’s finding that Keystone “made promises of better
pay” when it expressly stated to the contrary, let alone
that it promised better pay “if the employees voted
against the Union” when it said it would evaluate wages
the same way regardless of the outcome of the election.
Keystone did inform unit employees of historical facts:
that it had conducted a wage survey at its Santa Fe
Springs and Ontario facilities, where employees are not
represented; that as a result of that survey, employees at
those facilities had received a 12.45-percent wage in-
crease; and that it had begun a similar wage survey at
Stockton and Union City. But it is lawful and unobjec-
tionable for employers to inform their employees about
historical facts, including when those facts reveal that
unrepresented employees at other facilities receive higher
wages or better benefits. See, e.g., TCI Cablevision of
Washington, 329 NLRB 700 (1999); Viacom Cablevi-
sion, 267 NLRB 1141 (1983). Accordingly, as explained
more fully below, I would overrule Union Objection 4.
The hearing officer sustained Objection 4 based pri-
marily on two statements made by Keystone representa-
tives. Contrary to the hearing officer, these statements
were not objectionable.
First, Keystone Regional Vice President Randy Wittig
indicated that the wage survey at Santa Fe Springs re-
sulted in a 12.45 percent wage increase for Santa Fe
Springs employees. Wittig also discussed the Stock-
ton/Union City wage survey. Regarding what Wittig
(and possibly a second, unidentified Keystone repre-
sentative) said to employees, the hearing officer credited

adjustments in wages at the time it becomes aware of union organizing,
it may not discontinue such plans based on union considerations. See,
e.g., Sacramento Recycling & Transfer Station, 345 NLRB 564, 564–
565 (2005) (finding employer violated Sec. 8(a)(1) where it stated that
it had been considering granting a raise but could not do so now that the
union had filed a representation petition); Feldkamp Enterprises, 323
NLRB 1193, 1198, 1199 (1997) (finding employer violated Sec. 8(a)(1)
where it blamed the union as the reason raises were being withheld);
but see Great Atlantic & Pacific Tea Co., 192 NLRB 645, 645–646
(1971) (lawful for employer, who generally gave yearly raises but had
no clearly established practice of doing so, to postpone granting raises
during the critical period without providing employees an explanation
in order to avoid the appearance of election interference), enfd. per
curiam 463 F.2d 184 (5th Cir. 1972). However, it is equally well estab-
lished that if a majority of employees vote to be represented by the
union, wage adjustments become a mandatory subject of bargaining,
and unilateral wage changes violate the Act unless and until bargaining
results in an overall impasse. See Winn-Dixie Stores, Inc., 243 NLRB
972, 973–974 (1979) (citing, inter alia, NLRB v. Katz, 369 U.S. 736
(1962)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the testimony of employees Faumuina and Eric Stevens,
among others, as follows:
According to Stevens, Wittig said that as soon as the
[Stockton/Union City] vote was over, the Employer
was going to start up the wage review process no mat-
ter what the election results were. Petitioner witness
employee Tolopa-Joe Faumuina testified that during a
meeting that he attended, the Employer said that if the
Union came in, then the pay raises could take a whole
lot longer and it would be a long drawn-out process
and there was a "really big chance" that the employees
might not even get a raise at all or could end up losing
money. Stevens recalled that either Wittig or another
representative of the Employer stated that if the Union
won the Employer was "supposed to come to the table
and bargain in good faith, but that doesn't mean that
[the employees were] going to get whatever [they] ask
for" and that it could take six months, or a year, or it
could take “forever.”4
Second, Labor Consultant Oliver Bell, who participat-
ed in an employee meeting conducted by Keystone, re-
sponded when an employee asked whether he (Bell) was
saying that Stockton/Union City employees would re-
ceive the same increase that had previously been given to
Santa Fe Springs and Ontario employees. Regarding
what Bell said, the hearing officer credited the testimony
of employees Terrell Ellis and Max Cervantes, among
others, as follows:
Ellis testified that an employee asked if Bell was saying
that the Stockton employees were going to get the raise
and the money and the percentage that the employees
in Southern California got. Bell replied that he was not
promising that the employees were going to get the
same dollar amount or that the same thing would hap-
pen in Stockton, but he was saying that the Employer
was ultimately going to follow the same process and a
reasonable man could assume that Northern California
would get the same result. Cervantes also testified that
Bell said that any reasonable person would assume that
he might be getting the same 12.45 percent wage in-
crease.5
Neither Ellis nor Cervantes testified that Bell condi-
tioned any wage increase at Stockton and Union City on
the outcome of the election. To the contrary, the record
shows that Keystone representatives repeatedly stated
that the wage survey being conducted at Stockton and
Union City would be completed in the same way regard-

4 Hearing Officer’s Report and Recommendations on Objections
(HOR) at 9 (emphasis added).
5 HOR at 8 (emphasis added; footnote omitted).
less of whether employees voted for or against the Union
in the election.6
Accordingly, the record contradicts the hearing of-
ficer’s conclusion that “the Employer's communications
to employees regarding the planned wage review crossed
the line into objectionable statements . . . by implying
that the wage review might not be forthcoming unless
there was a ‘no’ vote.”7 It is true that Keystone repre-
sentatives indicated that the collective-bargaining process
involves uncertainty and that wages could increase, de-
crease or stay the same as the result of collective bargain-

6 See, e.g., HOR at 8 (“Ellis testified that Wittig said that if the Un-
ion won, then the Employer would continue the process that was al-
ready explained regarding Southern California, but it could take 6
months or 18 months for wage issues to be dealt with.”) (emphasis
added); id. at 9 (“According to Stevens, Wittig said that as soon as the
vote was over, the Employer was going to start up the wage review
process no matter what the election results were.”) (emphasis added);
id. at 10 (“Wittig said that the other locations in California were receiv-
ing wage reviews for the purpose of ensuring that employees were at
market rate, but the Employer was unable to do any wage review in
Union City or Stockton due to the union campaign, and that the wage
survey would take place after the vote regardless of the outcome.”)
(emphasis added); id. (PowerPoint presentation used at employee meet-
ings stated that “the Employer would perform its wage review at its
Union City and Stockton facilities no matter what happened in the
vote.”) (emphasis added); id. (“[I]f Ontario and Santa Fe Springs
would have been union, then the Employer would have followed the
same wage review, but with the collective-bargaining process.”) (em-
phasis added); id. (“[T]he Employer was not stating that with a union
that wage adjustments would have been different, but with a union, the
Employer has to negotiate an entire contract and handle what the Union
needs.”) (emphasis added); id. (hypothetical example stating that if the
Union won the election, Stockton/Union City employees would still
potentially receive a 12.45-percent increase, except “if union dues were
1.4 percent of the new rate, then employees would only get an 11.05
percent increase instead of the 12.45 percent increase”); Emp. Exh. 10,
slides 8, 9, 14, 15, 16 (same); Emp. Exh. 11 at 7 (meeting script stating
in part that “[w]hether our operations are union or non-union, the Com-
pany is going to look at wages the same way”) (emphasis added); id. at
8 (“[E]ven before the Company was aware of any union activity here,
the Company was looking at the wages for all the different jobs we
have . . . [and] no matter what happens in the union vote, the Company
will continue this review.”) (emphasis added); id. at 9 (“I can tell you
that no matter what happens in the union vote, the Company will con-
tinue this review.”) (emphasis added).
7 HOR at 11 (emphasis added). Along similar lines, the hearing of-
ficer stated that “[r]ather than suggesting that it would continue with its
wage review as planned but while bargaining in good faith with the
Union over the matter, the Employer's comments suggested that it
intended go to battle with the Union and drag its heels over the wage
review if the Union won.” Id. As noted in fn. 5, supra, and contrary to
the hearing officer’s statement, the record is replete with evidence that
Keystone representatives stated that the Company intended to continue
the wage survey at Stockton and Union City and approach potential
wage adjustments in the same manner regardless of whether the Union
won or lost the election, and similar statements are contained in the
PowerPoint displayed during employee meetings and in the script used
by Keystone officials.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC. 7
ing if the Union won the election.8 However, numerous
cases establish that it is permissible for an employer to
make these types of statements.9
I believe the record also contradicts the hearing of-
ficer’s conclusion that Keystone’s permissible state-
ments—that the Company would complete the wage sur-
vey and approach wage issues in the same manner re-
gardless of whether the Union won or lost the election—
were “negated” by “statements regarding what a ‘reason-
able person/reasonable man’ could assume about wage
increases and statements that the Employer made regard-
ing the lengthy delays that employees could expect in
receiving any wage increase if the Union won the elec-
tion.”10 The latter statements did not “negate” the former
statements; rather, the two sets of statements addressed
entirely different subjects. On the one hand, and con-
sistent with its obligations under the Act,11 Keystone said
it would continue its wage survey regardless of the out-
come of the election. On the other, Keystone accurately
described its legal obligation to engage in collective bar-
gaining if the Union won the election—and the fact of
the matter is that collective bargaining takes time, partic-
ularly when the parties are negotiating for an initial col-
lective-bargaining agreement.12 Thus, it was truthful and

8 See, e.g., Emp. Exh. 11 at 17 (“As part of the collective bargaining
process, your wages could go up, could stay the same, but they could
also go down. The law says that in collective bargaining, it is possible
for employees to lose during negotiations. I am not predicting this. I
am just letting you know what the law says.”); Emp. Exh. 10, slide 15
(setting forth “Facts on Collective Bargaining & Unions” and stating
there is a “[r]equirement to negotiate an entire contract,” which may
involve union demands for “Dues Checkoff,” “Union Security” and
“Super Seniority”); HOR at 9 (Keystone representative said that “if the
Union came in, then the pay raises could take a whole lot longer and it
would be a long drawn-out process and there was a ‘really big chance’
that the employees might not even get a raise at all or could end up
losing money.”); id. (Either Wittig or another Keystone representative
said that “if the Union won the Employer was ‘supposed to come to the
table and bargain in good faith, but that doesn’t mean that [the employ-
ees were] going to get whatever [they] ask for’ and that it could take six
months, or a year, or it could take ‘forever.’”).
9 E.g., Apogee Retail, NY, LLC, 363 NLRB No. 122, slip op. at 1 fn.
3 (2016) (citing Flexsteel Industry, 311 NLRB 257, 257 (1993));
Mantrose-Haeuser Co., 306 NLRB 377, 377–378 (1992)); UARCO,
Inc., 286 NLRB 55, 58 (1987), review denied mem. sub nom. Interna-
tional Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW v. NLRB, 865 F.2d 258 (6th Cir.
1988); Oxford Pickles, 190 NLRB 109, 109 (1971).
10 HOR at 12.
11 See fn. 2, supra.
12 See Lee Lumber & Building Material Corp., 334 NLRB 399, 402
(2001), enfd. 310 F.3d 209 (D.C. Cir. 2002), where the Board stated:
“Experience teaches that a period of around 6 months approximates the
time typically required for employers and unions to negotiate renewal
collective-bargaining agreements” (emphasis added). Negotiating an
initial agreement typically takes much longer than it does to negotiate a
“renewal” or successor agreement. This reality is reflected in the
Board’s “certification year” rule, under which a newly certified union’s
permissible for Keystone representatives to state, as de-
scribed by employee Ellis, that “if the Union won, then
the Employer would continue the process that was al-
ready explained regarding Southern California [the wage
survey], but it could take 6 months or 18 months for
wage issues to be dealt with.”13 It is true that Keystone
was lawfully permitted to increase wages more quickly at
its Santa Fe Springs and Ontario facilities, since employ-
ees at those facilities were nonunion and therefore the
increases at those facilities could be implemented unilat-
erally. However, these facts were accurately conveyed
by Keystone representatives along with disclaimers mak-
ing it clear that Keystone was not promising Stock-
ton/Union City employees would receive the same in-
creases—or, for that matter, anything else.14
Finally, I believe the record fails to support the hearing
officer’s conclusion that objectionable conduct was
proven based on Bell’s “statements regarding what a
‘reasonable person/reasonable man’ could assume about
wage increases” if the Union lost the election.15 In this
regard, the hearing officer reasoned as follows:
I . . . find that the Employer's comments about its
planned wage review interfered with employees' free

majority status is immune from challenge for a full year following
certification. See Ray Brooks v. NLRB, 348 U.S. 96, 98 (1954). Of
course, experience shows that negotiating an initial collective-
bargaining agreement may often take much more than a year.
13 HOR at 8. The statement recounted by employee Ellis is similar
to the one testified to by employee Faumuina (that “if the Union came
in, then the pay raises could take a whole lot longer and it would be a
long drawn-out process and there was a ‘really big chance’ that the
employees might not even get a raise at all or could end up losing mon-
ey”), by employee Stevens (that “if the Union won the Employer was
‘supposed to come to the table and bargain in good faith, but that
doesn’t mean that [the employees were] going to get whatever [they]
ask for’ and that it could take six months, or a year, or it could take
‘forever’”), and in the PowerPoint presentation the Employer displayed
during employee meetings (that “with a union, the Employer has to
negotiate an entire contract and handle what the Union needs”). Id. at
9–10; see also Emp. Exh. 11 at 17 (“As part of the collective bargaining
process, your wages could go up, could stay the same, but they could
also go down. The law says that in collective bargaining, it is possible
for employees to lose during negotiations. I am not predicting this. I
am just letting you know what the law says.”).
14 See HOR at 8 (as described by employee Ellis, consultant Bell
stated “he was not promising that the employees were going to get the
same dollar amount or that the same thing would happen in Stockton”);
Emp. Exh. 10, slide 6 (“Sharing details could be viewed as promising
the same adjustments here. . . . We will not do that” and “We are not
doing that.”); Emp. Exh. 11 at 4 (“I want to make sure that everyone
understands I am not making any promises. The Company is not mak-
ing any promises.”); id. at 4–5 (“[N]othing we say today should be
considered a promise to fix issues being brought up as part of the union
activity.”); id. at 13 (“Again, I am not making any promises about what
will happen in the future.”).
15 HOR at 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
choice in the election because instead of simply inform-
ing employees that a wage survey was taking place, the
Employer went a step further and told employees that a
"reasonable person" could expect to receive a 12.5 per-
cent wage increase if the Employer won the election.
The Employer's comments constituted a not-so-subtle
suggestion that the employees were guaranteed to get
the wage increase if they did not support of [sic] the
Union. . . . Here, the Employer's suggestion about what
a “reasonable person” might expect the outcome of the
wage review to be was . . . “tantamount to a wink” that
the employees could count on the 12.5 percent raise if
the Union lost the election.16

16 Id. (quoting G & K Services, 357 NLRB 1314, 1317 (2011) (em-
phasis added)). In my view, the instant case is materially different from
G & K Services and from a second case cited by the hearing officer,
California Gas Transport, Inc., 347 NLRB 1314 (2006), enfd. 507 F.3d
847 (5th Cir. 2007), upon which my colleagues also rely. In those
cases, the employer made statements that were deemed to imply prom-
ises regarding what employees would receive if the union lost an im-
pending representation election. In the instant case, by comparison,
Keystone stated that its description of events in Santa Fe Springs and
Ontario should not be regarded as promises. See fn. 13, supra. More
importantly, and unlike in G & K Services and California Gas
Transport, Keystone representatives repeatedly stressed that the Com-
pany would complete its wage survey and take the same approach to
wage increases regardless of the outcome of the election. See fn. 5,
supra; see also the text accompanying fn. 3, supra.
In any event, I believe G & K Services and California Gas Transport
were wrongly decided. In each of those cases, the employer informed
employees of a historical fact concerning unrepresented employees at
other facilities—that they had received a bonus (California Gas
Transport) or had better health insurance (G & K Services)—while also
stating that it could not make any promises. In each case, I agree with
the dissenting member who would have found that the employer’s
statement was lawful and/or unobjectionable. See G & K Services, 357
NLRB at 1317–1320 (Member Hayes, dissenting); California Gas
Transport, 347 NLRB at 1318 fn. 14 (Chairman Battista, dissenting).
As my colleagues concede, it is neither unlawful nor objectionable for
an employer to compare wages or benefits received by its union and
nonunion employees, even when the comparison reveals that nonunion
employees receive higher wages or better benefits than union-
represented employees. See TCI Cablevision of Washington, supra;
Viacom Cablevision, supra; Suburban Journals of Greater St. Louis,
343 NLRB 157 (2004); Langdale Forest Products Co., 335 NLRB 602
(2001).
Other cases cited by the majority are also distinguishable from the
instant case. In Etna Equipment & Supply Co., 243 NLRB 596 (1979),
an implied promise was found based on the employer giving each of its
union-represented employees an individualized projection of how much
better they would fare under the retirement plan covering its nonunion
employees. In Westminster Community Hospital, Inc., 221 NLRB 185
(1975), enfd. mem. 566 F.2d 1186 (9th Cir. 1977), the employer went
beyond comparing wage rates at union and nonunion hospitals and
blamed the union, falsely, for the employer’s purported inability to
provide increased benefits to union-represented employees. Finally, in
Grede Plastics, 219 NLRB 592 (1975), the employer characterized
nonunion employees as a “team,” told union employees that nonunion
In my view, there are multiple problems with the hear-
ing officer’s characterization of the facts and with her
legal conclusion that Bell’s “reasonable person” com-
ment constituted an objectionable promise that “employ-
ees could count on the 12.5 percent raise if the Union lost
the election.”17 Most importantly, as noted above, the
record makes clear that Company representatives stated
repeatedly that Keystone would complete its wage sur-
vey and approach wage issues in the same manner even if
the Union won the election.18 Along similar lines, the
PowerPoint displayed during employee meetings includ-
ed an example that assumed employees became union-
represented and received a 12.45 percent increase—the
same increase afforded to Santa Fe Springs and Ontario
employees.19 The most detailed testimony regarding
Bell’s “reasonable person” comment was supplied by
employees Ellis and Cervantes,20 whose testimony the
hearing officer stated was “especially likely to be credi-
ble.”21 As described by the hearing officer, their testi-
mony revealed the following:
 The Company indicated that “if the Union won,
then the Employer would continue the [wage
survey] process that was already explained re-
garding Southern California, but it could take 6
months or 18 months for wage issues to be dealt
with.”22
 An employee “asked if Bell was saying that the
Stockton employees were going to get the raise
and the money and the percentage that the em-
ployees in Southern California [Santa Fe
Springs and Ontario] got.”23 As described by
Ellis, this question was not premised on whether
the Union won or lost the election.
 Bell immediately stated “he was not promising
that the employees were going to get the same

employees received larger and more frequent raises and better benefits,
and urged the union employees to join “this successful team”—
implying that if they joined the nonunion “team,” they would enjoy
“team” raises and “team” benefits. The facts of these cases are very
different from those presented here.
17 HOR at 12.
18 See fn. 5, supra; see also the text accompanying fn. 3, supra.
19 See Employer Exh. 11, slide 16, which stated that assuming em-
ployees became union-represented and received a 12.45-percent wage
increase, the obligation to pay union dues would reduce their net wage
increase to 11.05 percent. There is no allegation that the information
set forth in this slide or in other portions of Keystone’s PowerPoint
presentation was objectionable.
20 See HOR at 8.
21 Id. at 11.
22 Id. at 8.
23 Id.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC. 9
dollar amount or that the same thing would hap-
pen in Stockton.”24
 Bell stated “the Employer was ultimately going
to follow the same process” that had led to the
12.45 percent wage increases at Sante Fe
Springs and Ontario.25 This was consistent with
many similar statements described by other wit-
nesses and reflected in relevant documenta-
tion.26
 According to employee Cervantes, “Bell said
that any reasonable person would assume that
he might be getting the same 12.45-percent
wage increase.”27 According to employee Ellis,
Bell said that “a reasonable man could assume
that Northern California would get the same re-
sult.”28
Bell’s statement regarding what a “reasonable person”
or “reasonable man” could or would assume cannot rea-
sonably be regarded as an objectionable promise that
employees would receive a 12.45 percent wage increase
if the Union lost the election. As just shown, this state-
ment was preceded by Bell stating, in response to a ques-
tion, that “he was not promising” what Stockton employ-
ees would get. More importantly, the assumed 12.45
percent wage increase was not conditioned on the out-
come of the election. This was consistent with the Pow-
erPoint displayed at employee meetings that likewise
assumed employees would still get the same 12.45 per-
cent wage increase if the Union won the election.29

24 Id. (emphasis added).
25 Id.
26 Id. See also fn. 5, supra; text accompanying fn. 3, supra.
27 Id. (emphasis added).
28 Id. (emphasis added).
29 See fn. 19, supra.
It is not objectionable conduct for an employer to ad-
vise employees that wage increases will be treated in the
same manner regardless of whether the union wins or
loses a representation election. Neither is it objectiona-
ble for an employer to compare “the pay and benefits of
employees in its nonunion locations with those received
in its unionized locations,” especially where the employ-
er “also disclaim[s] any promise of what the employees
might receive in the future.”30
For the above reasons, I would overrule Union Objec-
tion 4 alleging that Keystone representatives “made
promises of better pay . . . if the employees voted against
the Union.” I believe the record fails to support a finding
that Keystone promised employees wage increases.
Moreover, even if any statements may be regarded as a
promise of wage increases, the record establishes that
Keystone indicated the increases would be equally avail-
able if the Union won the election—subject, of course, to
the Company’s legal duty to bargain with the Union on
request concerning all mandatory subjects, including
wages.
Accordingly, as to this issue, I respectfully dissent.
Dated, Washington, D.C. April 13, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
NATIONAL LABOR RELATIONS BOARD

30 TCI Cablevision of Washington, 329 NLRB at 700; see also Via-
com Cablevision, 267 NLRB at 1141 (“A comparison of wages is not
per se objectionable; the question is, was there a promise, either express
or implied from the surrounding circumstances, that wages would be
adjusted if the Union were voted out.”) (emphasis added).