Angels Home Center-San Bernardino

National Labor Relations Board - Board Decisions

Sep 17, 1971

193 N.L.R.B. 217 (N.L.R.B. 1971)

ANGELS HOME IMPROVEMENT CENTER 217
Angels Home Improvement Center, Inc. d/b/a Angels
Home Center-San Bernardino and Lionel Richman.
Case 31-CA-2112
September 17, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On June 16, 1971, Trial Examiner George Christen-
sen issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof. The General Counsel filed limited exceptions
to the Trial Examiner's Decision together with a brief
in answer to the Respondent's exceptions and in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations2 of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Angels Home
Improvement Center, Inc. d/b/a/ Angels Home
Center-San Bernardino, San Bernardino, California,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order, as so modified.
1. Delete paragraph "1" of the Trial Examiner's
recommended Order and substitute the following in
lieu thereof:
"1. Cease and desist from:
"(a) Announcing and granting wage increases to
dissuade its employees from supporting the Teamsters
and/or the Retail Clerks or any other labor organiza-
tion.
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights of self-organization, to form, join, or assist
the Teamsters and/or Retail Clerks, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from engaging in any or all such
activities."
2. Substitute the attached notice for the Trial
Examiner's notice.
i In adopting the Trial Examiner' s factual findings , we do not rely on
Behlke's affidavit which, having been used only to refresh Behlke's
recollection at the hearing, was not admitted into evidence. See TXD fns 8
and 14
2 Since we find ment in the General Counsel's exception to the Trial
Examiner's failure, apparently through inadvertence, to recommend the full
appropriate remedial order we shall modify his recommended Order
accordingly
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employ-
ees the right:
To organize into a union
To form, join , vote for , or help unions
To bargain as a group through a union
To act together for collective bargaining
or other mutual aid or protection
To refuse or refrain from any or all of
these.
WE WILL NOT announce or grant wage increases
at a time or in a manner so as to discourage our
employees from joining, assisting , voting for, or
supporting General Truck Drivers , Warehouse-
men & Helpers Union, Local 467, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America and/or Retail
Clerks Local 1167, Retail Clerks International
Association , AFL-CIO, or any other labor organi-
zation.
WE WILL NOT, in any like or related manner,
interfere with, coerce , or restrain our employees in
the exercise of any of these rights , including the
right to support, join , vote for , or choose Team-
sters Local 467 and/or Retail Clerks Local 1167 or
any other labor organization.
193 NLRB No. 33
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ANGELS HOME
IMPROVEMENT CENTER,
INC. D/B/A ANGELS
HOME CENTER-SAN
BERNARDINO
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, Room 12100, 11000 Wil-
shire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7352.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner: On February 17,
18, and 19, 1971, the Examiner conducted a hearing at San
Bernardino, California, to try issues raised by a complaint
issued on December 9, 1970,1 (based upon a fharge filed by
Lionel Richman 2 on October 15 and an amended charge
filed on December 9) alleging that Angels Home Improve-
ment Center, Inc., d/b/a Angels Home Center-San
Bernardino3 violated Section 8(a)(1) of the National Labor
Relations Act, as amended (hereafter the Act), by granting
wage increases (including a substantial number of retroac-
tive payments) on the eve of an election scheduled by the
Board in order to influence the votes of its employees in
that election.
The parties conceded proper service of the charges, that
at all pertinent times Angels - San Bernardino was an
employer engaged in commerce in a business affecting
commerce as those terms are defined in the Act, that
Teamsters and Retail Clerks were labor organizations as
that term is defined in the Act, and that a substantial
number of the Angels - San Bernardino employees received
wage increases shortly before the election in question,
including many retroactive payments. Angels - San
Bernardino contends, however, that it had lawful business
reasons for effectuating the increase and therefore dia not
violate the Act.
The issue is the Company's motive for granting the
increases.
All parties appeared by counsel and were afforded full
I Add 1970 to all subsequent date references wherein the year is not
stated
2 Richman is counsel for General Truck Drivers, Warehousemen &
Helpers Union Local 467, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, hereafter called
Teamsters The Teamsters and Retail Clerks Local 1167, affiliated with
Retail Clerks International Association, AFL-CIO, hereafter called Retail
Clerks, were joint petitioners in the underlying representation proceeding
opportunity to introduce evidence, examine and cross-
examine witnesses, argue, and file briefs. Briefs were filed
by the General Counsel and Angels - San Bernardino.
Based upon his review of the entire record,4 observation
of the witnesses, perusal of the briefs, and research, the
Examiner enters the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The commerce facts and the qualification at all pertinent
times of Angels - San Bernardino as an employer engaged
in commerce in a business affecting commerce and the
Teamsters and the Retail Clerks as labor organizations
within the meaning of Section 2(2), (5), (6) and (7) of the
Act are conceded by the parties and the Examiner so finds
and concludes.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Company Structure and Operations
During the time pertinent to this proceeding, Angels -
San Bernardino consisted of a retail store from which
building materials and home improvement items were sold
to the general public. The store was one of a chain of four
operating under the Angels name. The other three stores
were located at El Monte, Pomona, and Norwalk,
California; all four were serviced from a warehouse located
at Montebello, California; the general headquarters and
offices of the chain were located above the El Monte store.
Prior to 1968, the chain was owned and operated by the
Sidney Kline family. It was sold by the Kline family to
Daylin, Inc., in August 1968. Daylin continued operations
unchanged as the Angels Division of Daylin, with Kline
continuing to direct overall operations. Lester Morris
continued to act as general manager and William Napier
continued to act as the manager of the Angels - San
Bernardino store. In June 1969 Edward Behlke became
Daylin's director of personnel and industrial relations.5 As
of January, only the warehouse employees were union-
represented.
B. Attempted Organization of the Angels - San
Bernardino Employees
In early February, the Teamsters began to organize
Angels - San Bernardino's employees. On February 19 the
Teamsters filed a petition with Region 21 seeking
certification as the exclusive collective-bargaining repre-
sentative of a unit of employees of Angels - San
Bernardino.6
A hearing on the petition was conducted by the Region
on May 8, 14, and 21. At that hearing, the Retail Clerks
were added as joint petitioners. On September 4, the
involving the parties
3 Hereafter called Angels - San Bernardino
4 On May 24, 1971, Angels - San Bernardino moved for eight transcript
corrections No opposition was expressed to the motion It is granted
5 The Examiner finds that Kline , Morris, Napier, and Behlke were
supervisors and agents of Angels - San Bernardino acting on its behalf at
all times pertinent
6 Case 31-RC-1360
ANGELS HOME IMPROVEMENT CENTER
Regional Director issued his order finding appropriate for
purposes of collective bargaining a unit consisting of:
All full-time and regular part-time employees of the
Employer's store located at San Bernardino, California,
engaged in the handling and sale of goods, including
store salesmen , lumber salesmen, cashiers, stockers,
loaders, forklift operators, warehousemen, truckdrivers,
maintenance carpenters and janitors; but excluding all
office clerical employees, guards and supervisors as
defined in the Act, and all other employees.
The order further directed that all parties be furnished
with a list of eligible voters within 7 days thereafter. The list
furnished contained 59 names.
Angels - San Bernardino's appeal of this order to the
Board was denied and, on October 6, the Region issued an
order directing an election within the specified unit of
employees for October 16.
In view of the October 15 charge filed in the instant case,
the October 16 ballots were impounded. Following the
issuance of the December 9 complaint in this case, the
election was declared null and void (by order of the Region
issued January 18, 1971).
C. Angels - San Bernardino's Response to the
Organizational Campaign
Shortly after receiving a copy of the Teamsters February
19 petition (in late February-early March), Behlke
conducted a series of interviews among both the managerial
and unit employees at Angels - San Bernardino for the
purpose, inter aka, of learning what had caused the
employees to seek Teamsters representation. He learned
that there was considerable dissatisfaction among the
employees over their wages and particularly failure to give
wage increases at the time intervals employees expected to
receive them.? Behlke informed Napier of this source of
dissatisfaction.8 No action was taken to correct this source
of dissatisfaction at that time.9
In March, Morris addressed a communication 10 to all the
unit employees at Angels - San Bernardino stating, inter
aka, that:
We are, of course, concerned as to what circumstances
may have caused a number of our employees to show an
interest in such a labor organization, as our policy has
always been to avail ourselves to our employees, to
listen to their problems and to discuss subjects of
interest with them at any time.
We do not believe the Teamsters Union would serve
your best interest. We hope that you share with us this
belief.
Angels - San Bernardino distributed a booklet to all employees in May
of 1969 (and thereafter to new hires ) stating.
[T ]here is a thirty (30) day trial period for all new employees At
the end of this probationary period, your progress will be reviewed by
your supervisors who will recommend either permanent employment
with a merit raise or release
Subsequent reviews do not guarantee wage increases , but increases will
be granted within the wage rate range when merited.
Your demonstrated ability in job performance will enable you to
advance very rapidly
A second review will be made after the completion of five hundred
and twenty (520) hours of continuous employment or ninety (90) days,
whichever is greater
Regularly scheduled reviews thereafter will be made at intervals of six
219
Following his receipt of the Region's September 4 order
directing an October 16 election among the unit employees
at Angels - San Bernardino, Behlke again scheduled a series
of meetings with unit employees, meeting them in small
groups of four or five. These meetings commenced about
the middle of September and continued until shortly before
the election. Behlke was accompanied by George Reyes,ii
recently appointed as director of personnel and industrial
relations for the Angels division.
Either Behlke or Reyes in the course of these meetings
described the array of benefits and practices affecting the
unit employees; informed the employees that the Kline
family no longer determined policy; solicited employee
gripes or grievances and assured those employees who
voiced them that they would be given careful considera-
tion; expressed opposition to representation of the
employees by the Teamsters and the Retail Clerks;
requested that the employees give Daylin opportunity to
show what it could and would do, particularly in the area of
wage increases and a dental plan (numerous complaints
about the former and inquiries regarding the latter were
voiced in response to the solicitation of gripes or
grievances).12
As a result of the earlier (September) discussions with
Angels - San Bernardino unit employees, Behlke learned
that Angels - San Bernardino's wage policy continued to
be 13 the major source of employee dissatisfaction. Accord-
ingly, he directed Napier to check records of the unit
employees and recommend wage increase' for those who
appeared entitled to them. Napier complied, recommend-
ing increases for 11 unit employees. Distrustful of Napier's
judgment, Behlke (accompanied by an assistant, Don
Haskell) went to the store and conducted his own
investigation of employee records. He and Haskell decided
that the store records were inadequate (they only went back
for a limited period), continued their investigation at the
chain's headquarters in El Monte, and finally determined
that a total of 35 unit employees should be granted wage
increases.
On September 24, Behlke and Haskell met with Kline,
Morris, Reyes, and George Lehman (Lehman was selected
to replace Kline at the conclusion of the latter's manage-
ment contract). Behlke persuaded the managerial officers
to authorize wage increases for the 35 employees in
question, including retroactive payments to 19 of the 35.
They were also persuaded to take the authority and
responsibility for initiating requests for wage increases
months or one thousand and forty (1040) hours of continuous
employment, whichever is greater
8 The findings in this paragraph are based upon Behlke's testimony and
affidavit.
9 As borne out by the personnel records of the unit employees at Angels
San Bernardino , which shall be discussed in more detail hereafter.
10 Behlke testified that he aided in the preparation of this document
i i The Examiner finds that Reyes was a supervisor and agent of Angels
San Bernardino acting on its behalf at all pertinent times
12 The findings in this paragraph are based upon the mutually
corroborative testimony of Behike, Napier, and unit employees Folsom,
Staddan, Johnson, O 'Brien , Sparks, Dixon, and Pagala
13 See the earlier findings regarding Behlke's late February-early March
employee interviews
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
away from Napier (and other unit managers) and place it
within the payroll department at the chain's headquarters.14
On the same date (September 24), Morris sent a letter to all
the Angels - San Bernardino employees advising them that
on September 4 the region had issued a decision directing
an election at the San Bernardino store and that, while
Angels - San Bernardino had appealed this decision, the
election would probably be held in mid-October.
The proposed increases were promptly processed. The
first increases (including retroactive payments) appeared in
the October 2 paychecks of the Angels - San Bernardino
unit employees and the balance appeared in their October
16 paychecks.15 Most, if not all, employees who received
increases were informed they were coming by Napier prior
to their receipt.16
At the late September employee meetings conducted by
Behlke , he or Reyes announced the September 24
managerial decision to change the system for implementing
wage increases and to grant increases to 35 of the unit
employees, after employee Behlke heard again the same
employee complaints over nonreceipt of anticipated wage
increases he had heard in late February-March. In the
October 5, 6, and 8 employee meetings held subsequent to
such (September 28-29) announcement and the first
payments thereof (on October 2), no further complaints
over wage increases were voiced by the employees in
attendance.
In December, increases were granted to employees at the
other three stores in classification similar to those included
within the unit at Angels - San Bernardino.17
In January 1971, a revised booklet was distributed to the
employees at all four stores, setting out rate ranges for each
job classification, an automatic wage progression system
within each rate range based on length of service, and an
announced annual review and updating of each rate range
with corresponding adjustments each January 1 thereafter.
D. Contentions of the Parties
1. The General Counsel and the Unions
The General Counsel and the Unions contend that the
granting of wage increases to approximately 59 percent of
the employees within the unit (including retroactive
payments covering as much as 5 months' retroactivity to
approximately 32 percent of the unit employees), timed for
payment shortly before the election, was designed to, and
did interfere with, the employees' exercise of a free choice
concerning whether or not they desired to be represented
by the petitioning unions upon casting their ballots.
14 The findings in this and the preceding paragraph are based upon
Behlke 's testimony and affidavit
15 Established by personnel records.
16 Napier so testified
17 To 24 employees at Norwalk, 21 employees at Pomona, and 21
employees at El Monte
is A memorandum addressed to unit managers dated November 18,
1967, was received into evidence expressing this policy
is Behlke so testified
20 Behlke testified that the hourly service figures were added to cover
part- time employees ; Napier testified, however , that he made his reviews
on the calendar dates Napier also contradicted Behlke on the automatic
2. Angels - San Bernardino
Angels - San Bernardino contended that prior to the
publication of the May 1969 booklet ( see fn . 7), the store
granted an automatic 10-cent wage increase after 30 days,
90 days, 1 year, and each anniversary date of employment
for all employees retained in service over the requisite time
periods18 with the time intervals between each increase
running anew from the date of each promotion or change of
classification;19 that while the wording of the May 1969
booklet indicated that the automatic feature was preserved
only with regard to the first (30-day) increase, in actual
practice the automatic feature was retained at all the review
dates recited in the booklet, i.e., after 30 days, after 90 days
or 520 hours, and after each 6 months or 1,040 hours20 of
employment thereafter; that all the store did in October
was to grant to the unit employees the wage increases which
were due them under the preexisting wage policy which had
been temporarily disrupted due to Napier's illness and the
absence of his clerical assistant during the earlier part of
1970; 21 and that the store would have been in violation of
the Act if it had not effected the wage increases in question.
As to the retroactive payments, it was contended that they
were granted in order to conform to the increases with the
dates they should have been "automatically" granted.
3. The rejoinder of the General Counsel and the
Unions
The General Counsel and the Unions replied with an
analysis of the wage increases granted to the Angels - San
Bernardino unit employees prior to the increases in
question and retroactive payments made, which, they
contend, impeaches and discredits the foregoing conten-
tions of Angels - San Bernardino.
E. Wage Increases and Retroactive Payments prior
to September 4
The personnel records of 57 of the 59 Angels - San
Bernardino employees within the unit were introduced into
evidence.22 The record of one employee within the unit was
incomplete.23 Remaining records fail to support Angels -
San Bernardino's contentions , either for the period of
Napier's disability and his assistant 's neglect, or for periods
prior thereto as illustrated by the following randomly
chosen examples:
1. E. Anderson was hired as a salesman at $2.65 an hour
and continued in that classification through September 4.
His starting rate was $2.65. If the automatic wage
adjustment policy Angels - San Bernardino contended was
practiced during Anderson's 1969-1970 employment was
nature of the 6-month increases , stating that while he conducted 6-month
reviews, he requested approval for increases only at the 30-day, 90-day, and
anniversary dates of employment.
21 Napier testified he was absent from work or working only parttime
between March and the end of May due to a heart attack ; that Carolyn
Pascher , his clerical assistant charged with the duty of submitting requests
to the central office for wage increases, was on assignment during much of
this period to other stores to train cashiers ; and that Billie Humphreys,
Pascher's fill-in, neglected this task and gave priority to other of her
clerical duties.
22 The records of A Cervantes and V. Pagaca were not furnished.
23 The record of R Montecito was incomplete.
ANGELS HOME IMPROVEMENT CENTER 221
followed in his case , he should have received an increase of
10 cents on August 7, 1969, to $2.75 an hour; another
increase of 10 cents on October 7, 1969, to $2.85 an hour; a
further increase of 10 cents on January 7, 1970, to $2.95 an
hour; and, finally, an increase of 10 cents on July 7, 1970, to
$3.05 an hour. In actuality, he received a nonretroactive
increase of 10 cents per hour on December 22, 1969, to
$2.75 an hour; a second nonretroactive increase of 10 cents
per hour on June 8, 1970, to $2.85 per hour, and no further
increases through the balance of 1970.
2. D. Duda was hired as a stocker on March 7, 1970 at
$1.75 per hour and continued in that classification through
September 4. Were the alleged policy followed in his case,
he should have received a 10-cent increase on April 7 to
$1.85 and a second 10-cent increase on June 7 to $1.95. He
actually received a single nonretroactive increase during the
period in question (March 7 - September 4) of 20 cents to
$1.95 on June 8.
3. G. Hamon was hired as a loader on September 28,
1968 at $2.00 an hour. On November 1, 1968, his
classification was changed to yard stacker. His records
show no change in classification following that date
through September 4. Were the alleged policy followed in
his case, he should have received a 10-cent increase to $2.10
on October 28, 1968; assuming the starting rate for his new
classification was $2.10, he should have received a 10-cent
increase to $2.20 on December 1, 1968; 10-cent-an-hour
increase to $2.30 on February 1, 1969; 10-cent-an-hour
increase to $2.40 on May 1, 1969; 10-cent-an-hour increase
on November 1, 1969, to $2.50; and 10-cent-an-hour
increase on May 1, 1970, to $2.60. He received a 10-cent
increase on November 1, 1968, to $2.10; a 35-cent increase
on January 6, 1969, to $2.45; a 20-cent increase to $2.65 on
September 15, 1969 (after an earlier request of July 21,
1969, for approval of a 20-cent increase either was denied
or not acted upon); and a 10-cent increase to $2.75 on
November 10, 1969. None of the increases were retroactive.
No increases were granted to Hamon between November
10, 1969, and September 4, 1970.
4. S. Napier was hired as a loader on January 26, 1970,
at $1.75 per hour and continued in that classification
through September 4. Under the alleged policy, he should
have received a 10-cent increase on February 26 to $1.85; a
second 10-cent increase on April 26 to $1.95, and a third 10-
cent increase on July 26 to $2.05. He received one
nonretroactive increase between January 26 and September
4; a 10-cent increase on August 17 to $1.85.
5. E. Ramos was hired as a loader on March 28, 1970, at
$1.75 per hour and continued in that classification through
September 4. Under the alleged policy, he should have
received a 10-cent increase on April 28 to $1.85 and a
second 10-cent increase on June 28 to $1.95. By September
4, he had received one nonretroactive increase of 10-cents
to $1.85 on August 3.
6. J. Walker was hired as a checker at $1.90 per hour on
June 6, 1969, and continued in that classification until
September 7, 1969, when she quit. She resumed employ-
ment as a checker on November 11, 1969, and continued in
that classification through September 4. Following the
alleged policy, she should have received a 10-cent increase
on July 6, 1969, to $2.00; a second 10-cent increase on
September 6, 1969, to $2.10; a third 10-cent increase on
February 11, 1970, to $2.20 (she was off work due to her
quit from the day after her 90-day increase was due to
November 11, 1969, so her 6-month service date is
February 11, 1970); and a fourth increase of 10-cents on
August 11, 1970, to $2.30. She received a 10-cent increase
on August 4, 1969, to $2.00; a 10-cent increase on August
29, 1969, to $2.10; a 10-cent increase on March 2, 1970, to
$2.20, and a 10-cent increase on June 8, 1970, to $2.30.
The record further discloses that over a period extending
back almost 2 years from September 4, 1970, only 7
retroactive wage increases were granted, while 19 retroac-
tive increases were granted shortly before the election.
Napier testified that many of the increases reflect his
response to employee requests for raises; the records in
most cases label the increases as "ment" increases, with a
few stating they were "time" increases.
On the basis of the foregoing, as well as a perusal of the
records of the balance of the employees, the Examiner finds
and concludes that Angels - San Bernardino followed the
wage policy set out in its May 1969 booklet both prior to
the publication of that booklet and thereafter to September
4, 1970, i.e., of granting increases whenever either an
employee requested an increase (Napier testified this was
the "usual" practice), or the unit manager got around to a
performance review and, at his discretion, deemed them
warranted.
F. Discussion and Ultimate Findings
On receiving notice in February of the Teamster petition,
Angels - San Bernardino launched an investigation to
ascertain the cause or causes for its employees' interest in
union representation ; the investigation disclosed that the
major source of dissatisfaction was the belated receipt or
nonreceipt of wage increases at times the employees
anticipated or hoped to receive them (on alleged perform-
ance review after completion of 30 days, 90 days, and each
6 months of employment-as set out in the May 1969
employee handbook); shortly after the Region's September
4 rejection of its position that the only appropriate unit was
one consisting of its entire chain of four stores and direction
of an election among the Angels - San Bernardino unit
employees, Angels - San Bernardino confirmed that its
wage policy and practice was still the employees' major
reason for seeking union representation; it then (September
24) advised the employees an election could probably be
expected in nud-October and on the same date ordered
wage increases for approximately 59 percent of the unit
employees, including lump-sum retroactive payments to
approximately 32 percent of its employees, following this
up with advice to most, if not all, the unit employees just
prior to the election that they were going to receive wage
increases, followed by payment of same, coupled with an
announcement that periodic wage increases would be paid
in the future; following the election, it initiated similar wage
adjustments at the other three stores and initiated a new
policy of announcing the rate wages for each job, an
automatic progression system within each rate range, and a
declaration that the rate ranges would be adjusted annually
in the future.
While the Act certainly recognizes the right of an
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer to preserve his practice of dealing with his
employees on an individual and discretionary basis with
regard to their wages, rates of pay, hours, and working
conditions in the absence of contractual restrictions, to
express his opposition to any union or unions seeking to
represent his employees collectively with regard to those
matters, and to seek to persuade his employees to vote for
continued individual relations and against union represent-
ation, both the Board and the courts generally have held
that grants of wage increases, including a substantial
number of lump-sum retroactive payments to a large
number of employees shortly before their vote in an
election scheduled for the purpose of expressing their
choice in the matter, interferes with, restrains, and coerces
those employees in the exercise of their right to organize,
form, join, or assist labor organizations and to bargain
collectively through representatives of their own choosing,
and violates Section 8(a)(1) of the Act.24
The Examiner therefore finds and concludes that Angels
- San Bernardino, by announcing and granting wage
increases to most of the unit employees, including
substantial lump-sum retroactive payments to a large
number of them, shortly before the election scheduled in
Case 31-RC-1360, interfered with, restrained, and coerced
its employees in the exercise of their right to organize, join'
form, assist , and bargain collectively through a collective-
bargaining representative and thereby violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Angels - San Bernardino is an employer engaged in
commerce in a business affecting commerce, and the
Teamsters and the Retail Clerks are labor organizations as
those terms are defined in Section 2(2), (5), (6) and (7) of
the Act.
2. By announcing and granting wage increases to a
large number of the unit employees, including many lump-
sum retroactive payments, shortly before the date the
Region was scheduled to conduct an election among those
employees to ascertain their desires concerning representa-
24 N L R B v. Exchange Paris Co, 375 US 405, Monroe, 190 NLRB
No 100, etc
25 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and Order,
and all objections thereto shall be deemed waived for all purposes
26 In the event that the Board's Order is enforced by a Judgment of a
tion for collective-bargaining purposes, Angels - San
Bernardino interfered with, coerced, and restrained the
employees in question in the exercise of their rights under
Section 7 of the Act and thereby violated Section 8(a)(1) of
the Act.
3. The unfair labor practice just specified affects
commerce as defined in the Act.
THE REMEDY
Having found that Angels - San Bernardino engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, the Examiner shall recommend that it cease and desist
therefrom and take affirmative action designed to effectu-
ate the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, the Examiner issues the following
recommended: 25
ORDER
Angels - San Bernardino, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from announcing and granting wage
increases to dissuade its employees from supporting the
Teamsters and/or the Retail Clerks.
2. Post on its premises at places where notices to
employees are customarily posted copies of the attached
notice marked "Appendix".26 Copies of such notice on
forms furnished by the Regional Director for Region 31
shall be signed by an authorized representative of Angels -
San Bernardino and posted immediately upon receipt
thereof and maintained for a period of 60 days thereafter.
Reasonable steps shall be taken to insure that the notices
are not defaced, altered, or covered by other material; and
3. Notify the Regional Director for Region 31 in
writing, within 20 days from the date of this Decision, what
steps Angels - San Bernardino has taken to comply
herewith.27
United States Court of Appeals, the words in the notice reading, "Posted
by Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
27 In the event that the Recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 31. in writing , within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith "