Orval Kent Food Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 402 (N.L.R.B. 1986)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orval Kent Food Company , Inc. and Local 738,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 13-CA-24910
31 January 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 15 August 1985 Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
We agree with the judge's findings that the Re-
spondent violated Section 8(a)(1) of the Act by
promulgating, maintaining, and enforcing a dis-
criminatory, no-talking rule; by threatening dis-
charge or other reprisals against employees because
of their union activities; and by promising a wage
increase in the event the employees were no longer
represented by the Union. For the following rea-
sons, however, we disagree with the judge's fur-
ther finding that the Respondent violated Section
8(a)(3) by failing to consider its maintenance em-
ployees for or to grant them merit increases on or
after 15 September 1984.2
The record shows that, prior to the advent of
the Union at the Respondent's facility, the Re-
spondent had no uniform practice of granting merit
increases to its maintenance employees. The Re-
spondent had reviewed the performance of em-
ployees and had granted merit increases, but this
was done on a generally irregular basis and at the
discretion of management. In May, the Respondent
granted all maintenance employees a general wage
increase of 30 percent in connection with its
change in work schedules which had caused em-
ployees a substantially decreased opportunity to
work overtime.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Hereafter, all dates refer to 1984 unless noted otherwise
In the meantime, in April an organizing cam-
paign among the maintenance employees had com-
menced at the Respondent's facility. An election
was held on 20 June, and on 28 June the Union
was certified as the collective-bargaining represent-
ative for the Respondent's maintenance employees.
Thereafter, the parties engaged in contract negotia-
tions, which were still in progress at the time of
the June 1985 hearing before the judge. During
these negotiations, the Respondent made a proposal
concerning its right to grant merit increases and
also proposed a general wage increase. The Union
vacillated regarding the Respondent's merit in-
crease proposal, and it rejected the Respondent's
general wage increase proposal. Since the general
wage increase was implemented in May 1984, no
wage increases, either general or merit, had been
granted to the maintenance employees as of 10
June 1985, the first day of the hearing before the
judge. The Respondent's maintenance superintend-
ent, Zastrow, testified that he did not grant any
merit increases in the June 1984-1985 time period
because of the ongoing negotiations with the Union
and that, had the Union not come into the shop, he
would have granted merit increases to his crew or
at least to some of them.
The judge found violative of Section 8(a)(3) the
Respondent's failure to consider or to grant the
maintenance employees merit increases from 15
September 1984.3 The judge rejected the Respond-
ent's contention that, in May 1984, it had discontin-
ued its established practice of granting merit in-
creases at irregular intervals and thereafter would
grant annual reviews of all employees dating from
the May 1984 general wage increase. In so doing,
the judge noted that the Respondent had proposed
both merit and general wage increases at the nego-
tiating sessions with the Union. She also noted Zas-
trow's testimony that the negotiations with the
Union were the sole reason he had not granted any
merit increases after the Union's certification and
that merit increases would have been granted had
the Union not come into the shop. In finding the
Respondent's conduct to have been motivated by
an antiunion purpose, the judge noted certain of
the Respondent's statements which were found to
violate Section 8(a)(1) and other conduct outside
the 10(b) limitation period which she concluded
showed Zastrow's strong opposition to the Union.
In finding the violation, the judge noted particular-
ly Zastrow's testimony that he would have granted
merit increases had the Union not come into the
shop.
2 The judge limited the period of the violation to the 6 months preced-
ing the filing of the charge on 15 March 1985
278 NLRB No. 57
ORVAL KENT FOOD CO 403
As noted above, we disagree with the judge's
finding that the Respondent's failure to consider or
to grant merit increases to the maintenance em-
ployees from 15-September 1984 violated Section
8(a)(3). In this regard, the record clearly shows
that the Respondent had no consistent, uniform
practice of granting merit increases but had only an
irregular practice of granting merit increases on a
discretionary basis. It is well established that dis-
cretionary merit increases are a mandatory subject
of bargaining. NLRB v. Katz, 369 U.S. 736, 745-
747 (1962). In fact, the Respondent presented a
proposal to the Union regarding management's
right to grant merit increases. The Union did not
accept that proposal. In these circumstances, it has
not been established that the Respondent's failure
to grant merit increases was due to union animus
rather than to the parties' failure to reach agree-
ment on this issue. Contrary to the judge, we do
not attach significance to Zastrow's testimony at-
tributing the withholding of merit increases to the
ongoing negotiations and to the presence of the
Union in the shop. These remarks were merely a
realistic statement of the effects of the bargaining
obligation which the Respondent incurred when
the Union was certified to represent the mainte-
nance employees. There is no allegation here that
the Respondent failed to meet its bargaining obliga-
tion on this matter, and the evidence is insufficient
to establish that its withholding of the merit in-
creases was for any reason other than the parties'
failure to agree on this issue. See Ithaca Journal
News, 259 NLRB 394 (1981). Accordingly, we
shall dismiss this allegation, and we shall modify
the judge's recommended Order accordingly.4
ORDER
The National Labor Relations Board orders that
the Respondent, Orval Kent Company, Inc.,
Wheeling , Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Promulgating , maintaining, and enforcing a
rule which forbids employees to discuss unions
during periods when they are expected to be ac-
tively working , even when such discussion does
not interfere with work, but which permits em-
ployees, during such periods, to discuss other non-
work subjects.
(b) Threatening to discharge or inflict other re-
prisals on employees for union activity.
4 In dismissing this allegation , we have considered the 8(a)(1) violation
we have found in Zastrow's telling an employee that the employees
could get a raise on 21 June 1985 ( 1 year after the Union's election victo-
ry) when the Union was voted out. In light of our above discussion,
however, we find the 8(a)(3) allegation has not been established in this
case
(c) Promising, employees wage increases once
they are no longer represented by Local 738, Inter-
national Brotherhood- of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization.
(d) In any- like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act. -
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind its rule which forbids employees to
discuss unions during periods when they are ex-
pected to be actively working, even when such dis-
cussion does not interfere with work, but which
permits employees, during such periods, to dicuss
other nonwork subjects. -
(b) Post at its Wheeling, Illinois facility copies of
the attached notice marked "Appendix."5 Copies
of the notice, on forms provided by the Regional
Director for Region 13, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT promulgate, maintain, or enforce
a rule which forbids you to discuss unions during
periods when you are expected to be actively
working even when such discussion does not inter-
fere with work, but which permits you, during
such periods, to discuss other nonwork subjects,
and WE WILL rescind our rule to this effect.
WE WILL NOT threaten to discharge or inflict
other reprisals on you for union activity.
WE WILL NOT promise you wage increases once
you are no longer represented by Local 738, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
ORVAL KENT FOOD COMPANY, INC.
Douchan Pouritch, Esq., for the General Counsel.
Anthony G. Erbacci, Esq., of Chicago, Illinois, for the
Charging Party.
Joseph P. Carey, Esq., of White Plains, New York, for the
Respondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Chicago, Illinois, on 10 and
11 June 1985, pursuant to a charge filed on 15 March
1985 and a complaint issued on 30 April 1985, and
amended on 11 June 1985. The complaint as amended al-
leges that Respondent Orval Kent Food Company, Inc.
violated Section 8(a)(1) of the National Labor Relations
Act by promulgating, maintaining, and enforcing a no-
solicitation rule which discriminated against employees'
union activities; by threatening reprisals against employ-
ees for activities on behalf of Local 738, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union); and by promising
employees pay increases if the Union lost a representa-
tion election . The complaint further alleges that Re-
spondent has violated Section 8(a)(1) and (3) of the Act
since 15 September 1984 by suspending its practice of
performing annual reviews of its employees and imple-
menting accompanying wage increases as a result of its
ongoing collective bargaining with the Union.
On the basis of the entire record,' including the de-
meanor of the witnesses, and after due consideration of
the briefs filed by counsel for the General Counsel and
Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation with an office and place
of business in Wheeling, Illinois. Respondent has at all
material times been engaged in the manufacture and non-
retail sale and distribution of food products. During the
calendar year preceding the issuance of the complaint, a
representative period, Respondent sold and shipped from
its Wheeling facility products, goods, and services valued
in excess of $50,000 directly to points outside Illinois. I
find that, as Respondent admits, it is engaged in com-
merce within the meaning of the Act, and that assertion
of jurisdiction over its operations will effectuate the poli-
cies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
About April 1984, employee Napoleon and another
employee started to pass out union authorization cards to
the other maintenance employees. Napoleon induced be-
tween three and five of his fellow employees to sign
cards. On 11 May 1984 the Union petitioned for a repre-
sentation election among Respondent's employees. On an
undisclosed date before the election, Maintenance Super-
intendent George Zastrow, who is admittedly a supervi-
sor and is Napoleon's immediate superior, told Napoleon
that Zastrow was going to win and the Union would
lose.2 Just before the election, which was held on 20
June 1984, Zastrow told Napoleon that the Union was
"not going to do for [the employees] anything good as
the Company." He said that Respondent' s insurance "is
going to be better than the union insurance." He went on
to say that Napoleon was getting overtime, had recently
received a 30-percent raise (see infra, part II, D), and
had received his review (see infra, part II, D) and what-
ever else he wanted: "What do you need the Union for?"
The Union won the ensuing election on 20 June 1984
and was certified as the maintenance employees' collec-
tive-bargaining representative on 28 June 1984. The
Union's observer at that election was maintenance em-
ployee John S. Sandberg, who had induced about six of
his fellow employees to sign union cards in late April
and early May 1984. During Sandberg's wage review in
January 1984, Zastrow had told him that Respondent
was going to need some more "white helmets" (the hel-
i At the instance of Respondent's counsel, the preheanng affidavit of
witness Edward Napoleon was received without objection or limitation
and to show the truth of the contents
2 My findings about this incident are based on Napoleon's preheanng
affidavit (see supra fn 1). Because he was not asked about the incident, I
reject Respondent's contention that his failure to testify about it reflects
on his credibility.
ORVAL KENT FOOD CO. 405
mets worn by supervisors) and to be patient, "take it
easy, you will make it." During the election campaign,
Zastrow told Sandberg, "If you get a Union, I can't give
you your white helmet." About a month after the Union
won the election, Zastrow told Sandberg, "I can't give
[a white helmet] to you now because you have a Union."
On more than one occasion after the Union's June 1984
certification and before 7 March 1985, Zastrow told
some of his subordinates, "Well, you guys got a Union
now and we have to start writing. I am going to write
you up three times and then you will be fired. There is
nothing I can do." On an undisclosed date after the elec-
tion, when Napoleon was in Zastrow's office discussing
overtime, Zastrow said, "You don't want the overtime,
you want the Union . . . you [obscene verb] me and are
trying to [obscene infinitive] the Company;" to which
Napoleon replied that it was "not nice" talking to him
like this (see supra fn. 1).3
After the Union's June 1984 certification, the parties
engaged in contract negotiations which were still in
progress as of the June 1985 hearing.
B. The Allegedly Unlawful No-Talking Rule
The maintenance department supervised by Zastrow
consists of about 13 employees. Zastrow testified that on
a particular occasion in 1985, on overhearing employee
Napoleon discussing union activities with other employ-
ees while he was on the job, Zastrow told' Napoleon
"there is no union activity during working hours other
than lunch and break time. This is my rules." Zastrow
went on to testify that Napoleon replied Zastrow could
not stop him, to which Zastrow replied, "Try me." Still
according to Zastrow, he told Napoleon that if he con-
tinued such union activity during such periods, Zastrow
would write him up; to which Napoleon replied that
Zastrow could not write him up on something like that.
Zastrow went on to testify thereafter he told all 13 of his
subordinates, "absolutely no union activity during work-
ing hours," other than at lunch or break; whereupon Na-
poleon discontinued such activity during such periods.
Zastroow further testified that he permits employees to
discuss, while actively working and so long as the dis-
cussion does not interfere with work, any subject except
unions , religion, and politics . He testimonially explained
these, exceptions on the ground that if these three sub-
jects are discussed , "there is going to be a fight."
C. The Alleged Unlawful Threats and Promises
In October or November 1984, Napoleon came to Zas-
trow's office and asked him for more overtime work.
Zastrow told him that overtime was' distributed "as we
need." Zastrow further said that he'was waiting for the
contract between Respondent and the Union, that with a
contract he would be able to write Napoleon up for
three reasons, and that then Zastrow would get rid of
3 All the events previously described under this heading either oc-
curred more than 6 months before the charge was filed, or were not
shown to have occurred at a later date . My findings under this heading
about the remarks made by Zastrow are based on Sandberg's testimony,
Zastrow's testimony , and Napoleon 's testimony and/or his prehearmg af-
fidavit (see supra fn. 1).
Napoleon. Zastrow said , "if this is the way you want it,
the this is the way it will be." Zastrow testified that at
no time since his initial August 1982 employment by Re-
spondent as the maintenance superintendent had he ever
used a system of progressive warnings culminating in
"final suspension." Zastrow further testified that when
previously working as a supervisor for employers other
than Respondent, he had implemented union contracts,
including contractual disciplinary clauses, "by the
book."4
In February 1985, Napoleon again came to Zastrow's
office to ask for more overtime. Zastrow said that man-
agement , had told Zastrow to get rid of Napoleon be-
cause he had been influencing some other "guys" about
the Union. Zastrow said that Napoleon had to keep his
mouth shut, and said, "[d]on't talk about the Union."
Zastrow said that if he heard again from Napoleon that
he was talking about the Union, Zastrow would take him
up to Zastrow's office and Napoleon would not have a
job any more. Zastrow said , "If you want to keep your
job you should keep your mouth shut; don't talk about
the Union." After this conversation, Napoleon aban-
doned his previous activity of talking to almost all the
other employees about "what the Union was going to do
for us, the better wages, better conditions and probably
the overtime."
My findings in the preceding paragraph are based on
Napoleon's testimony, corroborated by his prehearing af-
fidavit (see fn . 1, supra). Zastrow did not deny telling
Napoleon that he would be discharged if he did not keep
his mouth shut about the Union. However, Zastrow did
deny telling Napoleon that management wanted to fire
him. For demeanor reasons, I do not credit Zastrow in
this respect. In addition to relying on such discredited
testimony by Zastrow, Respondent's counsel contends,
somewhat inconsistently, that in testifying that Zastrow
told him in February 1985 that top management wanted
to get rid of him, Napoleon had in mind an October 1983
incident (unrelated to the Union) involving fellow em-
ployee Link.5 Senior Vice President Stanley Winton tes-
tified that he suggested that Napoleon be discharged be-
cause of that incident; and that owing to Zastrow's op-
position to Winton's suggestion , Respondent sent Napo-
leon a memorandum imposing , without making a judg-
ment about his guilt or innocence, a 3-day suspension be-
cause 5 hours of "valuable company time" were wasted
in a meeting conducted in consequence of his involve-
ment in the incident. However, Respondent relies on evi-
dence that Zastrow's October 1983 intercession on Napo-
leon's behalf was revealed to Napoleon in April 1985, a
month after he executed the prehearing affidavit which
4 My findings about this incident are based on Napoleon 's and Zas-
trow's uncontradicted testimony and on uncontradicted portions of Napo-
leon's prehearmg affidavit (see supra fn 1)
5 The General Counsel has moved to strike from the record all refer-
ence to the Link incident. I do not believe this action is called for by
either the 15-month interval between the Link incident and Zastrow's al-
legedly unlawful remarks, or the testimony by Zastrow that he never
told Napoleon that top management wanted to fire him ., Rather, such
considerations go to the weight of the evidence sought to be struck
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described Zastrow's February 1985 remarks about top
management's desire to discharge Napoleon.6
About early March 1985, Napoleon went to Zastrow's
office to ask for overtime work. Zastrow said that if Na-
poleon wanted more money he could wait until 20 June
1985 (1 year after the election won by the Union on 20
June 1984), when there was going to be another election.
Zastrow said that when the Union was voted out on 20
June, all the maintenance department employees could
go to his office on 21 June and they would get a raise.'
On 7 March 1985, while Zastrow and maintenance em-
ployee Sandberg were drinking coffee, Zastrow re-
marked that he had heard rumors that the mechanics
were feeling they were going to be fired after 20 June
1985, which was 1 year after the representation election.
Zastrow said that no mechanics would be fired on 21
June, and that everybody would still have a job. Sand-
berg said that he did not believe this. Angered by this
remark, Zastrow said that the Union was not going to do
the employees any good; that if Sandberg thought the
Union was going to help the employees, he was wrong;
that Zastrow was going to run the maintenance shop the
way he wanted to; and that nobody was going to tell
him what to do. Zastrow said that no business agent was
going to tell him how to run Zastrow's maintenance de-
partment; and, in earthy language, said that if Manney
Pearl (the Union's business agent) came around, Zastrow
would kick him. Sandberg asked Zastrow if he would
fire a certain mechanic if he had been ordered to do so
"up front." Zastrow said yes. He said that if Sandberg
dropped the Union, things would go back the way they
were and "we wouldn't have any trouble." Zastrow said
that he could not get any ' money until 21 June, but on '21
June he could.
My findings in the preceding paragraph are based on
Sandberg's testimony. Zastrow testified that Sandberg
said he had heard a rumor that Respondent was going to
fire everyone who was active in the Union, Zastrow
6 Respondent's evidence consisted of testimony by Personnel Director
Florence Demer that about early April 1985 she told Napoleon about
Zastrow's intercession in connection with the October 1983 Link inci-
dent According to Demer, during this April 1985 conversation she also
told Napoleon that Zastrow had'interceded on Napoleon's behalf in con-
nection with an alleged incident, about December 1983, in which Napole-
on had allegedly burned employee Brown's jacket and neck with a blow
torch, the record is otherwise silent about this alleged safety violation
For demeanor reasons, I credit Napoleon's testimony, which is corrobo-
rated by his prehearing affidavit (supra in 1), about the content and date
of his conversation with Demer which, according to him, occurred in
February 1985. However, this testimony by Napoleon fails to provide
any connection between the 1983 incidents and his February 1985 con-
versation with Zastrow.
7 My findings in this paragraph are based on Napoleon's testimony, es-
sentially corroborated by his preheanng affidavit (see supra fn. 1). In
crediting Napoleon, I have taken into account Napoleon's admission that
he believed Zastrow was not fair with him because, in order to receive
overtime, he had to ask Zastrow for it while other employees did not,
Napoleon's uncontradicted testimony that he told Zastrow he did not
want a $1 (actually, 90 cents) May 1984 individual increase which he in
fact received, and the statements in his prehearmg affidavit that he had
been replaced as a leadman by a new employee who was paid more than
he, that he believed Respondent had discriminated against him on unspec-
ified dates with respect to, overtime assignments ; and that he had been
classified at the lowest rate in Respondent's collective-bargaming propos-
al. In view of the credible and partly uncontradicted evidence regarding
Zastrow's antiunion and/or coercive remarks on other occasions and, for
demeanor reasons, I do not credit Zastrow's denial.
denied that Respondent had such plans, and Sandberg
said he did not believe this and "took off." Zastrow also
denied threatening to kick Pearl (whom Zastrow denied
having met), and testified to wearing a different size shoe
than the one which (according to Sandberg) Zastrow
claimed during this conversation. Respondent contends
that Sandberg is not worthy of belief because he was ad-
mittedly annoyed by Zastrow's action in hiring a new
employee as assistant supervisor instead of promoting
Sandberg to this position; because Respondent's May
1984 changes deprived him and others of overtime work;
and because Sandberg testified that he had never seen
Zastrow physically perform mechanics' work and did
not know what mechanical knowledge he had "as far as
hands on," notwithstanding Zastrow's otherwise uncon-
tradicted testimony that on numerous occasions he had
worked side by side with Sandberg on mechanical equip-
ment . Further, Respondent challenges Sandberg's credi-
bility on the ground that he evinced resentment against
Respondent by stating, in his prehearing affidavit, that
Respondent had proposed to the Union a classification
system which put him in the lowest classification and put
only nonunion employees above the entry level. In addi-
tion, - Respondent contends that Sandberg should not be
believed because nothing in Sandberg's testimony reiter-
ates the statement in his prehearing affidavit that in as-
signing overtime, Respondent discriminated against. union
members during periods, some of which may-have fallen
within the 10(b) period; Sandberg was not asked about
these portions of his-affidavit, which are irrelevant to the
complaint allegations . In view of other and partly unden-
ied evidence that Zastrow made antiunion and/or coer-
cive remarks and, for demeanor reasons, I credit Sand-
berg.
D. The Alleged Unlawful Conduct Regarding Wage,
Reviews and Increases
Zastrow became Respondent's maintenance supervisor
in August 1982. Between that date .and the June 1985
hearing before me, it was he who, decided, at least initial-
ly, when maintenance employees were to receive wage
increases and how much they were to receive.
Employee Sandberg testified that in July 1983 Zastrow
told him that Zastrow wanted to follow the policy of
giving each employee a wage review each year on the
anniversary date of his hire and, if a mechanic was doing
"real good work," giving him a 6-month review. Zas-
trow did not deny , making such statements to Sandberg.
However, Zastrow testified that he gave an employee a
wage increase whenever Zastrow believed the employee
was entitled to receive one, and that there was "no
policy." He further testified that before the May 084
general wage increase, the only wage increases he had
ever given were merit wage increases.
The wage history of Sandberg, Fidorf, and Berg, and
(at least arguably) Gerleve, Hudgens, Owens, Rami,
Weeber, Fuoss, and Hook is consistent with Zastrow's
description to Sandberg of Zastrow's wage increase
ORVAL KENT FOOD CO. 407
policy8 However, the wage history of the approximately
three other employees (Napoleon, Schmidt, and Link),
whose 6-month or 12-month anniversary dates fell while
Zastrow was maintenance superintendent, does not con-
form to Zastrow's preferred policy as described to Sand-
berg.
On 7 May 1984, 4 days before the Union filed its peti-
tion, Respondent gave a 30-percent wage increase to all
the maintenance employees. This increase was concomi-
tant to and a result of certain scheduling changes which
caused a substantial diminution in the number of hours
for which employees were paid time and a half or double
time.9 Winton testified that when deciding on this May
1984 increase, management planned to review wages a
year later-that is, in May 1985-and to give wage in-
creases. He testified that Zastrow participated in the
foregoing decisions, including the decision to make 9
May 1985 "a new basis of anniversary date reviews." Re-
spondent's counsel averred in his opening statement that
in May 1984 "the prior practice of irregular and, in some
cases, regular date of hire annual increases but not for
all, was discontinued in favor of an overall once yearly
review and/or increase for all the bargaining [unit] em-
ployees as [has] been done in other operational units of
the Company."
No maintenance employees received any wage in-
creases between 7 May 1984 and the first day of the
hearing before me on 10 June 1985. Zastrow testified
that the only reason for Respondent's failure to give
wage increases or merit wage increases during this 13-
month interval was the fact that Respondent was having
negotiations with the Union. Zastrow further testified
that if the Union had not come into the shop at all, he
would have 'given his crew or some of them merit in-
creases between June 1984 and the June 1985 hearing;
and that all Zastrow's subordinates were doing better
work and working much harder than in May 1984.
Respondent's representatives during collective-bargain-
ing negotiations included Winton but not Zastrow.
During a collective-bargaining, session with the Union on
8 May 1985, Respondent told the Union that because it
had been a year since the last general review and pay in-
crease to the maintenance department, Respondent felt it
was appropriate to make another general review of that
department. Respondent offered an immediate 2-percent
general wage increase conditional on the waiver of Re-
spondent's sick pay offer on the table, i ° plus an addition-
al immediate 5-percent general wage increase. Respond-
ent stated that this offer would not be prejudicial to any
further negotiation on the subject, and that this was not a
S The April 1984 increases to Hudgens and Owens were aspects of the
May 1984 general increase (see infra). Fuoss and Hook received no in-
crease at any relevant time.
9 Even with the 30-percent wage increase , these scheduling changes
adversely affected the employees' take-home pay. The employees had
been regularly working a 5-day week of 50 hours, for which they had
received the equivalent of 55 hours' straight-time pay; and could also
work Saturdays at time and a half and Sundays at double time The
changes initially. reduced the regular workweek of every employee to 40
hours These changes were made more than 6 months before the instant
charge was filed, and are not attacked in the complaint
10 The record suggests that this offer was an offer to continue sick pay
benefits the employees were at that time receiving
concluding base, but was a base from which the parties
would still continue bargaining. The Union rejected this
proposal and told Respondent not to put it into effect.
Respondent did not do so. As of that date, Respondent
also had on the table a proposal, to which the Union had
not yet made a firm response, regarding Respondent's
right to grant merit increases.
E. Analysis and Conclusions
1. The discriminatory no-talking rule
An employer may, of course, lawfully forbid employ-
ees to talk about a union during periods when the em-
ployees are supposed to be actively working, if that pro-
hibition also extends to all other subjects not associated
or connected with their work tasks. However, an em-
ployer violates Section 8(a)(1) when, as here, employees
are forbidden to discuss unionization but are free to dis-
cuss other subjects unrelated to work, particularly when
(as here) the prohibition was announced in specific re-
sponse to the employees' activities in regard to the union
organizational campaign. Olympic Medical Corp., 236
NLRB 1117, 1122 (1978), enfd. 608 F.2d 762 (9th Cir.
1979); Larid Printing, 264 NLRB 369, 374, 376 (1982).
Accordingly, Respondent violated Section 8(a)(1) of
the Act by reason of Supervisor Zastrow's admitted
action in promulgating, maintaining, and enforcing a rule
forbidding employees to discuss unionization when they
were expected to be actively working but such discus-
sion would not have interfered with work, while permit-
ting employees to discuss most other subjects during
such periods. Zastrow's testimony that he forbade discus-
sions about unions (and also religion and politics) be-
cause he believed that such discussions would lead to "a
fight," does not constitute a defense to the ban on union
discussions; for Respondent failed to offer any evidence
whatever that such union discussions threatened "a
fight." See NLRB v. Varo, 425 F.2d 293, 297 (5th Cir.
1970); NLRB v. Honeywell, Inc., 722 F.2d 405, 406-407
(8th Cir. 1983); NLRB v. Plant City Steel Corp., 331 F.2d
511, 514 (5th Cir. 1964).
2. The threats and promises
In addition, I find that Respondent violated Section
8(a)(1) of the Act when Zastrow told employee Napole-
on in October or November 1984 that with a union con-
tract Zastrow would be able to write him up for three
reasons and that Zastrow would then fire him, "if this is
the way you want it, then this is the way it will be";
when Zastrow told Napoleon in February 1985 that he
would lose his job if he continued to talk about the
Union; when Zastrow told Napoleon about March 1985
that when the Union was voted out on 20 June 1985 (1
year after the election in which a majority of the em-
ployees had voted for the Union), all the maintenance
department employees could get a raise on 21 June;
when Zastrow told employee Sandberg on 7 March 1985
that if he dropped the Union, things would go back the
way they were and "we wouldn't have any trouble"; and
when, during that same conversation, Zastrow said that
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he could not get any money until 21 June, but on 21
June he could.
3. The allegedly unlawful discontinuance of wage
reviews and increase
Respondent 's business records and credible parts of
Zastrow's testimony show that before 7 May 1984 Re-
spondent followed a practice of giving maintenance em-
ployees reviews and merit increases at irregular or (in
some cases) regular intervals . As of that date, Respond-
ent gave all the maintenance employees a 30-percent
wage increase in connection with a change in work
schedules which substantially diminished employees' op-
portunity to receive overtime pay. Senior Vice President
Winton testified that , at the same time Respondent decid-
ed to make these adjustments in wages and hours, Re-
spondent decided to make the 7 May 1984 date "the last
review date [of all the maintenance employees] for pur-
poses of future reviews," and to give wage increases on
7 May 1985.
At the outset of the hearing, Respondent 's counsel
stated that the policy thus described by Winton which,
according to Respondent , was decided on or before Re-
spondent found out about the union movement , was re-
garded by management as a substitute for the previous
practice , which (Zastrow testified) had led to merit in-
creases only. However , Winton did not testify that such
displacement was intended ; indeed, he testified that at
the time he proposed a general wage increase to the
Union , on the ground that it had been a year since that
last general wage increase , Respondent also had on the
table a proposal regarding management 's right to grant
merit increases . Moreover , the testimony of Zastrow
(who participated in the decision to effect the May 1984
general wage increase and to make 9 May 1985 a new
basis of anniversary reviews) is inconsistent with any
belief by him that these decisions precluded merit wage
increases until May 1985 . Rather, he testified that the
only reason for his failure to give merit increases after
the Union 's June 1984 certification was the fact that Re-
spondent ' was having negotiations with the Union, and
that if the Union had not come into the shop at all, he
would have given his crew or some of them merit in-
creases between June 1984 and the June 1985 hearing.
Moreover , in March 1985, Zastrow told employees that
they could get a raise on (but not before) 21 June 1985 (1
year after the Union's election victory) when the Union
was voted out. Furthermore, Zastrow's conduct and
statements prior to March 1985 and beginning before the
June 1984 election show that he strongly opposed the
Union and was trying to lead employees to believe that
they would be better off without it. In view of the fore-
going evidence about Respondent 's antiunion purpose in
failing to consider any employees for merit wage in-
creases, particularly Zastrow's admission that he would
have given such increases if the Union had not come into
the shop, I find that Respondent violated Section 8(a)(1)
and (3) of the Act by failing to consider employees for
and to give such increases on and after 15 September
1984, 6 months before the filing of the charge. Manage-
ment Training Corp., 261 NLRB 131 (1982); Grant 's
Home Furnishings, 218 NLRB 757, 767-768 (1975).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8 (a)(1) of the Act
by promulgating , maintaining , and enforcing a rule
which forbids employees to discuss unions during peri-
ods when they are expected to be actively working and
when such discussion does not interfere with work, but
which permits employees during such periods to discuss
other subjects not associated or connected with their
work tasks.
4. Respondent has violated Section 8 (a)(1) of the Act
by threatening to discharge or inflict other, unspecified
reprisals on employees for union activity, and by promis-
ing employees that they would or could obtain wage in-
creases once they were no longer represented by the
Union.
5. Respondent has violated Section 8(a)(1) and (3) of
the Act on and after 15 September 1984 by failing to
consider employees for and to give them merit increases
because such employees were represented by the Union.
6. The unfair labor practices set forth in Conclusions
of Law 3 through 5 affect commerce within the meaning
of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that Respond-
ent be required to cease and desist from any like or relat-
ed conduct. Affirmatively, Respondent will be required
to rescind its unlawful rule regarding discussions about
unions. Also , Respondent will be required to put into
effect for its maintenance employees such merit increases
as they would have been given from 15 September 1984,
absent discrimination , and to make them whole for any
loss of pay they might have suffered by reason of the
discrimination against them . Management Training, supra,
261 NLRB at 136; Grant's Home Furnishings, supra, 218
NLRB at 768-769. Backpay shall include interest as pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).11
In addition , Respondent will be required to post appro-
priate notices.
[Recommended Order omitted from publication.]
11 See generally Isis Plumbing , 138 NLRB 716 (1962)