KMST-TV, Channel 46

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 381 (N.L.R.B. 1991)

381
302 NLRB No. 64
KMST-TV, CHANNEL 46
1 Pursuant to the annual evaluations, between 85 and 90 percent of the em-
ployees received wage increases.
2 During the election campaign the Union’s literature criticized the Respond-
ent’s suspension of the evaluations. Such criticism was the subject of one of
the Respondent’s objections to the election.
3 The Respondent’s request for review was pending at the time of the hear-
ing in this unfair labor practice case. On December 12, 1989, the Board denied
the Respondent’s request for review in an unpublished decision.
Retlaw Broadcasting Co., a subsidiary of Retlaw
Enterprises, Inc., d/b/a KMST-TV, Channel 46
and American Federation of Television and
Radio Artists, San Francisco Local. Case 32–
CA–10271
March 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 6, 1989, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by suspending its annual em-
ployee evaluations after the Union had filed a rep-
resentation petition. We find merit to the Respondent’s
exceptions.
The Respondent operates a television station in
Monterey, California. As more fully described by the
judge, the Respondent annually evaluated its employ-
ees’ performance and wages on their employment anni-
versary date.1 On February 28, 1989, the Union filed
a representation petition, which the Respondent re-
ceived in the first week of March. The Respondent’s
vice president, Ben Tucker, contacted the Respondent’s
attorney, who advised Tucker to suspend the evalua-
tions because an employer must ‘‘be very careful, be-
cause anything you do can be construed to be a move-
ment to buy votes.’’ On Tucker’s instruction, General
Manager Dick Drilling suspended the evaluations in
early March. They had not been reinstituted as of the
hearing in August 1989. As a result of the suspension,
a substantial number of employees who would have
been evaluated were not.
Representatives of the Respondent discussed the sus-
pension with employees on six occasions, five of
which were before the election held on May 21 and
22, 1989. All the Respondent’s discussions of the eval-
uations but the first were in response to employee
questions. During the first week of April, the station’s
chief engineer, Roy Dasher, met with two employees.
He told them that he had done their annual evaluations
but that no action would be taken on them because of
the union situation. Dasher explained that NLRB regu-
lations prohibited the Respondent from doing anything
that could be construed as a bribe to encourage em-
ployees not to vote for the Union.
On April 6, Vice President Tucker spoke to the sta-
tion’s production employees about the Union’s petition
and then opened the meeting for questions. An em-
ployee, Scott Thompson, asked if the employees would
receive the raises that earlier had been promised to
them. Tucker responded that the Respondent’s attorney
had advised him that because of the organizational
campaign and the upcoming election the Respondent
could not give pay raises because it might look like it
was trying to bribe the employees to vote against
union representation. Tucker added that as soon as the
Respondent was advised it could reinstate the evalua-
tion policy for merit raises, it would, but would ‘‘wait
until [it] had clearance and everything was taken care
of.’’
In an April meeting with a group of production em-
ployees, General Manager Drilling was asked what
was going to happen with the employees’ evaluations
and wage reviews. Drilling replied that, on the advice
of the Respondent’s attorney, he was unable to con-
tinue evaluating employees for raises because it would
give the appearance of trying to buy votes, but that
when the ‘‘lawyer told [him] that it was okay’’ to rein-
state the policy he would do so.
In May, Drilling met with the Respondent’s produc-
tion employees and was asked if the policy of reviews
and raises would be affected by whether the Union
won or lost the upcoming election. Drilling answered
‘‘that would not have an effect on us continuing with
our evaluating process.’’ In a different meeting in May
with the news department employees, in response to a
question Drilling told the employees, ‘‘whether or not
we had a union at KMST, that we would continue the
evaluation process that we now have with evaluating
the employees and their performance on the job.’’2
The Union won the election held May 21 and 22
and the Respondent filed objections. On July 13, the
Regional Director found the Respondent’s objections
to be without merit and certified the Union. The Re-
spondent filed a request for review of the Regional Di-
rector’s decision and certification with the Board.3
On July 18, Drilling met with all the Respondent’s
employees, and advised them that, as the election was
over, things should return to normal and that he did
not want the employees to harbor any ill-will toward
the Respondent. Employee Thompson asked if the em-
ployees would be getting their raises. Drilling said that
the Union and the Respondent had appeals pending be-
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 On July 14, employee Kelly Nigro asked Production Manager Mark Walk-
er whether he would receive an evaluation that the two had agreed would
occur in April (it was not yet time for Nigro’s employment anniversary eval-
uation). Walker responded that General Manager Drilling had frozen every-
thing, that there was a wage freeze. Neither the Union nor the election was
mentioned. On the evidence before us, we are unable to conclude that Walk-
er’s statement to Nigro about a ‘‘wage freeze’’ affecting a special-situation
evaluation of Nigro even related to the allegedly unlawful suspension of em-
ployment anniversary evaluations.
5 On the other occasion, the chief engineer told two employees that, al-
though their evaluations had been completed, no wage review would occur be-
cause the Respondent had suspended the evaluations in order to avoid appear-
ing to bribe them not to vote for the Union.
6 We do not agree with any implication in the judge’s decision that Village
Thrift Store, 272 NLRB 572 (1984), overruled or limited the Uarco Inc., 169
NLRB 1153 (1968), line of cases, of which Atlantic Forest Products, supra,
is representative.
7 See Cutter Laboratories, 221 NLRB 161, 169 (1975), in which the judge
relied on the respondent’s preelection assurance of retroactivity as one factor
in considering whether election interference had occurred and, Sugardale
Foods, 221 NLRB 1228 (1975), in which no election interference was found
notwithstanding that the employer made no preelection assurance regarding
retroactivity.
fore the Board and that he had been advised by the
Respondent’s attorney that to grant raises would give
the appearance of trying to buy votes and influence
employees’ decisions. He further said that as soon as
he learned from the attorney that it was legal to give
raises he would, but not until then.4
Contrary to the judge, we find that the Respondent’s
conduct, viewed as a whole, did not violate Section
8(a)(1). In Atlantic Forest Products, 282 NLRB 855
(1987), the Board reiterated the law on this issue:
It is well established that an employer is required
to proceed with an expected wage or benefit ad-
justment as if the union were not on the
scene. . . . An exception to this rule, however, is
that an employer may postpone such a wage or
benefit adjustment so long as it ‘‘[makes] clear’’
to employees that the adjustment would occur
whether or not they select a union, and that the
‘‘sole purpose’’ of the adjustment’s postponement
is to avoid the appearance of influencing the elec-
tion’s outcome. [282 NLRB at 858.]
The Respondent made no attempt to capitalize on
the suspension of the evaluations to discourage em-
ployees’ union activity. It did not post a notice or gen-
erally publicize that it had suspended the evaluation-re-
view program. Rather, in five of the six occasions the
suspension was discussed, discussion of the subject
was initiated and framed by an employee question.5
When it did discuss the suspension, the Respondent
did not say or imply to its employees that the suspen-
sion was in retaliation for their support of the Union.
Rather, the Respondent explained to the employees
that the reason it suspended the evaluation-reviews was
to avoid the appearance of attempting to influence their
votes in the election. General Manager Drilling told
the employees that whether or not the Union won the
representation election, the Respondent would continue
its evaluation program. Having made plain that its sus-
pension of the evaluation-review program was based
on its attorney’s advice that to continue it could be
considered unlawful interference in the election, the
Respondent also made clear that it would reinstate the
program as soon as it was advised that it was legal to
do so.
After the election, which the Union won, the Re-
spondent filed objections. The objections were ulti-
mately overruled. While they were pending before the
Board, however, the possibility existed that the elec-
tion would be set aside and a new one ordered. In the
July 18 meeting with all the employees, an employee
asked if they would get their raises because the elec-
tion was over. Thus, while General Manager Drilling’s
comments at the July 18 employee meeting were made
after the election, they came at the time the Employ-
er’s objections were pending. In response to an em-
ployee’s question Drilling repeated that to grant raises
could give the appearance of trying to buy votes and
influence the employees’ decisions. Drilling further
stated that as soon as he learned from the Respond-
ent’s attorney that it was legal to give the raises he
would do so, but not until then. We find that the Re-
spondent’s conduct was permissible under Atlantic
Forest Products, supra. The Respondent ‘‘made clear’’
to its employees that evaluations would continue
whether or not the employees selected the Union and
that the ‘‘sole purpose’’ of suspending evaluations was
to avoid the appearance of influencing the outcome of
the election. Atlantic Forest Products, supra, 282
NLRB at 858.
The judge identified four reasons for concluding that
the Respondent’s suspension of evaluations was not
permitted under Atlantic Forest Products.6 He found
that the Respondent was ‘‘vague and evasive’’ about
when it would reinstate the evaluation-review pro-
grams. As noted, however, Drilling explained to em-
ployees that the Respondent would reinstate the eval-
uations as soon as it was legal for it to do so. The
judge, next, relied on the Respondent’s failure to as-
sure the employees that when it reinstated the evalua-
tions and wage reviews any wage increases would be
awarded retroactively. Although this is a factor, it is
not determinative.7 Third, the judge relied on the fact
that the Respondent did not reinstate the evaluations
after the election. As noted, however, the Respondent
was pursuing its objections to the election. Had the
Board found the Respondent’s election objections to be
meritorious, a second election would have been di-
rected, making the Respondent’s intervening conduct
subject to ‘‘critical-period’’ scrutiny. Thus, it was en-
tirely consistent for the Respondent to defer the eval-
uations until the merits of its objections were finally
determined. Finally, the judge relied on the fact that
383KMST-TV, CHANNEL 46
8 We note that it is not unheard of for a Regional Director to reconsider
disposition of a case in light of a motion for reconsideration, an appeal to the
General Counsel, or for a Regional Director to make mutually inconsistent
complaint allegations and allow the trier of fact to determine which fact ex-
isted or was unlawful.
1 Atlantic Forest Products, 282 NLRB 855, 858 (1987).
the Respondent should have known that neither the
General Counsel nor the Union would object to the re-
instatement of the evaluations. For the reasons just
stated, we believe that such reliance is misplaced. Fur-
ther, while it is true that the Union’s election campaign
literature found fault with the Respondent’s suspension
of the evaluations, the Union might also have found
fault with a reinstitution of the evaluations prior to the
election. As the Respondent argues, it is possible that,
for campaign purposes, the Union would have found
fault with any course of action the Respondent took.
In these circumstances, we do not think the Respond-
ent was required to speculate concerning the Union’s
position on reinstitution of the evaluation program
prior to the election.
As fully discussed above, we find that the Respond-
ent’s conduct was consistent with conduct found law-
ful under the Uarco - Atlantic Forest Products line of
cases. The dissent agrees that the Respondent’s con-
duct from early March to May 19 was lawful. It would
find, however, that once the Regional Director issued
the May 19 complaint, which alleged that the same
March-to-May conduct was unlawful, it was incumbent
upon the Respondent to conform to the Regional Di-
rector’s reading of the law, a reading which we unani-
mously reject. Ironically, the dissent characterizes the
effect of the complaint as ‘‘reliably’’ informing the
Respondent that its lawful conduct was unlawful. We
cannot agree with the dissent’s logic, which would find
an unfair labor practice based on a respondent’s failure
to change its lawful conduct.
A complaint alleges unfair labor practices; it does
not, itself, find them. Not all complaint allegations are
ultimately sustained or even litigated; allegations may
be withdrawn. Moreover, even assuming that the
issuance of the complaint represented the Regional Di-
rector’s ‘‘final’’8 view of whether the Respondent’s
conduct was an unfair labor practice, it did not resolve
the representation case. Had the Respondent changed
its conduct in response to the complaint, it still would
be subject to a union objection in the representation
case that reinstituting the evaluations before the elec-
tion interfered with employee free choice. Unlike the
Regional Director’s determination to issue a complaint
in the ‘‘unfair labor practice’’ case, his interpretation
in the ‘‘representation’’ case would be subject to re-
view by the Board. In cases of this type, we do not
agree that it would further the Act’s objectives to re-
quire an employer to conform to a complaint’s view of
the law.
We also note that implementation of the dissent’s
view of the law could create havoc in the election
process. Although the dissent does not specify how the
Respondent could have complied with the dissent’s
view of the law, it seems apparent that the Respondent
would have had to reverse its suspension of employee
evaluations after May 19. The complaint issued 2 days
before the first day of balloting in the election. The
performance appraisals required the department head to
evaluate various factors relating to the employee being
evaluated, including performance during the past year,
a comparison of the salaries of other employees per-
forming comparable work, and the amount of money
available in the budget. After the department head
completed this task, the appraisal and any pay raise
recommendation was then presented to the Respond-
ent’s general manager for review and action. The evi-
dence indicates that more than a few employees’ anni-
versary dates had passed by May 19. Thus, any at-
tempt to reinstitute the evaluations before the election
would likely have been attended by accusations of un-
lawful or objectionable behavior. The probable result
would have been confusion among the employees in
the last 2 days before the election. We do not think it
good policy to encourage such confusion and potential
for interference with the employees’ free choice in an
election.
We do not find that the Respondent’s conduct, con-
sidered as a whole, violated the Act, and we shall dis-
miss the complaint.
ORDER
The complaint is dismissed.
CHAIRMAN STEPHENS, dissenting.
My colleagues find that the Respondent acted law-
fully when, during a union organizing campaign and
the pendency of election objections, it suspended its
policy of annually evaluating employees on their em-
ployment anniversary dates and granting wage in-
creases based on those evaluations. They reason that,
because the Respondent did not attempt to capitalize
on the suspension of the evaluations to discourage
union activity, but instead explained that it had sus-
pended the evaluations to avoid giving the appearance
of attempting to influence the employees’ votes in the
election, and that the evaluations would be reinstated
after the election regardless of the outcome, its con-
duct, considered as a whole, was not unlawful. For the
following reasons, I disagree.
Board has long held that an employer faced with a
union organizing campaign is required to proceed with
an expected wage or benefit increase as though the
union were not on the scene.1 The Board has carved
out a limited exception to this rule, however, permit-
ting such an employer to defer a planned wage or ben-
efit increase as long as the employer makes clear to
employees that the increase will occur whether or not
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 See, e.g., Village Thrift Store, 272 NLRB 572 (1984).
3 Id.
4 The record reveals that General Manager Dick Drilling made such a state-
ment at a meeting of all employees on July 18. Drilling also stated that the
Respondent’s attorneys had advised against giving raises. Reliance on the ad-
vice of counsel, however, is not a defense to the allegations here. G. C. Mur-
phy Co., 223 NLRB 604, 607 (1976), enfd. 550 F.2d 1004 (4th Cir. 1977).
5 NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 715 (2d Cir. 1969);
Free-Flow Packaging Corp. v. NLRB, 566 F.2d 1124, 1130 (9th Cir. 1978).
In G. C. Murphy Co., supra, the petitioning union had informed the em-
ployer that the union would not file unfair labor practice charges if the em-
ployer granted wage increases during the organizing campaign. The employer,
however, did not grant wage increases. Instead, it portrayed the union as hav-
ing attempted to induce the employer to break the law. The administrative law
judge, in an opinion adopted by the Board and affirmed by the court of ap-
peals, found the employer’s actions unlawful. He noted that the union’s assur-
ance ‘‘plainly relieved the Respondent of any fear that it might be violating
the Act by proceeding with the merit reviews in accordance with its estab-
lished practice.’’ 223 NLRB at 607. The court, in affirming, also observed
that, under the circumstances, ‘‘the employer had no ground to fear that grant-
ing wage increases at that time would provoke an unfair labor practice
charge.’’ 550 F.2d at 1005. Here, a fortiori, where the Respondent persisted
in suspending its established policy of periodic evaluations and raises, on the
ground that any other course of action might be unlawful, even after it knew
with absolute certainty that the General Counsel considered its actions unlaw-
ful, there are ample grounds for finding a violation.
they select the union, and that the sole purpose of the
postponement is to avoid the appearance of influencing
the outcome of the election. Id. The rationale underly-
ing that exception is that without it an employer faced
with a union organizing campaign would court unfair
labor practice allegations whether it granted a wage in-
crease or withheld it.2 The Board has developed the
exception so that employers will be able to avoid this
kind of ‘‘damned if you do, damned if you don’t’’
choice.3
Although the Respondent informed employees that
the evaluations had been suspended only to avoid the
appearance of interfering with the election and that
they would be reinstated after the election irrespective
of the result, I nevertheless find that it acted unlaw-
fully. I reach this result because, in my view, the ra-
tionale for the exception on which the Respondent re-
lies ceased to exist on May 19, 1989, when the com-
plaint issued, alleging that the suspension of the eval-
uations and raises was unlawful. Before that date, the
Respondent could legitimately have feared that pro-
ceeding with its established policy would lead to the
filing of unfair labor practice charges. After May 19,
however, there could have been no such legitimate
doubt. At that point, the General Counsel’s position
was clear and known to the Respondent: its suspension
of the evaluations and raises was allegedly an unfair
labor practice. Even so, the Respondent persisted in
telling employees the exact opposite: that it could not
lawfully evaluate employees and grant raises based on
the evaluations.4 The Respondent’s adherence to a po-
sition which, it had been reliably informed, was unlaw-
ful should, in my opinion, preclude the Board from
finding that the Respondent was simply acting in a
‘‘good faith effort to conform to the requirements of
the law.’’5 Under these circumstances, the Respond-
ent’s adherence to its position after May 19 is revealed
as simply a cynical attempt to foster antiunion senti-
ments by tacitly blaming the Union and the union or-
ganizing effort for the employees’ not being evaluated
and receiving raises according to the Respondent’s es-
tablished practice.
Notwithstanding all the foregoing, however, my col-
leagues in the majority find no violation here. The gist
of their position seems to be that, because the Re-
spondent’s conduct between March and May 19 was
lawful, it should not have had to modify that conduct
merely because the Regional Director issued a com-
plaint alleging that conduct to be unlawful. That rea-
soning, it seems to me, ignores the premise that
underlies the exception that has been created for this
class of cases (and that the majority do not appear to
dispute)—which is to afford employers in positions
similar to the Respondent’s a fighting chance to avoid
having charges filed against them. When the Respond-
ent’s gambit failed, the predicate for the exception no
longer existed. It makes no sense to permit the Re-
spondent to continue to follow a course of action de-
signed to avoid the filing of charges—and held to be
lawful only because it may have that effect—after a
charge has been filed (and especially after a complaint,
based on that charge, has issued). Thus, the majority
inaccurately characterizes my position as requiring the
Respondent to change its lawful conduct; my position
is that once the predicate for that conduct was removed
the conduct was no longer lawful.
I am not persuaded by my colleagues’ concerns that
the Respondent, by reinstating the evaluations and
wage increases, might have courted legal liability had
the Regional Director changed his position (an unlikely
possibility, given that the Respondent did not request
reconsideration or file an appeal to the General Coun-
sel) or had the Union filed objections in the representa-
tion case. Nor do I share their view that the Respond-
ent would have created havoc in the election process
by so doing. I concede that had the Respondent
changed its behavior and reinstated its established pol-
icy without consulting the Union or the Regional Di-
rector first it might have risked having additional
charges or election objections filed. In that event, of
course, the Union would lay itself open to the accusa-
tion that, indeed, it would have objected to the Re-
spondent’s conduct no matter what. It is also unlikely
that the Regional Director, having issued a complaint
alleging that the Respondent had unlawfully suspended
annual evaluations and wage increases, then would
have found merit in a contention that the Respondent
interfered with the election by reinstating those evalua-
tions and wage increases.
Moreover, in raising those concerns, my colleagues
evidently overlook the fact that the Respondent, once
it became aware of the Union’s position and certainly
when it learned that the Regional Director agreed with
385KMST-TV, CHANNEL 46
6 See Rosauer’s Supermarkets, 300 NLRB 709 (1990). In that case, the em-
ployer informed the petitioning union that it planned to implement a new wage
program and was told that the union probably would file a charge if the pro-
gram was implemented while the election was pending. The Board found that
the employer acted lawfully in postponing the implementation of the program
and in announcing to its employees the reason for the postponement. Cf. G. C.
Murphy Co., supra.
1 The complaint in this case was consolidated for hearing with complaints
in Cases 32–CA–10352 and 32–CA–10412, charging Respondent with other
violations of Sec. 8(a)(1) and (3) of the Act. However, at the start of the hear-
ing herein, with my approval, all the parties involved entered into an agree-
ment settling all of the unfair labor practices alleged in Cases 32–CA–10352
and 32–CA–10412, as well as other violations of Sec. 8(a)(1) and (3) alleged
in the instant case. The settlement agreement resulted in the General Counsel’s
withdrawal of the complaints issued in Cases 32–CA–10352 and 32–CA–
10412, and the withdrawal of the other unfair labor practice allegations in the
instant case encompassed by the settlement agreement.
2 In its answer to the complaint Respondent admits it meets the Board’s ap-
plicable discretionary jurisdictional standard and is an employer engaged in
commerce within the meaning of Sec. 2(2) and (7) of the Act. Also Respond-
ent admits in its answer that the Union is a labor organization within the
meaning of Sec. 2(5) of the Act.
3 All dates hereinafter, unless otherwise specified, refer to the year 1989.
the Union, was not obliged to pretend that it was being
held incommunicado. Instead, it could have explained
its position to the Union and the Regional Director and
offered to reinstate the evaluations and wage increases
if the Union agreed to withdraw its charge and not to
file election objections. Had the Union agreed, the Re-
spondent could have announced that the evaluations
and wage increases would go through; had the Union
refused to agree, the Respondent could have continued
to withhold the evaluations and increases (and could
have informed the employees that it was doing so be-
cause of the Union’s opposition to its doing business
as usual).6 Having offered to reinstate its normal pol-
icy, the Respondent would have been safe in doing so
if the Union and the Regional Director had agreed, and
should not have been found to have engaged in unlaw-
ful or objectionable conduct by continuing to withhold
the evaluations and wage increases if the Union and
the Regional Director had opposed giving them.
For the foregoing reasons, I find that the Respondent
was not justified in maintaining its position after the
complaint issued, and I find that in doing so it violated
Section 8(a)(1) of the Act as alleged.
Gary M. Connaughton, Esq., for the General Counsel.
Thomas E. Campagne and Sarah A. Wolfe, Esqs., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAIPIRO, Administrative Law Judge. This
proceeding in which a hearing was held on August 23 and
24, 1989, is based on an unfair labor practice charge filed
April 6, 1989, by American Federation of Television and
Radio Artists, San Francisco Local (the Union), and on a
complaint issued May 19, 1989, on behalf of the General
Counsel of the National Labor Relations Board (the Board),
by the Regional Director of the Board for Region 32, alleg-
ing that Retlaw Broadcasting Co., a subsidiary of Retlaw En-
terprises, Inc., d/b/a KMST-TV, Channel 46 (Respondent),
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (Act), when ‘‘commencing on or about March 27,
1989, Respondent ceased its customary practice of annually
evaluating employees and granting employees annual wage
increases based on such evaluations.’’1 Respondent filed a
timely answer to the complaint in which it denied the com-
mission of the alleged unfair labor practices.2
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
The Evidence
Respondent, a California corporation, owns and operates
television station KMST-TV, Channel 46, located in Monte-
rey, California. Ben Tucker is the executive vice president of
Respondent’s parent corporation. Dick Drilling, KMST’s
general manager, reports to Tucker. Mark Walker, KMST’s
production manager, and Roy Dasher, the station’s chief en-
gineer and the head of the engineering department, report to
Drilling.
During the time material KMST’s employees were not
represented by a labor organization. On February 28, 1989,3
in Case 32–RC–2870, the Union filed a petition with the
Board’s Regional Office seeking a representation election in
a bargaining unit of KMST’s operations and programming
department employees, news department employees, and
three traffic assistant/clerical employees employed in the
sales department. During the latter part of March a hearing
was conducted by the Board’s Regional Director in Case 32–
RC–2870 and thereafter, pursuant to the Regional Director’s
April 21 Decision and Direction of Election, an election was
conducted by the Regional Director on May 21–22 in a unit
of KMST’s news department and operations and program-
ming department employees. A majority of the eligible voters
voted in favor of union representation. Respondent filed ob-
jections to the election which the Board’s Regional Director,
in his supplemental decision issued in Case 32–RC–2870 on
July 13, 1989, found were without merit, and certified the
Union as the voting unit employees’ exclusive collective-bar-
gaining representative. Respondent’s request for review of
the Regional Director’s supplemental decision and certifi-
cation of the Union was pending before the Board as of the
date of the hearing in this proceeding.
Respondent has owned and operated television station
KMST since 1979 and for the past several years has main-
tained a policy of evaluating the work performances of the
station’s employees on or about their anniversary dates, for
the purpose of determining whether to grant the employees’
annual wage increases on or about their employment anniver-
sary dates. This policy works as follows. On or about an em-
ployee’s employment anniversary date the employee’s de-
partment head evaluates his or her job performance for the
purpose of deciding whether to grant the employee a pay
raise effective on or about the employee’s anniversary date
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Wilson’s testimony was undenied and her testimonial demeanor was good.
5 It is undisputed that on March 27 Dasher evaluated Thompson’s job per-
formance and at that time informed Thompson, that Thompson and the other
employees in the department would be receiving a $20-a-week pay raise.
6 The above description of what occurred is based on a composite of Tuck-
er’s and Thompson’s testimony. Their testimony about this portion of the
meeting was mutually consistent.
7 Based on Tucker’s testimony. Thompson testified that in response to his
inquiry Tucker only stated: ‘‘I’m sorry there is not anything we can do about
that right now. We can’t do anything that can be construed as influencing
votes before the election.’’ I credited Tucker’s testimony because his testi-
monial demeanor, which was good, was better than Thompson’s.
and, if so, the amount of the pay raise. The department head,
in making these decisions, considers the employee’s experi-
ence, job performance, the salary of other employees within
the department doing comparable work, and the amount of
money budgeted by Respondent for salaries in that depart-
ment. After deciding whether the employee should receive a
pay raise, and if so, deciding on the amount of the raise, the
department head then goes to the station’s general manager
with his recommendation. The general manager agrees with
the recommendation of the department head, at least 70 per-
cent of the times. Pursuant to the aforesaid policy, between
85 and 90 percent of the station’s employees have received
wage increases each year on or about their anniversary dates.
It is undisputed that employees familiar with the Company’s
policies realize that on or about their anniversary dates they
will be evaluated and if they have been performing their jobs
satisfactorily and if economic conditions warrant, that they
should reasonably expect a pay raise as the result of the eval-
uation (Tr. 145).
During the first week of March, on receipt of the Union’s
representation petition filed in Case 32–RC–2870, Executive
Vice President Tucker told KMST’s general manager, Drill-
ing, to suspend Respondent’s policy of annually evaluating
employees job performances and granting them merit wage
increases in conjunction with the evaluations, and instructed
him not to resume this policy until Tucker had been notified
by Respondent’s lawyer that the station could legally rein-
state the policy. Pursuant to those instructions all such eval-
uations have been discontinued and as a consequence, since
early in March, no annual anniversary date merit pay raises
have been granted to the station’s employees. It is undisputed
that from early March through the date of the hearing in the
instant case, August 24, that during the normal course of
business a substantial number of employees would have had
their anniversary date performance evaluations and as a result
most of those employees would have received pay raises
ranging from 3 to 10 percent.
Tucker testified Respondent’s reason for suspending its
policy of evaluating employees and granting them annual
merit wage increases on or about their employment anniver-
sary dates was that when Respondent received notification
from the Board ‘‘that there was going to be an election or
there was an organizing movement at the station,’’ that Re-
spondent consulted its lawyer and, among other things, asked
its lawyer whether it should suspend its policy of evaluating
employees to grant them annual pay raises on or about their
anniversary dates, and that the lawyer recommended that it
suspend this policy because, the lawyer explained, during the
period before an election Respondent must ‘‘be very careful,
because anything you do can be construed to be a movement
to buy votes’’ and informed Respondent that ‘‘the laws are
very unclear on that.’’ Tucker testified that it was because
of this advice that Respondent ‘‘early in March’’ decided to
suspend its policy of evaluating employees to grant the an-
nual merit pay raises on or about their employment anniver-
sary dates. Tucker also testified that when Respondent is ad-
vised by its lawyer that there are no longer any legal prob-
lems in doing so, Respondent will resume this policy, but
does not know whether, when it decides to resume the pol-
icy, it will grant the employees’ wage increases retroactively
to the employees’ employment anniversary dates.
After deciding in early March to suspend its policy of an-
nually evaluating employees for the purpose of granting them
a merit pay raise on or about their employment anniversary
dates, Respondent notified the employees about this decision.
The evidence of the explanations Respondent gave to the em-
ployees for its decision is set forth hereinafter.
During the first week of April the head of the station’s en-
gineering department, Roy Dasher, met with two of the em-
ployees employed in his department, Catherine Wilson and
Kent Tegtmeier, and, as Wilson testified, this is what oc-
curred4
Roy [Dasher] came in and he had a yellow legal pad.
And he said he had a statement to read to us, which
he wouldn’t allow us to see But he read it aloud to us
both, saying that as was customary, he had completed
our evaluations, as was customary at that time of year,
and had recommended us for pay increases. And that
he had submitted those recommendations and evalua-
tions to Dick Drilling, and was told that because of the
union situation, there would be no action taken until the
union matter was settled. And he said that this was be-
cause of the NLRB regulations that they cannot do any-
thing that could be construed as a bribe to encourage
employees not to vote for the union.
On April 6 Executive Vice President Tucker met with
KMST’s production employees. He spoke to the employees
about the Union’s petition for a representation election and
then opened the meeting for employees’ questions Scott
Thompson, an engineering department employee, informed
Tucker that he and other employees in that department had
been evaluated by department head Dasher and Dasher had
stated they would be receiving pay raises.5 Thompson asked
Tucker if the employees were going to receive the pay raises
Dasher had promised them.6 Tucker responded by stating he
was unaware Dasher had promised the employees pay raises,
but Respondent’s lawyer had advised him that because of the
Union’s organizational campaign and the fact that there was
going to be an NLRB-conducted election, that Respondent
could not give pay raises because it might look like it was
trying to bribe the employees to get them to vote against
union representation. Tucker also explained to the employees
that as soon as Respondent was advised it could reinstate its
previous policy of evaluating employees for merit wage in-
creases that it would do so, but would wait ‘‘until [it] had
clearance and everything was taken care of’’ before doing
this.7
In April Station Manager Drilling met with a group of pro-
duction employees at which time one of the employees asked
him what was going to happen to the employees’ perform-
ance evaluations and the employees’ annual pay raises grant-
387KMST-TV, CHANNEL 46
8 Based on Drilling’s testimony. I considered the testimony of employee Ray
Cleaveland that at an April 12 meeting of production employees, in response
to an employee’s question about the status of the employees’ pay raises, Drill-
ing replied, ‘‘since we were going through a unionization process’’ the wage
increase would not be granted because of the way the increases might be per-
ceived by union and by outside agencies or by ‘‘outside people.’’ During
cross-examination Cleaveland gave a different account of Drilling’s reply, now
testifying that Drilling stated: ‘‘I don’t understand where these rumors keep
coming from. There is no hiring freeze in effect. There is no pay freeze in
effect. We cannot make any pay raises while the unionizing effort is going
on, because of the way it would be perceived.’’ I credited Drilling’s above-
described testimony, rather than Cleaveland’s, because Drilling’s testimonial
demeanor, which was good, was better than Cleaveland’s.
9 Based on the undenied testimony of Nigro.
10 I have considered that Drilling and Tucker, during a March telephone
conversation with Respondent’s attorney, were given advice on how to answer
employees’ questions about the station’s decision to suspend the employees’
annual merit wage increases, and were advised by the attorney to tell the em-
ployees, among other things, that ‘‘once the election and legal review process
is over, no matter what the outcome, whether or not the union ia certified by
the Board the company will lift the temporary suspension and again start giv-
ing discretionary merit pay reviews in accordance with our past practice so
that we can remain competitive in the market place.’’ However, I have care-
fully reviewed Tucker’s and Drilling’s testimony concerning what they in fact
stated to the employees on that subject and it is undisputed that neither of
them made the above-quoted statement to the employees when they spoke to
the employees.
11 I note that when questioned about Drilling’s answer to his question during
the July 18 meeting, Thompson testified that although he had no difficulty re-
membering ‘‘dates’’ and ‘‘numbers,’’ he has ‘‘trouble’’ remembering ‘‘con-
versations.’’
ed as the result of those evaluations? Drilling answered by
stating that on the advice of the station’s lawyer he was un-
able to continue the policy of evaluating employees for pay
raises because it would give the appearance of trying to buy
votes, but that when the lawyer advised him it was all right
for the station to go ahead and reinstate the policy as it had
been before, that the station would do so.8
In May, prior to the May 21–22 representation election,
Station General Manager Drilling held a meeting with all the
station’s production employees. During this meeting one of
the employees asked this question: ‘‘If that policy that we
had before with raises and reviews, if . . . the union, either
coming in or not coming in, would effect that policy?’’ Drill-
ing answered by stating ‘‘that that would not have an effect
on us continuing with our evaluating process.’’ And at a
meeting with the station’s news department employees in
May, prior to the election, Drilling told those employees,
‘‘that regardless of whether or not we had a union at KMST,
that we would continue the evaluation process that we now
have with evaluating the employees and their performance on
the job.’’
On July 14, one of the station’s employees, Kelly Nigro,
in the presence of two other employees, informed his super-
visor, Production Manager Mark Walker, that he had been
employed as a director for 6 months and asked when he
would receive his review Walker replied that General Man-
ager Drilling had ‘‘frozen’’ everything, that there was ‘‘a
wage freeze,’’ so that Walker was not able to give any of
the employees in his department ‘‘any reviews or raises,’’
and further explained that the ‘‘lawyers’’ had stated the sta-
tion was not permitted to give any more pay raises.9
On July 18 Station General Manager Drilling met with all
the station’s employees. He informed them in substance that
now that the union election was over that things should re-
turn to normal and that he did not want employees to harbor
any ill will toward Respondent on account of what had oc-
curred during the period preceding the election. When Drill-
ing finished speaking, employee Thompson spoke up and in-
formed him that in March his department head had told him
he was to receive a pay raise, but that a week later he had
been informed that employees would not receive their pay
raises because pay raises could be construed as influencing
votes. Thompson asked Drilling, ‘‘now that the election is
over, will we be getting our raises?’’ Drilling replied by stat-
ing that there was nothing he could do about the employees’
pay raises and offered the employees’ the following expla-
nation. He explained to them he had been advised by the sta-
tion’s attorney that to grant pay raises to the employees
‘‘could give the appearance of us trying to illegally buy
votes and illegally influence people in their decision proc-
ess.’’ He further explained that the Union and Respondent
had ‘‘appeals’’ pending before the Board and until those
‘‘legal issues’’ were resolved there was nothing he could do
about granting employees pay raises, and also advised the
employees he was being sued in the instant case for not
granting them their pay raises. Drilling concluded his answer
by stating that once the Board ruled on the appeals pending
before it, that he would have further discussions with the sta-
tion’s attorney and would follow the attorney’s advice, and
that once the attorney advised him ‘‘it is now legal for [me]
to do this, or it is not legal for [me] to do that,’’ that Drilling
would act on the matter of the employees’ wage increases
and evaluation, but Drilling stated he did not intend to do
anything until he was advised by the attorney, and that he
presently was unable to grant the employees’ pay raises.10
The aforesaid description of Drilling’s July 18 explanation
to the employees for Respondent’s failure to reinstate its pol-
icy of granting annual merit pay raises to its employees is
based on Drilling’s testimony. His testimony conflicts with
the testimony of the General Counsel’s witnesses, employees
Thompson and Nigro. Thompson testified that in response to
his question about the status of the employees’ pay raises,
Drilling replied he was unable to presently grant the pay
raises and stated he was being sued because he had promised
some of the employees pay raises and that he had been ad-
vised he could not be sued legally for not giving pay raises,
so that for the time being there would be no raises. Thomp-
son further testified that when he indicated he did not under-
stand Drilling’s answer to his question, that Drilling stated,
‘‘presently I am being sued for having promised raises. And
since I can’t be sued for not promising raises, there will be
no raises for the time being.’’11 Nigro gave a different de-
scription of Drilling’s explanation. He testified Drilling sim-
ply stated that, ‘‘at this point by law we cannot give out dis-
cretionary raises I’ve been told not to give out any discre-
tionary raises.’’ I credited Drilling’s above-described testi-
mony because his testimonial demeanor, which was good,
was better than Thompson’s and/or Nigro’s.
II. DISCUSSION
The complaint alleges that ‘‘commencing on or about
March 27, 1989 Respondent ceased its customary practice of
annually evaluating employees and granting employees an-
nual wage increases based on such evaluations.’’ It further
alleges that by engaging in this conduct Respondent violated
Section 8(a)(1) and (3) of the Act. The evidence pertinent to
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an evaluation of these allegations has been described in detail
supra and is briefly summarized as follows.
Respondent has a policy and practice of annually evaluat-
ing its employees’ work performances for the purpose of
granting them merit wage increases effective on or about
their anniversary dates of employment. This policy had been
in existence for several years prior to the Union’s advent and
pursuant to the policy between 85 and 90 percent of the em-
ployees received wage increases each year effective on or
about their employment anniversary dates. Respondent’s em-
ployees are aware of this policy and in 1989 expected to re-
ceive merit wage increases on or about their employment an-
niversary dates, if their work performances were satisfactory.
However, after the Union on February 28 filed a representa-
tion petition with the Board seeking to represent Respond-
ent’s employees, in early March Respondent responded by
suspending its aforesaid policy of granting its employees an-
nual merit wage increases. As of the dates of the hearing in
this case, August 23–24, Respondent had not resumed grant-
ing these wage increases even though the representation elec-
tion had been held on May 21–22. During the period in
which Respondent’s policy of granting employees’ annual
merit wage increases has been suspended, a substantial num-
ber of employees would have been evaluated for merit wage
increases during the normal course of business, and, as in the
past, between 85 and 90 percent of those employees would
have received merit pay raises, ranging from 3 to 10 percent,
effective on or about their employment anniversary dates.
Respondent did not suspend its policy of granting employ-
ees annual merit wage increases because of economic rea-
sons, i.e., inability to pay, but, according to the testimony of
Executive Vice President Tucker, suspended the policy be-
cause Respondent’s attorney recommended it be suspended
because the pay raises could be construed as an attempt to
buy the employees’ votes in the representation election.
Tucker testified Respondent’s attorney stated, ‘‘you’ve got to
be very careful, because anything you do can be construed
to be a movement to buy votes . . . and he said, the laws
are very unclear on that.’’ Tucker also testified that when
Respondent is advised by its attorney that there are no longer
any legal problems in resuming its policy of granting annual
merit wage increases, that it will do so, but when it does re-
sume granting the increases, Respondent does not know if
those employees whose annual wage increases have been
withheld due to the policy’s suspension will be reimbursed
retroactively to the dates they normally would have received
their wage increases.
Prior to the May 21–22 representation election, Respond-
ent gave the following explanations to employees for its fail-
ure to grant employees their annual merit wage increases.
The head of the station’s engineering department, Roy Dash-
er, during the first week of April told two of the employees
in his department that they would not be receiving the wage
increases he had recommended for them ‘‘until the Union
matter was settled’’ and explained to the employees that be-
cause of the NLRB regulations the station could not do any-
thing that could be construed as a bribe to encourage em-
ployees not to vote for the Union; Executive Vice President
Tucker, on April 6, in response to an employee’s inquiry
about the status of the employees’ wage increases, informed
the station’s production employees that because there was
going to be an NLRB-conducted union representation elec-
tion held in connection with the Union’s organizational cam-
paign that Respondent’s attorney had advised him that Re-
spondent could not grant the employees’ pay raises because
it might look like Respondent was trying to bribe them to
get them to vote against union representation, and that as
soon as Respondent was advised it could reinstate its policy
of evaluating employees for merit pay raises it would do so,
but before doing this, intended to wait ‘‘until [it] had clear-
ance and everything was taken care of’’; General Manager
Drilling, in April, told a group of production employees, in
response to an inquiry about the status of the employees’
merit wage increases, that the station’s lawyer had advised
him to discontinue the station’s policy of evaluating employ-
ees for merit pay raises because the granting of such pay
raises would give the appearance of trying to buy votes, and
assured the employees that when the lawyer advised him it
was all right to reinstate the policy that the station would re-
instate it; General Manager Drilling, in May, prior to the rep-
resentation election, at a meeting of the station’s production
employees, in response to an inquiry from one of the em-
ployees, stated that whether the Union came into the station
as the employees’ representative ‘‘that that would not have
an effect on us continuing with our evaluating process’’; and
in May, prior to the representation election, at a meeting of
the station’s news department employees, Drilling told the
employees ‘‘that regardless of whether or not we had a union
at KMST, we would continue the evaluation process that we
now have with evaluating the employees and their perform-
ance on the job.’’ At no time prior to the election, or subse-
quent to the election, did Respondent’s officials, either di-
rectly or by implication, advise the employees that when Re-
spondent reinstated its policy of evaluating the employees for
merit wage increases that employees who had not received
a wage increase due to the suspension of the policy would
receive their wage increases retroactively to their anniversary
dates. Following the May 21–22 representation election, won
by the Union, Respondent, which filed objections to the elec-
tion, did not reinstate its policy of evaluating employees for
the purpose of granting them their annual merit wage in-
creases. It failed to do this even though it must have known
that the Union did not object to the resumption of this policy
and must have known that the Board’s General Counsel did
not consider such conduct to be a violation of the Act. Thus,
the Regional Director’s supplemental decision issued in the
representation case reveals that one of Respondent’s objec-
tions to the election was that the Union, as part of its cam-
paign to persuade employees to vote for union representation,
was critical of Respondent for failing to grant the employees
their annual merit wage increases. Also the record reveals
that by at least May 22 Respondent must have known that
the Board’s General Counsel, based on an unfair labor prac-
tice charge filed by the Union, had issued the complaint in
the instant case alleging Respondent violated the Act by dis-
continuing its policy of granting employees their annual
merit wage increases.
Following the May 21–22 representation election, Re-
spondent offered the following explanations to its employees
for Respondent’s failure to resume granting them their an-
nual merit wage increases: Early in July, when an employee
asked when he would receive his ‘‘review,’’ Production
Manager Walker replied that the ‘‘lawyers’’ had stated the
station was not permitted to grant any more wage increases,
389KMST-TV, CHANNEL 46
12 ‘‘On the other hand,’’ as the court in Plasticrafts, supra, stated (586 F.2d
at 188–189):
[W]hen there is no established practice with regard to wage increases, no
inference automatically attaches in the mind of the employee to the giving
or not giving of wage increases. In this situation it must be affirmatively
shown that the employer was motivated by anti-union sentiments to estab-
lish a violation . . . . Since in such an ambiguous situation the employee
is unlikely to draw a predictable conclusion from the employer’s course
of conduct.
Accord: Southern Maryland Hospital Center, supra.
so, because of this ‘‘wage freeze,’’ Walker stated he was not
able to give any of the employees in his department ‘‘any
reviews or raises’’; and, on July 18 at a meeting of all the
station’s employees, General Manager Drilling, when asked
whether the employees would be receiving their wage in-
creases now that the election was over, replied by stating he
had been advised by the Respondent’s attorney that to grant
wage increases ‘‘could give the appearance of us trying to
illegally buy votes and illegally influence people in their de-
cision process’’ and further explained that the Union and Re-
spondent had ‘‘appeals’’ pending before the Board and that
until those ‘‘legal issues’’ were resolved there was nothing
Drilling could do about granting employees pay raises, and
concluded by stating to the employees that once the Board
ruled on the appeals pending before it, he would have further
discussions with the station’s lawyer and would follow the
lawyer’s advice, but he did not intend to do anything until
he was advised by the lawyer and stated that presently he
was not able to grant the employees pay raises.
Before I evaluate the aforesaid evidence, in the light of the
applicable principles of law, I shall first briefly summarize
the legal principles which govern the disposition of this case.
When an employer by promises or by a continuous course
of conduct has made a particular benefit part of the employ-
ees’ established wage or compensation system, then the with-
holding of that benefit during the pendency of a union rep-
resentation election raises the inference of improper motiva-
tion. Free-Flow Packaging Corp. v. NLRB, 566 F.2d 1124,
1128–1130 (9th Cir. 1978); Plasticrafts, Inc. v. NLRB, 586
F.2d 185, 187–190 (10th Cir. 1978); Gossen Co. v. NLRB,
719 F.2d 1354, 1356–1358 (7th Cir. 1983); NLRB v. Don’s
Olney Foods, 870 F.2d 1279, 1285 (7th Cir. 1989); Southern
Maryland Hospital Center v. NLRB, 801 F.2d 666 (4th Cir.
1986). In determining whether an employer by promises or
by a continuous course of conduct has made a particular ben-
efit part of its ‘‘established practice,’’ besides focusing on
the employees’ reasonable expectations, it is also necessary
to focus on what should have been readily apparent to the
employer when the employer withdrew the benefit, for the
employer is confronted with the dilemma of deciding wheth-
er his past promises or grants of benefits have created a clear
status quo that must be maintained during the preelection pe-
riod. In other words, the employer’s conduct in withholding
or suspending an employee benefit must be judged in the
light of ‘‘whether it would be clearly apparent to an objec-
tively reasonable employer’’ that the grant or denial of a
benefit, at the time the action is taken, conforms to the status
quo. Plasticrafts, Inc., supra, 586 F.2d at 188–189. Accord:
Gossen Co., supra, 719 F.2d at 1357–1358; Don’s Olney
Foods, supra, 870 F.2d at 1285; Southern Maryland Hospital
Center, supra; and Free-Flow Packaging, supra, 566 F.2d at
1129. And, when the status quo is clearly apparent and it can
be said with assurance that the suspension of a wage in-
crease, in response to the filing of a representation petition,
constitutes a change from the status quo, then, as the court
in Plasticrafts, Inc., supra, has ruled (586 F.2d at 188):
[T]here need be no specific finding that the employer
was prompted by anti-union motives. In such a case,
the employer inevitably conveys the message that it, not
the union, controls the purse strings. Employees will
predictably consider that the union is somehow respon-
sible for their failure to receive expected raises.
Accord: Gossen Co., supra, 719 F.2d at 1357–1358; Don’s
Olney Foods, supra, 870 F.2d at 1285; Southern Maryland
Hospital Center, supra. In other words, where an employer’s
practice of granting employees pay raises should be clearly
apparent to an objectively reasonable employer and the em-
ployer, in view of the pendency of a union representation
election, suspends those wage increases, this conduct con-
stitutes a violation of Section 8(a)(1) of the Act, even though
the employer in suspending the increases may not have been
motivated by antiunion sentiments.12 This result is consistent
with the reasoning of the Supreme Court in NLRB v. Ex-
change Parts Co., 375 U.S. 405 (1964), where the Court in
upholding the Board’s finding of a violation in an employ-
er’s grant of benefits during a union campaign, stated,
‘‘[e]mployees are not likely to miss the inference that the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up if it
is not obliged’’ 375 U.S. at 409. The withholding of an es-
tablished benefit of employment which is clearly a part of
the employees’ existing terns and conditions of employment
conveys the same message more directly. And where, as
here, this action is coupled with the employer’s explanation
to the employees that the reason for the withholding of the
expected benefit is that a labor organization has filed a rep-
resentation petition in connection with its campaign to orga-
nize the employees, it has the foreseeable effect of shifting
the blame to the union, thereby interfering with employee
free choice. See NLRB v. Otis Hospital, 545 F.2d 252, 254–
255 (lst Cir. 1976); Gates Rubber Co., 182 NLRB 95–95
(1970).
However, the Board has held that an employer can avoid
a violation in such a case if the employer at the time it sus-
pends or discontinues the employees’ expected benefit makes
it clear to the employees that the only reason for its action
is to avoid giving the appearance of trying to influence the
outcome of the representation election and by informing the
employees that the withheld benefit will be granted following
the election and, in explaining this to the employees, does
not place the onus for the postponement on the union. See
Uarco Inc., 169 NLRB 1153, 1153–1154 (1968); Heckethorn
Mfg. Co., 208 NLRB 302, 306, 1974); Cutter Laboratories,
221 NLRB 161, 167–169 (1975); Sugardale Foods, 221
NLRB 1228, 1228 (1975). In Uarco, Heckethorn, Cutter, and
Sugardale the Board in effect ruled that this type of an ex-
planation was sufficient to overcome or neutralize the fore-
seeable tendency of the withdrawal or suspension of ex-
pected wage increases to interfere with the employees’ statu-
tory right to support a union free from employer interference,
even though in those cases it must have been clearly appar-
ent to the employer, as well as the employees, that the sus-
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pension or withdrawal of the employees’ pay raises was in
obvious derogation of the employees’ existing terms and
conditions of employment. But in Village Thrift Store, 272
NLRB 572 (1983), the Board adopted a different approach.
There the Board indicated that in situations where, ‘‘the ben-
efits at issue have been provided only in a ‘haphazard fash-
ion,’ the employer is faced with a Hobson’s choice of grant-
ing the benefit with no objective evidence available to ex-
plain the timing, thereby risking allegations of unlawful in-
terference with employees’ Section 7 rights or, withholding
the benefits and still being subject to charges of unlawful
conduct,’’ and stated that ‘‘[t]he Board has resolved this di-
lemma by permitting employers to tell their employees that
those benefits previously provided in an indefinite manner
will be deferred during the pendency of organizational efforts
where they make clear that the purpose in doing so is to
avoid the appearance of interference.’’ [Emphasis added.]
272 NLRB at 572–573. In so ruling, the Board in Village
Thrift cited its previous decision in Singer Co., 199 NLRB
1195 (1972), which involved the suspension of benefits of
employment which the Board found were not granted ‘‘pur-
suant to any fixed practice, pattern, or preorganizational an-
nouncement, but the timing and eligibility of the benefits are
purely within the discretion of the employer.’’ 199 NLRB at
1196. See also Pacific Southwest Airlines, 201 NLRB 647
(1973), where the Board indicated that in cases involving
‘‘the withholding of increased benefits, the mechanics and
resolution of which have not been finally formulated’’ that
‘‘full explanation of the reasons for the withholding along
with assurance of future consideration of the withheld bene-
fits, notwithstanding the outcome of the union’s election
campaign, serve to dissipate any assumption that the employ-
ees may or may not have that the union’s presence is the
sole obstacle to the ultimate realization of the promised bene-
fits.’’ 201 NLRB at 647. [Emphasis added.]
It is my opinion that the rationale of the Board’s decision
in Village Thrift more accurately reflects the realities of the
employer-employee relationship. Where it is clearly apparent
to objectively reasonable employers, as well as employees,
that a wage increase is an existing term and condition of em-
ployment regularly expected by the employees, it is unrealis-
tic to give the employer a license to suspend or withdraw
that wage increase just because the increase happens to be
scheduled for a time period which coincides with the holding
of a Board-conducted union representation election and the
employer explains its actions to the employees in terms of
not wanting to interfere with the outcome of the election and
that it intends to grant the wage increase after the election
regardless of the result. For these kinds of expected wage in-
creases are not the kind that an employee will view as an
attempt to buy his or her vote. Quite the opposite, employees
view these kinds of wage increases as a part of their regular
terms and conditions of employment and expect to receive
them as scheduled. In view of this, when an employer in-
forms its employees that this kind of an expected wage in-
crease has been suspended because of the employer’s fear
that it would be construed as a bribe for the employees’
votes, the employees will not believe this explanation. Rath-
er, the employer’s explanation, viewed in its context, will be
seen as a pretext and because of its implausibility ‘‘inevi-
tably conveys the message [to the employees] that [the em-
ployer], not the union, controls the purse strings [and] em-
ployees will predictably consider that the union is somehow
responsible for their failure to receive [the] expected raises.’’
Plasticrafts, Inc. v. NLRB, 586 F.2d 185, 188 (10th Cir.
1978).
Respondent contends when in early March it stopped
granting employees their annual merit wage increases be-
cause of the pendency of the Union’s representation petition,
it did not violate the Act because, when it engaged in this
conduct, it was not motivated by antiunion animus, but acted
in good faith on its legal counsel’s advice that the granting
of annual merit wage increases during the pendency of the
Union’s representation petition could be construed as an at-
tempt to influence the outcome of the representation election,
and that also acting on legal counsel’s advice it neutralized
any possible foreseeable tendency of its conduct to interfere
with employees’ statutory rights by explaining to the em-
ployees that the reason for the suspension of their merit wage
increases was due to Respondent’s desire to avoid the ap-
pearance of election interference and by assuring them that
the increases would be granted when the matter involving the
Union’s representation petition was finally resolved. Re-
spondent also argues that its lawyer’s advice was sound ad-
vice because, in view of the ambiguous nature of the status
quo, if it had granted the increases it would have been placed
in the proverbial ‘‘damned if you do, damned if you don’t
situation,’’ and in view of this ambiguity would ‘‘undoubt-
edly’’ have been charged with the commission of an unfair
labor practice if it had granted the merit wage increases
while the election petition was still pending. I have consid-
ered Respondent’s several arguments and find they lack merit
for the reasons below.
Respondent’s contention that it would undoubtedly have
been subject to unfair labor practice charges if it had contin-
ued to grant annual merit pay increases during the pendency
of the Union’s representation petition and that it was, there-
fore, in a ‘‘damned if you do, damned if you don’t di-
lemma,’’ has been convincingly answered by the court in
Plasticrafts, supra, when it observed that ‘‘there is nothing
intrinsically unfair about either giving raises or not giving
raises. Rather, ‘[t]he cases make it crystal clear that the vice
involved in both the unlawful increase situation and the un-
lawful refusal to increase situation is that the employer has
changed the existing conditions of employment. It is this
change which is prohibited and which forms the basis of the
unfair labor practice charge.’’’ 586 F.2d at 189 fn. 4,
quoting, NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th
Cir. 1970) (emphasis in original). Because, in the instant
case, the Respondent for the past several years has had an
established employment condition of annually evaluating its
employees’ performances on or about their employment anni-
versary dates and pursuant to those evaluations of granting
the employees’ merit wage increases effective on or about
their anniversary dates of employment, Respondent could not
have been found guilty of an unfair labor practice for main-
taining that condition of employment. Therefore, there was
no dilemma.
The fact Respondent retains discretion over whether merit
wage increases will be granted to individual employees, de-
pending on the outcome of each individual’s performance
evaluation, and the fact that the exact amount of the merit
increase is not determined until the evaluation has been com-
pleted, does not render Respondent’s evaluation and merit in-
391KMST-TV, CHANNEL 46
13 In evaluating an employee’s work performance to determine whether the
employee qualifies for a wage increase, the department head uses a standard
employee evaluation form and the employee is shown the form after it has
been filled out by the department head at which time the employee and depart-
ment head discuss the evaluation and thereafter discuss the amount of the
wage increase granted.
14 I note there is no evidence that Respondent’s conduct here was attrib-
utable to its misapprehension of whether there was an established merit wage
increase practice in effect for its employees. Rather it received and acted on
advice that giving merit wage increases during the pendency of a union rep-
resentation petition might itself be found the basis for an unfair labor practice.
(Tr. 188, LL. 4–15 and Tr. 189, LL. 3–15.)
15 I also note that in Heckethorn, unlike the instant case, immediately after
the representation election the employer granted the withheld wage increase
and granted it retroactively. 208 NLRB at 306.
16 Respondent cites J. J. Newberry Co. v. NLRB, 442 F.2d 897 (2d Cir.
1971), and its progeny in support of this position. The Newberry case, how-
ever, is not in accord with the Board’s and the Tenth Circuit’s view of an
employer’s obligation in circumstances such as these, and the Board and Tenth
Circuit have noted their disagreement with the holding of that case.
Plasticrafts, Inc., 234 NLRB 762 fn. 1 (1978), enfd. 586 F.2d 185, 189 (10th
Cir. 1978).
crease program subjective and discretionary. For the Board,
with courts’ approval, has consistently held that merit wage
increases based on employees’ performance evaluations,
identical to Respondent’s merit increase program, are not
subjective and discretionary General Motors Acceptance
Corp. v. NLRB, 476 F.2d 850, 852, 854 (lst Cir. 1973);
Plasticrafts, Inc. v. NLRB, 586 F.2d 185, 187, 189 (lOth Cir.
1978); Gossen Co. v. NLRB, 719 F.2d 1354, 1358 (7th Cir.
1981); NLRB v. Don’s Olney Foods, 870 F.2d 1279, 1285
(7th Cir. 1989); and Gupta Permold Corp., 289 NLRB 1234
(1988). The Board and courts in the aforesaid cases con-
cluded that simply because wage increases are called ‘‘merit
increases’’ and are based on employers’ evaluations of em-
ployees’ work performances, that it did not mean they were
the kind of wage increases employees would view as an at-
tempt to buy their votes, if, as in those cases, they were
based on well-established programs and had been granted in
the past in or about a specified time frame and were tied to
an ongoing evaluation of the employees’ work, using facts
known both to management and the evaluated employee as
well as other employees. This is the situation involved in the
instant case. Here, the record reveals that prior to the advent
of the Union, Respondent had a long-established policy of
granting its employees annual merit wage increases on or
about their anniversary dates of employment13 and that the
employees were aware of this policy and had come to expect
these increases and Respondent was aware of this. In view
of these circumstances, I find that during the time material
it would have been clearly apparent to an objectively reason-
able employer that the granting of these merit wage increases
constituted an existing form of compensation which was an
integral part of the employees’ current terms and conditions
of employment and, as such, the granting of the merit in-
creases would conform to the status quo.14 It is for these rea-
sons that I find without merit Respondent’s contention that
if it had granted the merit wage increases here it would have
been placed in the proverbial ‘‘damned if you do, damned
if you don’t situation’’ and that in view of this ambiguity it
would undoubtedly have been charged with the commission
of an unfair labor practice if it had granted the merit in-
creases while the election petition was still pending.
Freeflow Packaging Corp. v. NLRB, 566 F.2d 1124 (9th
Cir. 1978), J. J. Newberry Co. v. NLRB, 645 F.2d 148 (2d
Cir. 1981), Singer Co., 199 NLRB 1195 (1972), and
Heckethorn Mfg. Co., 208 NLRB 302 (1974), cited by Re-
spondent, are factually distinguishable from the instant situa-
tion. In Freeflow Packaging, the court found the withheld
wage increase was not clearly an expected benefit, thus the
court concluded that the employer had therefore made a
good-faith effort to comply with the law. 566 F.2d at 1130.
In J. J. Newberry, the court found the withheld wage in-
crease was not clearly an expected employee benefit inas-
much as the employees were not aware of the employer’s de-
cision to grant the wage increase nor were the employees
even aware of the employer’s decision to withhold the in-
crease. 645 F.2d at 152. In Singer Co., the Board concluded
the withheld benefits were not ‘‘expected benefits’’ inasmuch
as ‘‘the benefits are not pursuant to any fixed practice, pat-
tern or preorganizational announcement, but both the timing
and eligibility for the benefits are purely within the discretion
of the employer.’’ 199 NLRB at 1196. And, in Heckethorn
Mfg. it was unclear from the employer’s past practice of
granting the general pay raise involved, whether the em-
ployer would have granted the raise during the time frame
preceding the scheduled representation election, thus it was
not clearly apparent to either the employer or the employees
that the grant of the general wage increase during the pend-
ency of the representation election would have been consist-
ent with the status quo. 208 NLRB at 306 fn. 11.15 Here,
unlike the aforesaid cases cited by Respondent, as I have
found supra, it was clearly apparent to all those involved—
Respondent, employees and Union—that Respondent’s grant
of merit wage increases during the pendency of the Union’s
representation petition would have been perfectly consistent
with the status quo.
Likewise without merit is Respondent’s further contention
that its conduct here did not violate the Act because there
is no showing it was motivated by antiunion animus, but that
the record shows it acted in good faith on legal counsel’s ad-
vice that granting the employees their annual merit wage in-
creases during the pendency of the Union’s representation
petition could be construed as an attempt by Respondent to
influence the outcome of the election. Given the Respond-
ent’s clearly established practice of granting employees an-
nual merit wage increases on or about their employment an-
niversary dates, so as to make those increases part of the em-
ployees existing terms and conditions of employment, and
where, as here, Respondent’s withholding of the merit wage
increases was coupled with Respondent’s explanation to the
employees that the reason for the withholding of this ex-
pected benefit of employment was that the Union had filed
a representation petition in connection with its campaign to
organize the employees, it had the foreseeable effect of shift-
ing the blame for the withdrawal of the expected wage in-
creases to the Union, thereby interfering with employee free
choice. In view of these circumstances, assuming there is in-
sufficient evidence to establish that Respondent’s conduct
was motivated by antiunion animus, it is no defense.16
Plasticrafts, Inc. v. NLRB, supra, 586 F.2d at 188–190;
NLRB v. Don’s Olney Foods, supra, 870 F.2d at 1285;
Gossen Co. v. NLRB, supra, 719 F.2d at 1357–1358; and
Southern Maryland Hospital Center v. NLRB, supra. Nor is
Respondent’s position strengthened by its asserted reliance
on the erroneous advice of its attorney, for it is settled that
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 I note that Drilling’s reference to the Union’s ‘‘appeal’’ must have been
a reference to the instant case inasmuch as the Union, which won the represen-
tation election and was certified on July 13 by the Board’s Regional Director
as the employees’ exclusive collective-bargaining representative, filed no ap-
peal (request for review) in the representation case. Because the Union had
won the representation election and at the time of Drilling’s above explanation
to the employees had been certified by the Board’s Regional Director, it is
a fair inference that the employees understood Drilling’s mention of the
Union’s ‘‘appeal’’ to refer to the Union’s unfair labor practice charge in the
instant case which resulted in the complaint charging Respondent with violat-
ing the Act by refusing to grant the employees their annual merit wage in-
creases. Therefore, this aspect of Drilling’s explanation to the employees was
further calculated to lead them to believe that the merit wage increases were
still being withheld in order to penalize them on account of the Union’s ac-
tions and because a majority of them had voted in favor of union representa-
tion.
legal advice is not ‘‘conclusive evidence of a proper motive’’
GAF Corp. v. NLRB, 488 F.2d 306, 309 fn. 10 (2d Cir.
1973); NLRB v. Hendel Mfg., Inc., 483 F.2d 350, 353 (2d
Cir. 1973). In any event, where, as here, an action is inher-
ently coercive, it is not excused by good faith. Federation of
Union Representatives v. NLRB, 339 F.2d 126, 129–130 (2d
Cir. 1964). In short, the Act does not prohibit ‘‘only inten-
tional interferences by an employer with his employees’ free-
dom of association.’’ Hendel Mfg. Co., supra, 483 F.2d at
353. The ‘‘fact that Respondent’s decision was undertaken as
a result of legal advice, of course, does not absolve the Re-
spondent from the responsibility for the course of action un-
dertaken, if in fact it is unlawful.’’ Great Atlantic & Pacific
Tea Co., 166 NLRB 27, 28 (1966).
Having found that by not granting employees their ex-
pected annual merit wage increases because the Union had
filed a representation petition, Respondent foreseeably placed
the employees in the position of assuming and inferring that
the Union was responsible for the withholding of expected
merit wage increases, the question remaining is whether Re-
spondent neutralized the foreseeable tendency of its conduct
to interfere with the employees’ statutory rights. Respondent
argues it did so by subsequently explaining to the employees
that the reason it did not grant them their expected merit
wage increases was to avoid the appearance of election inter-
ference and by assuring the employees the increases would
ultimately be granted, regardless of who won the representa-
tion election. I am of the opinion, for the reasons below, that
Respondent’s explanation to the employees was insufficient
to neutralize the foreseeable adverse effect of its conduct on
the employees’ statutory right to support the Union.
First, Respondent did not assure the employees that when
it eventually got around to reinstating its policy of granting
employees annual merit wage increases, that the employees
who had not received their increases as scheduled would re-
ceive their retroactively to their employment anniversary
dates. Respondent’s failure to assure the employees of this
was a significant omission because the employees will suffer
a financial loss if the withheld merit wage increases are not
reinstated retroactively. It is clear that the employees whose
merit wage increases have been withheld and those who had
reason to fear that their expected raises would be withheld
before Respondent got around to reinstating its policy, would
not have been reassured merely by Respondent’s explanation
that at some indefinite time in the future Respondent in-
tended to reinstate its policy of granting the annual merit
wage increases. As far as the employees were concerned, ab-
sent an assurance that the expected merit wage increases
would be eventually reinstated retroactively to the employ-
ees’ anniversary dates, the employees would suffer a finan-
cial loss on account of the Union having filed a representa-
tion petition as part of its campaign to organize them. Thus,
the inevitable effect of Respondent’s failure to assure the em-
ployees that their withheld merit wage increases would be
eventually granted retroactively was to reinforce the employ-
ees’ initial understanding that they were being penalized be-
cause the Union, as part of its organizational campaign, had
filed a representation petition seeking to represent them.
Second, when Respondent explained to the employees that
it intended to eventually reinstate its policy of granting em-
ployees annual merit wage increases, Respondent was vague
and evasive about when it intended to reinstate the policy.
Rather than simply tell the employees it intended to reinstate
their annual merit wage increases after the election, Execu-
tive Vice President Tucker informed the employees that Re-
spondent would reinstate its program of granting merit wage
increases only when it received ‘‘clearance’’ from its lawyer
and ‘‘everything was taken care of.’’ The lack of assurance
as to exactly when Respondent intended to resume granting
employees their expected annual merit wage increases, when
coupled with Respondent’s failure to assure the employees
that those merit increases which were withheld would be re-
instated retroactively, was further calculated to reinforce the
employees’ initial understanding that they were being penal-
ized because the Union, as part of its organizational cam-
paign, had filed a petition seeking to represent them.
Third, Respondent did not reinstate the employees’ ex-
pected merit wage increases even after the representation
election. As described in detail supra, General Manager
Drilling on July 18 notified the employees that even though
the election had been held 2 months previously, Respondent
did not intend to grant them their expected merit wage in-
creases until two things occurred the ‘‘legal issues’’ posed
by the ‘‘appeals’’ of the Union and Respondent were re-
solved, and Respondent’s lawyer advised management it was
appropriate to pay the merit wage increases. Clearly, this ex-
planation was reasonably calculated to give employees the
impression that even though the representation election had
been held 2 months previously, they would still not be re-
ceiving their annual merit wage increases for an indefinite
period of time. But even more significant is Drilling’s failure
to explain to the employees the connection between the reso-
lution of the ‘‘legal issues’’ posed by the parties’ ‘‘appeals,’’
and Respondent’s alleged fear that reinstating its program of
annual merit wage increases would interfere with the rep-
resentation election which had been held 2 months pre-
viously.17 In view of these circumstances, Respondent’s fail-
ure to reinstate its policy of granting employees their annual
merit wage increases, even after the representation had been
held, was foreseeably and inevitably calculated to lead the
employees to believe they were being penalized by Respond-
ent because the Union, as part of its organizational campaign,
had filed a representation petition and because a majority of
the employees had voted in the representation election in
favor of union representation.
Fourth, following the May 21–22 election Respondent did
not grant the expected merit wage increases to the employees
whose increases had been withheld by Respondent because
of the scheduled representation election and did not reinstate
its policy of granting employees their annual merit wage in-
393KMST-TV, CHANNEL 46
18 As found supra, one of Respondent’s objections to the election was the
Union during its preelection campaign, in attempting to persuade employees
to vote for union representation, had been critical of Respondent for failing
to grant the employees their annual merit wage increases. Also, as found
supra, by at least May 22 Respondent and the employees knew that the
Board’s General Counsel, based on the Union’s unfair labor practice charge,
had issued the complaint in this case alleging Respondent violated the Act by
discontinuing its policy of granting employees their annual merit wage in-
creases.
19 Cutter Laboratories, 221 NLRB 161 (1975), and Uarco, Inc., 169 NLRB
1153 (1968), relied on by Respondent, and Sugardale Foods, 221 NLRB 1228
(1975), not relied on by Respondent, are factually distinguishable In Cutter
Laboratories the employer specifically assured the employees that regardless
of the outcome of the election that their expected wage increase would be
granted retroactively to the date it had been due, and immediately after the
election the employer, as promised, granted the wage increase retroactively to
the date on which it was originally scheduled 221 NLRB at 167–169. In
Sugardale Foods, the employer informed the employees that their expected
wage increases ‘‘were being deferred until the election so that the employer
would not be accused of trying to influence their votes,’’ and after the election
the employees were promptly granted their expected wage increases retro-
actively to their respective employment anniversary dates. 221 NLRB at 1228.
In Uarco after the election the employer promptly granted the employees their
wage increases retroactively even though the Union, which lost the election,
had filed objections to the election; one of the objections was that the em-
ployer had withheld the employees’ pay raises. 169 NLRB at 1153–1154.
20 I have not decided whether Respondent by engaging in the above-de-
scribed conduct also violated Sec. 8(a)(3), as alleged in the complaint, inas-
much as such a finding would not materially alter the remedial order in this
case.
creases. It acted in this manner even though it was abun-
dantly clear by this time, both to the employees and the Re-
spondent, that the Union did not object to Respondent rein-
stating its policy of granting employees their annual merit
wage increases and that the Board’s General Counsel did not
consider such conduct to be an unfair labor practice.18 In
view of these circumstances, Respondent’s failure to grant
the employees their annual merit wage increases, even after
the election, was foreseeably and inevitably calculated to
lead the employees to believe they were being penalized by
Respondent because the Union, as part of its organizational
campaign, had filed its representation petition and because a
majority of the employees had voted in the representation
election in favor of union representation.
It is for all the above reasons—the failure of Respondent
to assure the employees that when it eventually resumed
granting the employees their expected annual merit wage in-
creases that it would do so retroactively; the vagueness and
ambiguousness of Respondent’s statements to the employees
explaining when it intended to resume granting the employ-
ees their expected annual merit wage increases; the failure of
Respondent to grant the employees their expected annual
merit wage increases even after the representation election
and even after it became abundantly clear to Respondent and
the employees that the Union did not object to Respondent
granting the employees their annual merit wage increases and
that the Board’s General Counsel did not consider such con-
duct to be an unfair labor practice—that I find Respondent’s
subsequent explanations to the employees for its failure to
pay them their expected annual merit wage increases due to
the pendency of the Union’s representative petition, did not
neutralize the foreseeable and inevitable effect of Respond-
ent’s conduct, which was to place the employees in the posi-
tion of assuming and inferring that the Union was respon-
sible for their failure to receive their expected annual merit
wage increases.19 In any event, as I have discussed supra,
where, as here, it was clearly apparent to the Respondent, as
well as the employees, that the withdrawal of the employees’
merit wage increases was done in obvious derogation of the
employees’ existing terms and conditions of employment, it
is my opinion that Respondent violated Section 8(a)(1) of the
Act when it withheld the employees’ expected merit wage in-
creases, even though it explained to them that its sole reason
for withholding the increases was to avoid the appearance of
influencing the election and that the increases would be
granted ultimately regardless of the outcome of the election
Village Thrift Store, 272 NLRB 572–573 (1983).
In summation considering that commencing early in March
1989 and continuing thereafter, Respondent ceased its cus-
tomary practice and policy of annually evaluating its employ-
ees’ work performances and in conjunction with those eval-
uations annually granting its employees merit wage increases
on or about their anniversary dates of employment; consider-
ing that this policy had existed for several years before the
advent of the Union and the employees were aware of it and
had come to expect their annual merit wage increases and
that Respondent was aware of this; considering that when
Respondent during the time material withheld the employees’
annual merit wage increases, that it would have been clearly
apparent to an objectively reasonable employer that the
granting of the employees’ annual merit wage increases con-
stituted an existing form of compensation which was an inte-
gral part of the employees’ existing terms and conditions of
employment, and, as such, that the granting of the increases
would conform to the status quo; considering that given Re-
spondent’s clearly established practice of granting these in-
creases and given that Respondent informed the employees
that it was withholding those increases because the Union, in
connection with its organizational campaign had filed a rep-
resentation petition, the employees would foreseeably be
placed in the position of assuming and inferring that the
Union’s effort to organize the employees, i.e., the filing of
the representation petition, was responsible for the Respond-
ent’s withholding of the employees’ expected annual merit
wage increases; and, considering that Respondent’s subse-
quent statements to the employees’ explaining why it had
withheld their expected merit wage increases, not only failed
to neutralize the foreseeable tendency of its conduct to inter-
fere with the employees’ statutory right to support the Union,
but were reasonably calculated to reinforce the impression in
the minds of the employees that the expected increases had
been initially withheld because the Union had filed a rep-
resentation petition in connection with its organizational
campaign and had continued to be withheld even after the
election so as to penalize the employees for having voted in
favor of Union representation; I find that these consider-
ations, in their totality, establish that Respondent violated
Section 8(a)(1) of the Act when, early in March 1989 and
continuing thereafter, it ceased its customary practice and
policy of annually evaluating its employees’ work perform-
ances and in conjunction with those evaluations annually
granting its employees merit wage increases on or about their
anniversary dates of employment.20
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By ceasing in early March 1989 to evaluate its employ-
ees’ work performances and by also at the same time ceasing
to grant its employees their annual merit wage increases pur-
suant to those evaluations, I find Respondent violated Section
8(a)(1) of the Act.
4. 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 has violated Section 8(a)(1)
of the Act by suspending its policy of annually evaluating its
employees’ work performances and as a result of those eval-
uations granting its employees annual merit wage increases,
I shall recommend that it cease and desist and take certain
affirmative action necessary to effectuate the policies of the
Act, including the recommendation that Respondent imme-
diately reinstate and implement the aforesaid policy of annu-
ally evaluating its employees’ work performances and grant-
ing them merit wage increases, and to make whole all of its
employees for any loss of earnings they may have suffered
as a result of the unlawful withholding of their annual, merit
wage increases. The exact sums owing, with interest, shall be
determined in the compliance stage of this proceeding.
[Recommended Order omitted from publication.]