Northern Telecom, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1980

250 N.L.R.B. 564 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northern Telecom, Inc. and Communication Work-
ers of America, Local 10808, AFL-CIO. Cases
26-CA-7776 and 26-RC-5763
July 11, 1980
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On March 10, 1980, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 7, and
renumber the subsequent paragraphs accordingly:
"7. By threatening an employee by referring to
the strength of its opposition to her union activi-
ties."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Northern Telecom, Inc., Nashville, Tennessee, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for present paragraph
l(a):
i In sec. 111,B,3, par. 5 of his Decision, the Administrative Law Judge
inadvertently omitted the word "not" immediately preceding the word
"be" in the third sentence. Accordingly, as corrected, the sentence reads
"Temple testified that Hammond told her that she would not be getting
her merit increases, and the company would not allow her 20 cents more
an hour when she was against them."
I In his Decision, the Administrative Law Judge found that Respond-
ent violated Sec. 8(aXI) of the Act through Supervisor Jerry Hammond's
remark to employee Sharonl Temple referring to the strength of Respond-
ent's opposition to Temple's activities on behalf of the Union The Ad-
ministrative Law Judge, however, inadvertently omitted this finding from
his Conclusions of Law, and failed to reflect the finding in his recom-
mended Order and notice. In the absence of any exceptions to this find-
ing, we will conform the Conclusions of Law, recommended Order, and
notice with the Administrative Law Judge's finding.
250 NLRB No. 85
"(a) Threatening employees with plant removal,
plant closure, or loss of jobs if they select the
Union as their representative, and threatening them
by referring to the strength of its opposition to the
Union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election con-
ducted on April 27, 1979, among the Employer's
employees be, and it hereby is, set aside, and that
Case 26-RC-5763 be, and it hereby is, severed and
remanded to the Regional Director for Region 26
for the purpose of conducting a new election at
such time as he deems that circumstances permit
the free choice of a bargaining representative.
[Direction of Third Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten you with plant re-
moval, plant closure, or loss of jobs if you
select the Union or any other labor organiza-
tion, as your collective-bargaining representa-
tive, nor will we threaten you by referring to
the strength of our opposition to the Union.
WE WILL NOT interrogate you concerning
your union activities.
WE WILL NOT deny you merit pay increases
because of your union activities, nor will we
tell you that merit pay increases are denied for
that reason.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL restore to Sharon Temple the
merit pay increase denied her on or about
March 7, 1979, and make her whole for any
loss of wages she suffered by reason of our un-
lawful action in denying her said merit pay in-
crease, with interest computed thereon.
NORTHERN TELECOM, INC.
DECISION
STATEMENT OF TIHE CASE
CI.AUDE R. WOLF I, Administrative Law Judge: This
consolidated proceeding was heard before me at Nash-
ville, Tennessee, on November 13 and 14, 1979. It is al-
leged that Respondent threatened, interrogated, and
564
NORTHERN TELECOM, INC
denied merit pay increases to employees, in violation of
Section 8(a)(1) and (3) of the Act. In addition, the Union
objects to certain conduct of Respondent which alleged-
ly interfered with the election held in Case 26-RC-5763
on April 27, 1979, and some of these objections are
before me for hearing.' Those objections read as follows:
I. The Employer through its officers and agents
threatened its employees that if the Union was
voted in, the plant will close down and move away.
2. The Employer interrogated its employees as to
why they were for the Union.
3. The Employer by its officers and agents were
electioneering in and around the polling area on the
day of the election, at the time the polls were open.
6. The Employer denied its employees merit
raises because they were for the Union during the
organizing campaign.
8. The Employer intimidated and coerced its em-
ployees in voting against the Union by telling them
that bargaining would begin at the minimum wage,
if the Union was voted in.
Upon the entire record,2 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs and record arguments, I make the fol-
lowing:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent, a Tennessee corporation with an office
and place of business in Nashville, Tennessee, is engaged
in the manufacture and sale of telephone equipment.
Durinq the 12 months preceding the issuance of the com-
plaint, Respondent purchased and received, at its Nash-
ville, Tennessee, location, products valued in excess of
$50,000 directly from points located outside the State of
Tennessee. During the same period of time, Respondent
sold and shipped products valued in excess of $50,000
from Nashville, Tennessee, directly to points located out-
side the State of Tennessee. Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization, within the meaning
of Section 2(5) of the Act.
' Respondent's contention that the objections were not timely filed
was rejected by the Board in its August i. 1979, Supplemental Decision
and Order Directing Hearing The matter is therefore rev judicata. and
Respondent's contention is again rejected by me
2 On February I , 1980, I denied the General Counsel's motion Io
reopen the record Nio appeal from this ruling has been receised
IIIl. HI AlI EGED) UNFAIR I ABOR PRACTICES
A. Context
The Union filed a petition with the Board on May 12,
1978, seeking a representation election among certain of
Respondent's employees. Thereafter, a secret-ballot elec-
tion was conducted on June 23, 1978. On March 27,
1979, the Board directed a second election which was
held on April 27, 1979. The Union lost and then filed the
objections to election considered herein. The Board, on
Auqust 1, 1979, directed a hearing on certain objections.
The charges and amended charges herein were filed on
April 25 and 26, 1979, and duly served on Respondent.
B. Allegations of 8(a)(l) violations
1. Threats by Supervisor Bill Lynch
Employee Edith Fritter credibly testified that on three
different occasions in November and December 1978,
while she was riding to work as she regularly did with
her brother-in-law, Supervisor Bill Lynch,3 he said,
"that he was worried that the union may come in, and if
it did that we may all be without a job because they may
close the plant down," and that he did not know if she
was union or not but he hoped that the Union would not
come in.
I find that Lynch's remarks constituted thinly veiled
threats of job loss and plant closure if the Union were
successful in securing representation rights for the em-
ployees. Threats by its supervisors are imputable to Re-
spondent,4 and it is settled that a threat of plant closure
is "proscribed conduct of the most egregious sort " 5
which will, "all but inevitably," be discussed among the
employees.6 Bill Lynch is an admitted supervisor and
agent of Respondent. Accordingly, I find Lynch's threats
violated Section 8(a)(1) of the Act, and support the
Union's Objection I.
2. Interrogation by Terry Vaughn Bell 7
Employee Beverly Thomas went to Bell's office on or
about February 5, 1979, to discuss matters unrelated to
the Union. Bell concedes that he was aware at the time
that Thomas was a union supporter. According to
Thomas, Bell asked her during some discussion of bene-
fits and other plant matters why she was for the Union,
and she then asked him why he was for the Company, at
which he laughed. She further avers that she then told
him that it was for her protection and he could fire her
right then, to which he responded that "we," presumably
the Company, would not do that.
Bell's version is that Thomas asked him about the
Company and the Union, and said that a union was
needed for several reasons including the fact that she
feared for her job. Bell responded that she had nothing
* Lynch did not testify.
See, e g., Marsh Village Pantres. Inc.. 236 NLRB 323. 325 (1978)
s Joint Industry Board of the Electrical Industry and Pension Commirrtee.
et al. 23R NLRB 1398 (1978)
General Stencils. Inc., 195 NLRB I 109, 1110 (1972)
Bell is the employee relations manager and an admitted super ilor
and agent of Respondent
565
DECISIO)NS ()F NATIONAL L.ABOR RELATIONS BO)ARD
to worry about. Bell denies asking her whether or why
she was for the Union and does not recall whether or
not Thomas asked him why he was for the Company.
I credit Thomas as a spontaneous and convincing wit-
ness with a more precise recollection of the details of
this February conversation. Bell had failures of recollec-
tion as to how the discussion about the Union arose and
what was then said and was not as impressive and believ-
able as Thomas on the course of the conversation. I con-
clude and find that Bell asked Thomas why she was for
the Union, knowing full well that she was, and thereby
unlawfully interrogated her in violation of Section
8(a)(1) of the Act. The mere fact that the tone of the
conversation may have been friendly does not erase the
coercion implicit in such questioning by a high level su-
pervisor such as the employee relations manager, which
Bell is. This violation of Section 8(a)(1) supports Objec-
tion 2.
3. Threats of admitted Supervisor Jerry Hammond
and the denial of a merit pay increase to Sharon
Temple
Temple testified on behalf of the Union at a Board
hearing held in October 1978, apparently on objections
to the June 1978 election, and openly handbilled and
passed out union cards before September 10, 1978. It is
apparent from all this that Respondent was aware, prior
to March 1979, that she supported the Union.
Respondent introduced a merit increase program in
January 1978, under which employees with service of I
year or more are evaluated every 6 months. Ten factors
are evaluated and rated on a scale from I to 5.8 If an
employee receives a composite rating of 30 or more he
or she receives a merit wage increase. If at any succeed-
ing evaluation the employee is rated less than 30 then he
or she loses the merit increase previously attained.
On March 6, 1979, Supervisor Jerry Hammond told
Sharon Temple that he had given her 30 points on the
evaluation, that he had talked to Floor Girl Joan Gun-
ther, who agreed, and that he was going to see about
getting Temple's merit increase approved.9
Hammond gave Temple a rating of 29 on an evalua-
tion form bearing the date March 7, 1979. Temple was
given a rating of 3 on all factors except attendance, on
which she received a 2. Respondent's position is that the
2 rating on attendance was pursuant to established policy
that a verbal warning to an employee, which remains
8 The rating factors are knowledge of job, quality of work, quantity of
work. attendance, contribution to group. responsiveness to directors, ver-
satility, initiative motivation, attitude toward others, and judgment The
numerical ratings convey the following evaluations:
I Poor performance retention based on improvement.
2. Fair performance improvement is necessary
3. Good performance
4. Very good
5 Excellent
9 I credit Temple's detailed testimony on the March 6 conversation
over Hammond's bare denial of discussions with Temple prior to March
8, and I note that Gunther was not called by Respondent to corroborate
Hammond's testimony that he had not discussed Temple's evaluation
with Gunther Although Temple's prehearing statement to the Board in-
cludes no reference to the March 6 conversation. her testimony that she
told the Board agent about it but he elected not to write it down struck
me as an honest recitation given withiout hesitation or artifice
active for I year, requires a rating of 2 during the period
the warning remains active. Temple received a verbal
warning for excessive absenteeism on June 9, 1978, 9
months prior to the evaluation herein at issue. I am per-
suaded by a composite of all the evidence on the matter,
including the testimony of Temple, that such a warning
does remain in an employee's record for I year. That it
always requires a 2 rating, as Respondent's witnesses tes-
tify, is subject to some question. Employee Cheryl
Newby received a rating of 3 on attendance in an evalua-
tion bearing the date October 11, 1979, and she received
a verbal warning on her attendance on the same date. It
is apparent on the face of the verbal warning given to
Temple that the absences for which she was warned oc-
curred prior to the date of the warning. I am persuaded
that it is reasonably probable that the absenteeism for
which Newby was warned took place prior to her Octo-
ber 11, 1979, warning, and that this absenteeism was
known to Supervisor Mitch, who gave Newby the warn-
ing and the evaluation, prior to October 11, 1979. Mitch
testified that the date on the evaluation was the date the
form was due rather than the date of the actual evalua-
tion, and that whether the evaluation is done before or
after the date depends on when the supervisor discusses
it with the employee. No evidence firmly fixing the date
of Newby's evaluation was adduced, nor was there any
exploration or explanation of the question as to why
Mitch gave Newby a 3 on attendance at a time when her
attendance was such as to occasion a warning, whether
or not that warning was actually given before the evalu-
ation was completed. Notwithstanding that any definitive
conclusions on the Newby matter necessarily entails a
degree of speculation in the absence of more solid evi-
dence, it does cast some doubt on the inevitability of a 2
rating after a verbal warning. This doubt is compounded
by the case of employee Grace Lewis who received a
verbal warning on her attendance on February 2, 1978,
and then received a 4 attendance rating by Mitch on an
evaluation of July 28, 1978. Mitch's tentative testimony
that he believes the instruction or rating a 2 on attend-
ance, after a written warning was given after ratings of
July-August 1978 is otherwise unsupported by any pro-
bative evidence to that effect. Moreover, Mitch's "yes"
response to Respondent's leading question, "In other
words, it [the instruction] was given between the August
set of reviews and the next round which was done six
months later?" is not persuasive. The unresolved question
raised by the Newby and Lewis cases with regard to the
uniformity of application of the 2 after warning rule does
not, in my view, in and of itself establish that Temple's
merit increase was unlawfully withheld, but it is a factor
to be considered.
Turning to the significant events of March 8, 1979, I
find that on that date Hammond called Temple to his
office to discuss her evaluation. What happened thereaf-
ter is a matter of disagreement between the two. Temple
testified that Hammond told her that she would be get-
ting her merit increase, and the Company would not
allow her 20 cents more an hour when she was against
them. She asserts that she then said she would keep her
job pride and dignity, she knew she was a good worker
NORTHERN TELECOM. INC
who got along with everyone, and the Company could
keep the 20 cents and she would keep her pride. Her
evaluation was then reviewed and she had 29 points.
They then talked further, and she avers that Hammond
mentioned Respondent had a 99-year lease and could
move at anytime, to which she replied that she did not
believe it would, union or no union. At this juncture, ac-
cording to Temple, Hammond asked if she heard what
he was saying; she said she did, and he said "you're" up
against a big company. She said she had to stick up for
what she believed and was hurting no one. The conver-
sation then drifted into matters irrelevant to this Deci-
sion.
Hammond testified that he opened the conversation
with a statement that the meeting was only for her merit
review and nothing would be discussed except matters
pertaining to the evaluation.'° He denies telling Temple
the Company would not let her get 20 cents more be-
cause she was against them, or discussing anything not
pertaining to the evaluation.
Temple was a careful witness who forthrightly de-
clined to speculate on matters of which she was not cer-
tain, and appeared impressively certain of the content of
the March 8 meeting. She was a more impressive witness
than Hammond, whose testimony was general in nature
and lacking in convincing detail. I credit Temple's ver-
sion of the March 8, 1979, conferences as more reliable
and believable than that of Hammond.
Hammond's statement that she would not get the raise
because she was against the Company was a plain notice
to Temple that she was denied the raise because of her
union adherence, and requires a finding that the overrid-
ing reason for evaluating her in such a way as to deny
her the wage increase was her union activity. The ab-
sences were the excuse, not the cause. Moreover, I have
found that Hammond told Temple of a 30 rating on
March 6 and, assuming arguendo that the 2 on attendance
was valid, I would yet find that Respondent reduced that
rating by one point in some manner best known to Re-
spondent between the time Hammond advised of the 30
rating and March 8. 1 find the denial of the merit in-
crease was designed to discourage union activity and
was, therefore, violative of Section 8(a)(3) and (1) of the
Act. Further, Hammond's references to (1) Respondent's
ability to move, (2) the strength of its opposition to Tem-
ple's activities, and (3) the denial of a raise because of
Temple's activities, individually and collectively violated
Section 8(a)(1) of the Act as threats reasonably calculat-
ed to interfere with, restrain, and coerce Temple in the
exercise of her Section 7 rights.
4. The denial of a merit pay increase to Bessie Lynn
Olivier
Olivier was a union observer at the Board conducted
election among Respondent's employees on June 23,
1978. Her sympathies were thus publicly made obvious.
Supervisor Mitch, although not Olivier's supervisor until
July or August 1978, was employed by Respondent at
iO The General Counsel contends that the only inference that can be
drawn from such a statement is that Hammond did discuss other matters
Although I find that he did in fact discuss other matters, I find this par-
ticular argument by the General Counsel to be without merit
the time of that election and I do not credit his broad
assertion that he had no knowledge of Olivier's attitude
toward the Union at the time of her January 1979 evalu-
ation. It appears from Olivier's testimony, however, that
she engaged in no overt union activity after the 1978
election.
Olivier received her first evaluation, which resulted in
a rating of 30 and a merit wage increase, in early August
1978. Mitch had been her supervisor but I or 2 weeks at
the time. The actual evaluation was therefore performed
by Olivier's previous supervisor, Mosley, with Mitch
merely cosigning. At the end of January 1979, Olivier
was evaluated by Mitch. He gave her a composite nu-
merical rating of 29 which required that she relinquish
the merit increase granted her the previous August.
The ratings given by Mosley in August 1978 and
Mitch in January 1979 were as follows, respectively:
knowledge of job-5, 3; quality of work-4, 3; quality of
work-3, 3; attendance-3, 4; contribution to group-3,
2; responsiveness to directions-2, 2; versatility-4, 4;
initiative-motivation-3, 3; attitude toward others-1, 2;
judgment-2, 3. The respective totals were 30 and 29.
There is no allegation or evidence that Mosley's rat-
ings, within 2 months of Olivier's service as a union elec-
tion observer, were in any particular discriminatorily
motivated. Mitch's January 1979 ratings of Olivier are the
same as Mosley's previous ratings on four factors; higher
on three; and lower on three. Inasmuch as Mosley's rat-
ings are unchallenged and the General Counsel does not
allege or show improvement in Olivier's performance
since Mosley's rating, I am persuaded that there is no
ground upon which to find that Mitch's continuation of
four of Mosley's ratings was improper. Similarly, I find
nothing suspicious in Mitch's raising three of the ratings.
The General Counsel's argument that Mitch did not rate
Olivier high enough on "Attitude Toward Others" and
"Attendance," both of which ratings he increased, is
nothing more than a statement that the Generel Counsel
would have rated Olivier higher in these areas. The Gen-
eral Counsel's opinion that Olivier should have received
a 5 on attendance cannot prevail over Mitch's uncontro-
verted testimony that he never gives a 5 rating "Attitude
Toward Others," like "Contribution to Group," is not
readily measurable by any exact criteria, and the record
does not show that Mitch's judgment on these subjects
was either clearly wrong or colored by antiunion consid-
erations. No probative evidence was proffered or ad-
duced that would indicate any impropriety in reducing
Olivier's rating from 4 to 3 on "Quality of Work."
After sifting the testimony of Olivier, a vague and un-
impressive witness, and Mitch, and the contentions of the
General Counsel, I find that the General Counsel has not
shown that Mitch either used different standards to rate
Olivier than he did to rate others, or disparately applied
the standards to her. I The General Counsel contends
that, inasmuch as Olivier was a union election observer
in June 1978 and Mitch did not give convincing reasons
for rating her low in any category, I should infer the low
I Olivier's case is unlike that of Temple whose rating was deliberately
lowered because of her union actisio, 2 days after a satisfactor) rating.
apparently given in good faith. was reached by Temple's supervisor
567
I)1LCISI()NS O()F[: NATIONAL. LAB3OR RELATIONS BOARD
rating was discriminatorily activated. There are problems
with this contention. Olivier received a merit increase in
August 1978, on the heels of her service as a union ob-
server. There is no persuasive evidence that she contin-
ued in her union activity after August 1978, and no evi-
dence at all warranting any inference that Respondent
patiently lay in wait to penalize Olivier at her second
evaluation.
In a nutshell, the General Counsel's argument amounts
to a declaration that it is not reasonable that Mitch did
not rate Olivier sufficiently high to retain her merit in-
crease. That declaration is not, however, supported by
substantial evidence in the record. The mere fact that an
employee who serves as a union election observer re-
ceives an adverse performance rating some 7 months
later, after receiving a favorable rating 2 months after
her election service, does not make a violation of the
Act. I find no reason on the record before me to con-
clude that Mitch deliberately juggled Olivier's ratings to
arrive at 29, or to conclude that his rating was either
clearly unreasonable or was based in any part on unlaw-
ful motivation. Nor do I perceive any evidentiary justifi-
cation for substituting my judgment for his, thereby ar-
riving at a higher rating.
I conclude and find that the General Counsel has not
shown by a preponderance of the credible evidence that
Bessie Lynn Olivier was unlawfully denied a merit pay
increase.
IV. THE OBJECTIONS
A. Objections 1, 2, and 6
The matters alleged in Objections 1, 2, and 6 have
been found hereinabove to be unfair labor practices, and
therefore ccnstitute objectionable conduct,i2 and Objec-
tions 1, 2, and 6 are sustained.
B. Objection 3
The hours of the election were from 1:30 p.m. to 4:45
p.m. and 6:45 a.m. to 7:00 a.m. The conduct complained
of occurred during the afternoon session.
Employees were released to vote in departmental
groups which were led to the polling area by the parties'
election observers. This process was initiated in each in-
stance by the union observer holding up a sign notifying
the employees the polls were open, and the Employer
observer then read aloud a prepared statement which
had been given her by the Board agent conducting the
election. I credit the Employer's observer, Buckliew,
that she gave no signals to employees to cheer or other-
wise demonstrate, but, rather, raised her hands to read
the prepared announcement. As the groups of voters
were conducted to the polls, other employees in depart-
ments enroute would cheer "Vote No!" and shake pom-
poms. Some of these demonstrators wore straw hats with
"Vote No" insignias on them, and wore buttons with a
like message. It appears that there may have heen some
employees shouting "Vote Yes," but it is clear that the
cheering was initiated by the "Vote No" group who
were more numerous and demonstrative. All of this
12 Dal-lt OpitMal Company, Inc. 137 Nl.RB 1728. 1786 (1962)
cheering went on outside the polling area, and it does
not appear that anything similar occurred in the voting
room or that there was any voting line extending outside
the polling area.
Although there was some testimony to the effect that
there may have been supervisors in the departments
during the cheering, I do not credit it. All the supervi-
sors were congregated in a glass enclosed office through-
out the election. Some of them were wearing straw hats
with "Vote No" insignia thereon and had similar insignia
displayed elsewhere on their person. They made no
overt effort to encourage or discourage the cheering by
means of signals to employees. Testimony to the con-
trary is discredited. Although the exact number is not
shown by the record, it appears from the testimony of
Personnel Director Olson that about half of the elector-
ate passed the office wherein the supervisors were locat-
ed enroute to the polls. I am inclined to discount the oth-
erwise unsupported testimony of union observer Gregory
that supervisors shouted "Vote No!" through the glass as
voters passed by.
The evidence does not support a finding that employer
agents actually electioneered in and around the polling
area during the election. What it shows is employee elec-
tioneering utilizing paraphernalia previously supplied by
the Employer. There is no showing that employees were
instructed or enticed to use this material as part of any
Employer-planned demonstration such as transpired.
Moreover, I am persuaded that the conduct complained
of did not take place in a no-electioneering area. There is
no evidence of any agreement delineating the no-elec-
tioneering area, and, keeping in mind that the Board
agent herein took no action to admonish the demonstra-
tors or otherwise halt their electioneering, the facts of
this case indicate that the only area specifically designat-
ed as inviolate was the enclosed polling area itself upon
which none of the electioneering encroached. Nor is a
prima facie showing made that the electioneering was at-
tributable to the Employer. The cheering that went on
had no ascertainable elements of coercion, and I do not
believe that the conduct complained of was of such a se-
rious nature that it was impossible, or even unlikely, that
the voters could and did cast their ballot as they freely
chose. I agree with the Employer that N.L.R.B. v. Aaron
Bros. Corp., 563 F.2d 409 (9th Cir. 1977), is applicable to
this objection. Accordingly, Objection 3 is overruled.
C. Objection 8
The Employer conducted meetings with groups of its
employees on April 18, 19, and 20, 1979. The witnesses
testifying on the employer statements complained of in
Objection 8 attended meetings on April 20.
Careful consideration of the testimony of the various
witnesses, pertinent prehearing statements, and their
comparative demeanor and testimonial certainty, per-
suades me that the following is a fair and logically prob-
able synthesis of what was said by employer officials and
agents Olson, Posey, and Bubel. It is not entirely clear
who made which statement, but I find that the employ-
ees were told that if the Union got in everything would
have to he negotiated; the Employer would start its bar-
NORTHERN TEl.ECOM, INC
gaining from the minimum wage, with a blank sheet of
paper; thereafter it would bargain hard; and the negotia-
tions might result in gains or losses of existing employee
benefits. I credit Olson that he told employees that all
wages and benefits would be frozen at existing levels
during negotiations. ' I specifically find that employees
were not told their pay rate would be reduced to the
minimum wage. I believe this to be an erroneous percep-
tion that the Employer's expressed intention to start its
bargaining with a minimum wage offer meant wages
would immediately be cut to that level during bargain-
ing. In substance, the Employer's message was that exist-
ing wages and benefits would remain constant pending
the outcome of hard bargaining which might result in in-
creases or decreases inasmuch as all such wages and
benefits were subject to negotiation. I am of the opinion
that the testimony of employees to the contrary was an
expression of what they thought the Employer meant
rather than what was actually said, and I find that the
evidence proffered by the Union, to the extent I have
credited it, does not warrant sustaining Objection 8, and
it is overruled.
CONCLUSIONS OF LAW
1. The Respondent, Northern Telecom, Inc., is an em-
ployer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Communication Workers of America, Local 10808,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening employees with plant closure and
loss of their jobs if the Union were voted in, Respondent
violated Section 8(a)(1) of the Act.
4. By interrogating employees with respect to their
union activities, Respondent violated Section 8(a)(1) of
the Act.
5. By threatening employees with plant removal if
they selected the Union to represent them, Respondent
violated Section 8(a)(1) of the Act.
6. By telling an employee that a merit pay increase
was withheld because of union activities, Respondent re-
strained and coerced employees in violation of Section
8(a)(1) of the Act.
7. By denying a merit pay increase to Sharon Temple
in order to discourage union activities, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
8. Respondent did not commit any other unfair labor
practices alleged in the complaint.
9. All production and maintenance employees and sec-
tion leaders employed at the Employer's Nashville, Ten-
nessee, location, excluding all office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
10. Objections 1, 2, and 6 to the conduct of the elec-
tion in Case 26-RC-5763 should be sustained, and Objec-
tions 3 and 6 should be overruled.
II There is no showing that there were any pending increases in wages
or other benefils than would be adversely affected by this freeze
THIi RilMI.l)Y
In addition to the usual cease-and-desist order and
notice posting, I shall recommend that Respondent be
ordered to grant Sharon Temple the merit pay increase
taken from her on or about March 7, 1979, and make her
whole for any wages lost as a result thereof with interest
thereon to be computed in the manner prescribed in F
W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). ' 4
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I herebv issue
the following recommended:
ORDER'i
The Respondent, Northern Telecom, Inc.. Nashville,
Tennessee, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with plant removal, plant
closure, or loss of jobs if they select the Union as their
representative.
(b) Interrogating employees concerning their union ac-
tivities.
(c) Telling employees that merit pay increases are
withheld because of their union activities.
(d) Denying merit pay increases in order to discourage
employee's union activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Restore to Sharon Temple the merit pay increase
unlawfully denied her on or about March 7, 1979, and
make her whole for any loss of pay suffered by reason of
said unlawful denial. Said backpay shall be computed in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Nashville, Tennessee, facility, copies of
the attached notice marked "Appendix." 16 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
'4 See, generally, isis Plumbing & Heating Co , 138 NLRB 710 (1962)
'i In the event no exceptions are filed as provided by Sectlion 102 46
of the Rules and Regulationis of the National l.abor Relations Board. Ihe
findings, conclusions, and recommended Order herein shall. as pro, ided
in Section 10248 of the Rules and Regulations. behr adopted hs the Board
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed wsaised for all purposes
'" In the event that this Order is enforced hb a Judgment of a lUnited
Slates Court of Appeals, the ssords in the notice reading "Posted h!
Order of the National Labor Relations Board" shall read "Posted Pursu
ant to a Judgment oif the United States Court of Appeal, Enforci. g in
Order of the National Labhor Relations Board "
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that those portions of
the complaint found to be without merit are hereby dis-
missed.
IT IS F URTHER RECOMMENDED that the election held
on April 27, 1979, in Case 26-RC-5763 be, and it hereby
is, set aside, and that Case 26-RC-5763 be, and the same
hereby is, remanded to the Regional Director for Region
26, for the purpose of conducting a new election.
570