Chopp & Co., Inc.

National Labor Relations Board - Board DecisionsJul 31, 1989

295 N.L.R.B. 1058 (N.L.R.B. 1989)

1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chopp & Company, Inc. and Washington, D.C. Dis- trict Council , United Brotherhood of Carpenters & Joiners of America , AFL-CIO. Cases 5-CA- 19000, 5-CA-19068, 5-CA-19111, 5-CA- 19174, and 5-RC-12933 July 31, 1989 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On October 21, 1988 , Administrative Law Judge Walter H. Maloney issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-excep- tions and a memorandum in support of cross-excep- tions and in response to the Respondent 's excep- tions. 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, brief, and memo- randum and has decided to affirm the judge's rul- ings, findings,' and conclusions2 as modified and to adopt the recommended Order as modified3 and set out in full below. i 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. We note that the judge at one point in his decision erroneously stated that Supervisor McDermott , rather than Supervisor Farrington , gave em- ployee Glascoe permission to be absent from work on June 24, 1987 This inadvertent error does not affect the results of our decision. Additionally , the Respondent argues in its exceptions that , contrary to the judge 's finding , other employees who damaged equipment were not treated disparately from alleged discriminatee Wilson . The Respondent contends that these employees , unlike Wilson , did not deliberately abuse company property and therefore were not terminated after they acciden- tally damaged company equipment . We emphasize, however, that in Wil- son's case, the Respondent made no effort to determine whether the damage was caused deliberately or by accident and there is no evidence that the Respondent had any basis for concluding that it was deliberate. In these circumstances, we conclude that the Respondent 's argument is an afterthought intended to obscure its unlawful discharge of Wilson. 2 The judge concluded that the Respondent 's statement to former em- ployee Glascoe that the Company would discontinue its retirement pro- gram if the Union came into the plant constituted a violation of Sec. 8(a)(1) of the Act. The judge also found that this statement constituted objectionable conduct since "in all likelihood" it occurred after July 6, 1987, and therefore was within the critical period Although we agree with the judge that the statement was violative of Sec . 8(a)(1), we cannot find that it was objectionable conduct because there is no evidence that the statement was in fact made on or after July 6 , the date on which the Union filed its representation petition . Nevertheless , we agree with the judge that the unfair labor practices and objectionable conduct found are sufficient to affect the results of the election and, accordingly , adopt his recommendation to set aside the election and direct a second election. 9 The General Counsel has excepted to the judge 's failure to include in the Conclusions of Law , recommended Order, and notice his finding that the Respondent violated the Act by its unlawful surveillance of union ac- We agree with the General Counsel that the judge erred in failing to find that the Respondent violated Section 8(a)(3) and (1) of the Act by un- lawfully placing memos in employee Smith's per- sonnel file to conceal his unlawful discharge. The facts are fully set out in the judge 's decision. On the basis of his factual findings , the judge conclud- ed that "these items were simply part of a paper trail which Respondent was laying in order to ter- minate Smith ." Because we find that Smith was discriminatorily discharged , we conclude that there can be no other reason for the Respondent's con- duct in placing the memos in Smith 's personnel file than to attempt to conceal the unlawful nature of his discharge . We find that the circumstances of the present case are similar to those in Airport Dis- tributors, 280 NLRB 144 ( 1986), in which the Board found that a written warning to an employ- ee was unlawful and that "a necessary inference .. . of unlawful discriminatory motivation" arose from the respondent's animosity toward the union, its hostility toward the discriminatee (the union steward), the timing of the reprimand , and the lack of justification for it . In the present case, we note that the Respondent was openly hostile to the Union , that it knew of Smith's activities on behalf of the Union and of his membership on the inplant organizing committee , that it placed the memos in Smith 's file shortly after the organizing campaign began in earnest , and that the Respondent failed to show that the memos were justified . In this regard, we emphasize that the Respondent placed a memo in Smith 's file for leaving work early on July 6, that the Respondent had given Smith permission to leave early , and that the contents of the memo, as found by the judge, did not accurately reflect the facts . We further note that the four memos that the Respondent placed in Smith 's file over 1 week dealt primarily with attendance and that Smith had received no similar memos in his prior 3 years with the Respondent . Most significantly, as the judge found , these memos were not without impact be- cause they served as the purported basis for tivities We find merit in this exception and shall amend the recommend- ed Order and notice accordingly We note that the judge found that the Respondent violated Sec. 8(a)(1) through Vice President Cannon' s "assault" on employee Ladd by poking Ladd in the chest several times and telling him that he had to choose "between two evils," the Company or the Union The complaint, howev- er, alleged and the record supports a finding that Cannon's conduct on this occasion constituted a "threat" in violation of Sec. 8(a)(1) We shall amend the recommended Order and notice to conform thereto. Contrary to the judge, we conclude that in the circumstances of this case a narrow cease-and-desist order is appropriate. In this regard, we find that the record does not establish that the Respondent has "a pro- clivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fun- damental statutory rights." Hickman Foods, 242 NLRB 1357 (1979). We shall modify the judge's recommended Order accordingly. 295 NLRB No. 120 CHOPP & CO. 1059 Smith 's termination that was discriminatory and unlawful . Consequently , we modify the recom- mended Order and notice to include the additional violation alleged by the General Counsel. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Chopp & Company, Inc., Brandywine and Hughesville , Maryland , its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Engaging in surveillance of the union activity of employees. (b) Coercively interrogating employees concern- ing their union sympathies and union activities. (c) Threatening employees because they have en- gaged in union activities. (d) Threatening employees with loss of benefits if they select a union as their bargaining representa- tive. (e) Soliciting grievances from employees in order to adjust them. (f) Promising benefits to employees to dissuade them from voting for a union. (g) Granting employees wage increases to dis- suade them from voting for a union; provided that nothing here shall be construed to require the Re- spondent to withdraw or eliminate any wage in- creases previously granted. (h) Instituting a grievance procedure for the pur- pose of dissuading employees from voting for the Union ; provided that nothing here shall be con- strued to require the Respondent to discontinue or revise any grievance procedure previously institut- ed. (i) Disciplining employees by placing memos in their personnel files because of their membership in or activities on behalf of Washington , D.C. District Council, United Brotherhood of Carpenters & Join- ers of America , AFL-CIO, or any other labor or- ganization. (j) Discouraging membership in or activities on behalf of Washington , D.C. District Council, United Brotherhood of Carpenters & Joiners of America , AFL-CIO, or any other labor organiza- tion, by discharging employees or otherwise dis- criminating against them in their hire or tenure. (k) 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) Offer to Evanston Glascoe, Terrance Smith, and Ernest L . Wilson Jr . immediate and full rein- statement to their former jobs or , if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed , and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and the disciplinary notices and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at the Respondent's Brandywine and Hughesville , Maryland plants copies of the at- tached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Direc- tor for Region 5, after being signed by the Re- spondent'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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the election con- ducted in Case 5-RC-12933 is set aside. IT IS FURTHER ORDERED that Case 5-RC-12933 is severed and remanded to the Regional Director for Region 5 for the purpose of conducting a second election at such time as the Regional Direc- tor deems appropriate. [Direction of Second Election omitted from pub- lication.] 4 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." 1060 DECISIONS 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. WE WILL NOT engage in surveillance of the union activities of employees. WE WILL NOT coercively interrogate employees concerning their union activities. WE WILL NOT threaten employees for engaging in union activities. WE WILL NOT threaten employees with the loss of benefits if they select a union as their bargaining agent. WE WILL NOT solicit grievances from employees in order to adjust them. WE WILL NOT promise benefits to employees in order to dissuade them from voting for a union. WE WILL NOT institute a grievance procedure for the purpose of dissuading employees from voting for a union. WE WILL NOT grant wage increases in order to dissuade employees from voting for a union. WE WILL NOT discipline employees by placing reprimands in their personnel files because of their membership in or activities on behalf of Washing- ton, D.C. District Council, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization. WE WILL NOT discourage membership in or ac- tivities on behalf of Washington, D.C. District Council, United Brotherhood of Carpenters & Join- ers of America, AFL-CIO, or any other labor or- ganization , by discharging employees or otherwise discriminating against them in their hire or tenure. 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. WE WILL offer Evanston Glascoe, Terrance Smith, and Ernest L. Wilson Jr. immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge and the disciplinary notices and that the dis- charge will not be used against him in any way. CHOPP & COMPANY, INC. Paula Schaeffer Sawyer, Esq., for the General Counsel. Frank S. Astroth, Esq. and Ann L. Lamdin, Esq., of Balti- more, Maryland , for the Respondent. DECISION STATEMENT OF THE CASE WALTER H. MALONEY, Administrative Law Judge. This case came on for hearing before me at Washington, D.C., on a consolidated unfair labor practice complaint,' issued by the Regional Director for Region 5, which al- leges that Respondent Chopp & Company, Inc.2 violated Section 8(a)(1) and (3) of the Act. More particularly, the consolidated complaint alleges that the Respondent coer- cively interrogated employees concerning their union sympathies and activities; engaged in surveillance of the union activities of employees; physically assaulted an em- ployee because of his union activities; threatened to dis- continue retirement benefits if employees selected the Union as their bargaining representative; solicited griev- ances during a representation campaign with a view toward adjusting them; established a grievance proce- ' The principal docket entries in the complaint cases are as follows: Charge in Case 5-CA-19000 filed here by Washington, D.C. District Council, United Brotherhood of Carpenters & Joiners of America, AFL- CIO (Union), against the Respondent on July 20, 1987, complaint issued by the Regional Director for Region 5 against the Respondent on August 24, 1987, and amended on October 14, 1988 ; complaint issued in Case 5- CA-19068 by the Regional Director for Region 5 , against the Respond- ent on October 23, 1987; Respondent's answer filed on October 27, 1987; charge in Case 5-CA-19111 filed by the Union against the Respondent on September 16, 1987, and amended on October 2, 1987; complaint issued in Case 5-CA-19111 by the Regional Director for Region 5 on November 12, 1987; Respondent 's answer filed on November 18, 1987; Charge in Case 5-CA-19174 filed by the Union against the Respondent on October 16, 1987 ; consolidated complaint issued by the Regional Di- rector for Region 5 on January 29, 1988, Respondent 's answer filed on February 4, 1988, hearing held in Washington , D.C., on July 25 and 26, 1988; briefs filed with me by the General Counsel and the Respondent on or before August 31, 1988. The principal docket entries in the representation case are as follows- Representation petition filed by the Union on July 6, 1987, in Case 5- RC-18926 , seeking an election in a unit composed of all full-time and regular part-time production and maintenance employees , including truck drivers, mechanics, laborers , and related classifications employed by the Respondent at its Brandywine and Hughesville, Maryland plants, with the usual exclusions , Decision and Direction of Election issued by the Regional Director for Region 5, on August 19, 1987, election held on September 24, 1987, which the Union lost by a vote of 45 to 54; timely objections filed by the Union on September 29, 1987; order consolidating representation case with pending complaint issues issued by the Regional Director for Region 5 on May 6, 1988. Y Respondent admits, and I find , that it is a Maryland corporation which operates places of business in Brandywine and Hughesville, Mary- land, where it is engaged in the manufacture and sale of roof and floor trusses and other components used in the construction of buildings During the preceding year, in the course and conduct of its business, Re- spondent purchased at its Hughesville and Brandywine locations directly from points and places outside the State of Maryland goods and mer- chandise valued in excess of $50,000. Accordingly, it is an employer en- gaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec 2(5) of the Act. CHOPP & CO. 1061 dure during a representation campaign in order to dis- suade employees from supporting the Union ; granted an across-the-board wage increase to employees while ob- jections to an election were pending ; and discriminatorily discharged Ernest Wilson , Terrance Smith, and Evans- ton Glascoe . The Respondent denies the commission of independent violations of Section 8(a)(1) of the Act, stat- ing among other things that a wage increase given to employees early in October 1987, following the represen- tation election was dictated by business necessity, and that Wilson , Smith , and Glascoe were terminated for specific stated causes . The objections to the election in- volved in this case are derived from most , but not all, of the unfair labor practices alleged .3 On these contentions the issues were drawn.4 FINDINGS OF FACT 1. THE UNFAIR LABOR PRACTICES AND OBJECTIONABLE CONDUCT ALLEGED The Respondent operates two facilities , one at Brandy- wine, Maryland , in the near suburbs of Washington, D.C., and the other some miles further south at Hughes- ville, Maryland . In addition to selling lumber , it manu- factures and delivers to construction jobsites a variety of trusses and related items used in residential and commer- cial building . The Company is now owned by Joseph Chopp but it is operated on a day-to-day basis by his son-in-law, Michael Cannon . While the election of Sep- tember 24, 1988, was held at both facilities , most of the events involved in this proceeding took place in or near the larger facility at Brandywine. Neither plant has any bargaining history. The Union began its organizing drive early in June 1987, under the supervision of Willie L. Shepperson, a general organizer . The campaign continued throughout the summer months . The Union conducted weekly meet- ings at a church located on Route 381 several miles southeast of the plant . These meetings usually took place on Tuesday afternoons after work. The Union regularly leafletted the plants and distributed cards and literature during nonworking hours within the plants. On June 3, 1987, the Respondent conducted an annual employee meeting at which it discussed the progress of its employee stock ownership plan (ESOP). At this meet- ing, Evanston Glascoe, a discriminatee in this case and historically a voluble speaker at various employee meet- ings, complained about the profit-sharing program and urged the Company to put more money into take-home pay rather than into a retirement program . Two weeks later, on June 17, another large employee meeting was held at which Chopp spoke . Chopp complained about the union organizing drive which was just taking shape and reminded employees of the many benefits they re- ceived by working for the Respondent . During this meeting, Glascoe again spoke up and told Chopp, "You wouldn 't have the Union here . . . if you paid people more." The Union's first regular organizing meeting took place the same afternoon . Two days later , Shepperson wrote Joe Chopp a letter inviting him to attend the next union meeting to be held on June 27 at the Carpenters' union hall in Forestville . The invitation was directed to Chopp personally and urged him to attend so that "em- ployees of (Chopp) may have the opportunity to hear both sides of the issue at the same time ." It included a challenge that "your employees will be there and I will be there . Will you?" On June 24, Chopp replied in an equally antagonistic vein , declining the invitation , accus- ing Shepperson of making false and inflammatory state- ments to employees about the Company, and suggesting that Shepperson 's invitation was "merely one more cheap shot at the Company." Glascoe worked the day shift in the truss department and operated a Depaw saw. He had been with the Re- spondent for about 16 years and was one of its most ex- perienced employees . When he arrived at work on June 25, his foreman, Phil Farrington , told Glascoe that he would like to speak with him later on in the morning. At that time Farrington mentioned that there had been some talk about firing Glascoe because he had not shown up for work the previous day. Glascoe reminded Farrington that he had told Farrington on Tuesday evening that he would not be going to work on Wednesday.5 Not long thereafter , Craig DeWees, manager of the component di- vision, and Ron Rhodes, an employee in the engineering office, approached Glascoe as he was cleaning his saw. They told the other employees in the area that there was a safety meeting in the garage. When they were alone with Glascoe , they told him that they wanted to speak to him in another location. Glascoe replied that they could say whatever they had to say to him right there . DeWees started pulling Glas- coe toward the front gate . Glascoe insisted that he was not going any farther . DeWees then told Glascoe that the Company had to let him go because he had not told anyone that he was going to be off on Wednesday. Glas- coe replied that he had told Farrington . DeWees said that he had failed to notify James Young that he would be off work . Glascoe reminded DeWees that Young was away from the plant making deliveries , that Farrington had been in charge , and that Farrington had given him permission to be off. DeWees said that it really did not matter because business was slow and Glascoe had a bad absenteeism record . Glascoe reminded DeWees that he was working then the same way he had been working for the past 2 years. He had tried to get company offi- cials to make a written agreement with him providing for raises at stated intervals and, when they refused to do a At the hearing the Charging Party withdrew all objections to the election , which had not been alleged as unfair labor practices . The Good- year period involved in this case ran from July 6 to September 24, 1987 See Goodyear Tire & Rubber Ca, 138 NLRB 453 (1962) 4 Jt. Exh . 1, submitted by the parties after the hearing in this case re- cessed on July 26, 1988, is received and the record in this case is closed. Certain errors in the transcript are noted and corrected. s Farrington was not summoned to testify so this conversation as well as Glascoe's conversation on the preceding Tuesday during which he told Farrington that he would not be present on Wednesday stand unre- butted in the record. Moreover , the Respondent 's failure to call Farring- ton or explain why he was not called gives rise to an inference that, had Farrington testified , he would have supported the General Counsel's case 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD so, he began to work only a 30-or 35 -hour week . He fur- ther reminded DeWees that he had told company offi- cials long ago that he was not going to work a 40-hour week unless they gave him what he termed a written contract . Glascoe then asked DeWees if the discharge was union-related and DeWees denied that it was. Glascoe returned to his saw to retrieve his tools. He punched out and waited an hour for his final paycheck. At last DeWees came out into the yard and handed Glascoe his final paycheck , saying to Glascoe that giving him the check was the hardest thing he ever had to do. DeWees said goodbye to Glascoe and wished him luck. Glascoe insisted once more to DeWees that the union campaign was the real reason he was being discharged, adding that the Company did not want him to be around because he had a lot of influence with the other men. DeWees said he knew nothing about this charge. Some time after the discharge, Glascoe returned to the plant to speak with Cannon concerning his contribution to the ESOP plan . During this conversation Cannon told Glas- coe that if the Union came in the Company would dis- continue its profit-sharing plan. Late in June , Shepperson sent Chopp a letter inform- ing him that several of his employees were organizing the plants and warning Chopp to respect their right to do so under the National Labor Relations Act. He men- tioned in the letter the names of eight members of the inplant organizing committee , a list which included the names of Ernest Wilson and Terrance Smith. Chopp re- plied to the letter by writing another letter, dated July 2, which he sent to all employees accusing the Union of in- timidating employees . The July 2 letter acknowledged receipt of the Union 's earlier correspondence and in fact recited again the names of the eight inplant committee- men, with a comment that one of its number had already asked the Union to return his card . On July 6, a repre- sentation petition in this case was filed. Employee Donald Ladd was one of the individuals whose name appeared on the inplant committee list, which Shepperson sent to the Company . I credit his cor- roborated testimony that early in July he was on his way to get a load of lumber and had to pause a few minutes while waiting for a truck to get out of the way. During this pause he engaged in a conversation with Robert Monteiro, another employee . Cannon saw Ladd and came up to him to ask him why he was not working. When Ladd said that he was waiting for a truck to get out of the way, Cannon told him that he could be pick- ing up papers or doing some other job to fill the time. Cannon went on to ask Ladd if he was on the union committee . He told Ladd that he was very disappointed that Ladd was supporting the Union. Some weeks later, Cannon became very upset about the text of a pamphlet which the Union was distributing at the plant gate concerning Cannon's testimony in Balti- more at the representation case hearing . He came up to Ladd and said angrily to him, "Look what your man is writing about me!" He shouted to Ladd that Shepperson was taking his words out of context and insisted that he did not testify the way the pamphlet reported. As he spoke, he kept poking Ladd in the chest , saying to Ladd, "Choose the lesser of two evils . Are you going to serve the Company or serve a union?" Later on in the summer , Ladd had another conversa- tion relating to the Union with his immediate supervisor, Charles Williamson . This conversation took place in Wil- liamson 's office. Williamson told Ladd that he wanted the latter to think about what he was getting himself into and asked Ladd to write down on a piece of paper ev- erything that he wanted from the Company. Williamson promised Ladd that he would try to get it for him. On or about August 7, Supervisor Ron Alphin6 called a safety meeting of employees who worked in his depart- ment . About 10 were present . He told them in the course of the meeting that the Company was going to set up a grievance procedure for employees administered by a committee composed of Supervisors DeWees, Alphin, Brown , and Williamson . Employees were instructed to bring their grievances first to Williamson, their immedi- ate supervisor , and, if they did not get satisfaction, then carry them on to the above-named committee. Some employees testified that they were unaware of any grievance procedure in effect at the Respondent's plants before August 7, 1987. Cannon testified at the rep- resentation hearing that the Company had no grievance procedure but corrected that testimony in this case, saying that he had forgotten about the grievance proce- dure at the earlier hearing . There was in effect before August 7, 1987, a document entitled "General Employ- ment Policies," although the record is vague as to how or when it was put into effect or promulgated. In a sec- tion entitled , "Grievances" the document stated: Our company believes that a good attitude by an employee is most important in the performance of their job [sic]. It is the desire of the Company to settle any employee complaint or grievances promptly. The employee should discuss the problem with his supervisor immediately. Respondent admits that it put into effect in August 1987 another statement of policy on grievances which was contained in another general employee policies state- ment . It maintains that other portions of that document were not promulgated upon advice of counsel . The new policy statement relative to grievances , which was re- ferred to by Alphin in talking with employees in his unit, reiterated the above language and added: If an employee feels that his problem has not re- ceived appropriate attention, he should submit his grievance in writing to his department head. The matter will be addressed by a grievance committee composed of department heads and Mike Cannon, and a decision rendered promptly. Sometime early in September , Shepperson picked up Lawrence Smith, the brother of Terrance Smith , at Law- rence Smith 's house and drove him to the home of an- 6 Alphin was another of the Respondent's supervisors who was not called to testify. Again I will infer that the unexplained failure of the Re- spondent to summon Alphin creates an inference that his testimony would have supported the General Counsel 's case. CHOPP & CO. 1063 other employee , David Simms . As they were driving along Route 381, the main state highway leading from Brandywine to Charles County, Shepperson observed a pickup truck driven by Cannon in which Cannon's wife was a passenger. Cannon testified that, on this occasion, he was on his way home to Charles County when he spotted Shepperson in his rear view mirror . When Shep- person turned left from Route 381 , Cannon stopped im- mediately and turned left also .7 Shepperson and Smith proceeded to Simms' house, parked the car in the front yard , and began talking with Simms . I credit Shepper- son's corroborated testimony that, as they were talking, Cannon drove by and slowed down as he passed. Cannon admits driving past the house and seeing Shep- person 's car parked in the front yard , but insists that he interrupted his trip home just to go back to the plant to tell whoever was in charge to be on the lookout for Shepperson and not to let him in the plant. The second alleged discriminatee , Terrance Smith, had worked for the Respondent for about 3 years at the time of his discharge on July 7. He was one of two employees who regularly worked in the warehouse . Smith was as- signed to load trucks , move merchandise around the warehouse , and clean up the premises . Prior to his dis- charge, Smith became a member of the Union 's inplant committee and was so known by the Respondent. He had passed out union literature two or three times a week in front of the plant premises , had attended most of the Union's Tuesday afternoon meetings , and had worn a union button in the plant. Early in May , Smith was injured in an automobile ac- cident and was still suffering from time to time with headaches which resulted from the injury . He missed weeks of work because of the accident . Just before the accident , his foreman , David McDermott , gave him an excellent personnel evaluation . Among Smith's weak points, McDermott listed work habits, product knowl- edge of nonstocked items , and drive . Among Smith's major strong points McDermott listed attendance, prod- uct knowledge for stocking items, and attitude . McDer- mott wrote on Smith 's evaluation : "Excellent attendance. Your being here every day and on time is greatly appre- ciated . Your stock knowledge has improved greatly. Now you might want to improve it more by learning the uses of these materials . I will answer any questions to the best of my knowledge.... Complete turn around since leaving yard . Remember we are working for the custom- ers. Do everything in your power to help them."8 Record testimony is undisputed that on July 6 Smith reported for work at the appointed time and told McDermott he had a headache and did not feel well. McDermott told Smith to work until 10 a.m. and he would see if he could get Smith excused . At 10 a.m. McDermott told Smith that it would be all right for him to go home. On June 30 , Alphin had placed a handwritten note in Smith 's personnel folder, which read : "Terrance missed work on 6/29/87 because he couldn't get a ride to work. Terrance said he called here 3 times during the day but 'we couldn 't get a truck going in his direction .' We are under no obligation to find Terrance a ride to work. This is an unexcused absence ." On July 6, Alphin placed a second note in Smith 's file, which read : "On 7/6/87 at 10:28, Terrance came to me in the office and said he was leaving for the day . He said he was 'too tired to work.' He said he would 'try to get it together and see me to- morrow .' This is the 2nd unexcused absence for Ter- rance in the last 8 days."9 On July 6, McDermott placed another notation in Smith 's personnel folder which read: On May 4th, 1987, Terrance was evaluated. His weak points have weakened and no longer are his strong points strong . Since returning from his acci- dent he has had nothing but sub-40 hour weeks, and in the time spent here he has produced sub-standard work . Hours have really been a problem. Late to work, late reporting from breaks , and never late leaving the gate at 4:00. Attitude problem has arose toward myself and other employees . Drive is gone. I have talked to Terrance several times in recent months on his substandard production here . If work habits and attitude don't change for the better, I'd highly recommend that his employment be termi- nated. The memo contains an endorsement from Cannon made on the same day, asking "Why wait?" 1 ° When Smith came to work on July 7, McDermott told him that he was being discharged . He gave Smith a piece of paper, which listed seven reasons for the discharge. Smith was not allowed to retain the paper and it is not in evidence . On the same day, Alphin prepared a fourth memo to the file explaining the discharge and listing seven reasons why it took place . The memo read as fol- lows: Terrance is being terminated at the close of busi- ness this date . His employment history has been un- acceptable, especially as of late . He has worked in the yard for a period of time, but was not produc- tive and required constant supervision. He was transferred to the warehouse to provide this super- vision. He improved for a time and then reverted back to his old habits . This constitutes gross mis- conduct and insurance will not be offered , effective August 1, 1987. The following reasons are given to Terrance for his dismissal: 7 The description used on the map in evidence is not precise because the map gives only a generalized plan of the area and does not contain any marking indicating the actual road on which both vehicles travelled upon leaving Route 381. a McDermott was not summoned to testify and his failure to appear on behalf of the Respondent was not explained . This fact gives rise to an inference that his testimony , if presented , would favor the General Coun- sel 9 Smith denies ever having made the statements to Alphin which are quoted above in either memo I credit Smith 's uncontradicted denial. 10 Data introduced in the record concerning Smith 's weekly work record , beginning with the payroll period ending June 9 , 1987, indicate that , in the ensuing weeks , Smith worked 15.7, 40.8, 31.8, 30 3 , and 43 8 hours, respectively . The final figure is the number of hours Smith worked during his final week of employment. 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1. Two unexcused absences 2. Poor attitude toward supervisors and fellow workers 3. No initiative in finding work to stay busy 4. Sub-standard work performance 5. Late coming to work 3 times in the last 8 days. 6. Frequently late reporting back from breaks 7. Below 40-hour weeks in 7 of the last 8 weeks including 3 or the last 4. The memos noted above are the only ones relating to at- tendance which were placed in Smith's personnel folder during his entire 3 years of employment. Smith testified without contradiction that during his final weeks of em- ployment, McDermott never spoke to him about any at- tendance-related deficiency. The third alleged discriminatee, Ernest L. Wilson Jr., was discharged about a week following Smith' s termina- tion. Wilson is a convicted felon, having pleaded guilty in 1983 to charges of robbery and illegal use of handgun in the Circuit Court for Prince George's County. While an inmate at the Southern Maryland prerelease center, he obtained employment with the Respondent in January 1986. After being released he continued to work for the Company and did so until his discharge on July 16. He was originally employed as a forklift helper, later became a helper on a delivery van, and was ultimately assigned to drive truck 17, a small flatbed vehicle used to deliver small items to construction sites. Wilson was a union supporter from the inception of the campaign and his name appeared on the list of in- plant committeemen, which Shepperson sent to Chopp. At the time of his discharge, Wilson had become chair- man of the organizing committee. In addition to attend- ance at weekly union meetings, Wilson leafletted the plant on several occasions, wore a "Vote Yes" button to work everyday, and served as the regular channel of communication between members of the organizing com- mittee and other employees in the plant. He estimated in his testimony that he had distributed between 20 and 25 union authorization cards to company employees. On July 15, Wilson drove truck 17, his regular deliv- ery truck, and was assigned to work with Cyril A. Pitt- man, another driver whose truck had been sidelined for repairs. Wilson and Pittman made three delivery runs, at 7 a.m., 11 a.m., and about 1:30 p.m. During the lunch hour, the truck was backed up to the loading dock at the warehouse. In the parking area abutting the dock is a small swale or groove in which the rear tires of a truck rest when the truck is parked flush against the dock. During the lunchbreak Pittman backed the truck up against the dock and spun the rear wheels in reverse, making slight truck marks in the pavement in the proc- ess. Apparently Pittman's identity as.the person who per- formed this act was unknown until the trial in this case, when he admitted doing so during the course of his testi- mony. The Respondent pinned the blame for the incident on Wilson and assertedly discharged him for that reason. No one saw who spun the wheels of truck 17 on the afternoon in question. In fact, no one other than Pittman was present as the wheels of the truck were being spun in reverse while the vehicle rested against the loading dock. The sequence of events leading from this infraction to Wilson's discharge began when employee Kevin Chew noticed a few minutes thereafter that the rear tires were smoking on truck 17, that blacktop appeared on both tires, and that asphalt near the tires appeared to be dug up. He also knew that both Wilson and Pittman were in the warehouse area on their lunchbreak, as were a large number of other employees. He immediately re- ported these matters to Cannon in Cannon's office. Can- non's response to Chew was that he was not going down to the warehouse area immediately because if he did ev- eryone would know that Chew had reported the incident to him. Both Chew and Wilson made their afternoon de- liveries as scheduled. At the end of the day, Chew, Alphin, and Cannon went to the scene of the reported incident, compared tire marks with the width of the tires on both Chew's truck and Wilson's truck, and apparently came to the conclusion that it was Wilson's truck that had caused the tire marks in the asphalt. According to Cannon, it was Alphin, his subordinate, who made the decision to discharge Wilson. We do not have Alphin's version of the event before us. On the morning of June 16, when Wilson arrived at work he was told that Alphin wanted to see both Pittman and himself. When Wilson spoke to Alphin, the latter told him that he had measured the tire width and the distance between the markings in the asphalt, had compared them with every other truck, and had come to the conclusion that the marks had been made by truck 17. Alphin and Williamson then began to question other employees in the area, asking them if they had seen Wilson spin the tires on truck 17 the preceding day. None of those who were questioned had seen Wilson do it, and Wilson em- phatically denied doing it. Pittman testified that he de- clined to speak up on that occasion because he was afraid his own job might be in jeopardy. Shortly thereaf- ter Alphin and Williamson called both Wilson and Pitt- man into the foreman's office. Williamson told Wilson that he had to let him go for spinning the tires on the truck and for threatening Kevin Chew. Wilson asked Alphin what he had said to Chew that warranted dis- charge. Alphin replied that he could not repeat the state- ment, insisting only that Wilson said something to Chew. t t Wilson was then given his final paycheck and Pittman was sent back to work. Alphin told a group of employees at a meeting, which took place at the end of that day, that he might have been wrong in firing Wilson but he went ahead and did so because he thought that Wilson was the one who had spun the tires on the truck. The memo Alphin placed in the file memorializing his personnel action takes a slightly different tack than the statements he and Williamson had made, first to Wilson and then to others earlier in the day. The memo read, in pertinent part: " Chew testified at the hearing that on the final morning of Wilson's employment when the tire-spinning incident was under discussion Wilson told Chew in Pittman's presence that he wished that he had placed Chew's "fat ass" between the truck and the dock when he had spun the tires . Both Wilson and Pittman denied that any such statement had been made. I credit their denial. CHOPP & CO. Several weeks ago, the steel frame on Ernest's truck was bent so badly that the bed would not lock into position . This was apparently caused by the chain that was used to secure the load to the frame remaining hooked to the frame as the bed was being raised . Ernest refused to admit fault, but he is well aware (as are all of our equipment opera- tors) that he is responsible for the care , proper oper- ation, and maintenance of his vehicle. On returning from a delivery on 7/15/87 be- tween 1 :30-2:00 pm, Ernest's truck was backed up flush against the concrete loading dock so that it could move back no further and tires were spun on the asphalt until they smoked and rubber was worn off. Kevin Chew saw Ernest beside the truck with the tires still smoking although Ernest refused again to admit fault . Ernest was placed in charge of that vehicle on the morning of 7/15/87 and he was re- sponsible for its care for the balance of that day. Abuse of equipment is not tolerated at this Com- pany by anyone, and every employee knows the im- portance and priority that is placed upon the care of forklifts, trucks, etc . Deliberate abuse is grounds for immediate dismissal. After my initial discussion with Ernest at 7:00 am this date (7/16/87) regarding the truck incident, Ernest made some unkind and beligerent comments to Kevin Chew, as per statement by Kevin. I con- sidered these remarks to be defiant and inflamma- tory. Ernest was terminated shortly thereafter. The election at the Respondent's two plants took place on September 24. As noted above, the Union lost by a narrow margin . At that time, the standard hiring-in rate for the lumber yard and the truss department employees was $4 an hour . For truckdrivers the starting rate was $5. Sometimes slightly higher rates were paid to new employees if they had previous experience. From time to time individual employees were given individual raises, but there was no standard policy or practice of giving wage increases in any stated amount at any particular point in time . The Respondent admitted that wages were one of the issues raised and discussed during the election campaign. The Union filed objections to the conduct of the elec- tion on September 29. Those objections, or at least those which were also alleged as unfair labor practices by the General Counsel , are now pending in this case. On October 6, the Respondent gave all of its employ- ees, regardless of their current wage rate , an across-the- board increase of $ 1 per hour . This was the first across- the-board increase ever granted on a shopwide or plantwide basis in the history of the Respondent 's plants. The justification advanced for doing so was that the Re- spondent was experiencing severe problems in attracting and retaining qualified employees and that such action was necessary to reduce its abnormally high turnover rate . It admits that this action failed in its objective and that it is still experiencing a high turnover among its pro- duction and maintenance employees. II. ANALYSIS AND CONCLUSIONS 1065 A. Allegations of Independent Violations of Section 8(a)(1) of the Act and Objectionable Conduct (a) Sometime after Glascoe was discharged on June 25, he returned to the plant to discuss with Cannon his contribution to the Company's ESOP plan. During the course of this discussion , Cannon told Glascoe that if the Union came into the plant the Company would discon- tinue its retirement program . Such a statement constitut- ed a violation of Section 8(a)(1) of the Act. In all likeli- hood , this event took place after July 6 , the date on which the Union filed its representation petition. Ac- cordingly , the statement also constituted objectionable conduct warranting the setting aside of the election. (b) On July 6, the date on which the petition was filed, Cannon and Ladd had a conversation in the warehouse in which Cannon criticized Ladd for not working and for not making better use of "down time," which he had to spend waiting for others to get out of his way. Cannon asked Ladd if Ladd was a member of the union committee and told him that he was very disappointed to learn of Ladd's membership . These statements and ques- tions were part of an intimidating conversation in which Cannon interrogated an employee concerning his union activities in the course of administering a reprimand. As such , the question amounted to coercive interrogation and a violation of Section 8(a)(1) of the Act, and was ob- jectionable conduct warranting the setting aside of the election. (c) In another conversation with Ladd relating to the Union , Cannon angrily complained about the contents of a union leaflet and began poking Ladd while registering his complaint . He told Ladd that he had to make a fun- damental choice "between two evils," either supporting the Company or supporting the Union . Cannon's actions on this occasion constitute an assault upon an employee for engaging in union activities and, as such, were a vio- lation of Section 8(a)(1) of the Act and objectionable conduct warranting the setting aside of the election. (d) On August 7, Alphin announced to the employees in his unit that the Company was instituting a new griev- ance procedure . Previously, an unpublished statement of policy encouraged employees to register any complaints with their supervisor, but it did not set forth any further steps which could or should be taken in the event a su- pervisor failed to adjust a grievance to the employee's satisfaction . The new policy statement established a su- pervisory committee to hear written complaints which the employee 's immediate supervisor had failed to re- solve . No such committee previously existed . Alphin made mention of the new committee in talking with his subordinates . By establishing and announcing a new grievance procedure in the course of a representation campaign , the Respondent made an unlawful grant of benefits , which violated Section 8(a)(1) of the Act. No explanation or business justification was proffered by the Respondent which would serve to excuse this action or 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD its timing . Its action also constituted objectionable con- duct warranting the setting aside of the election. 112 (e) In the course of the election campaign , Williamson asked Ladd to write down the things that he wanted from the Company and told Ladd that he would try to get those things from the Company for Ladd. Such a statement constituted an unlawful solicitation of griev- ances and an unlawful promise of benefit, which violated Section 8(a)(1) of the Act. It also amounted to objection- able conduct warranting the setting aside of the election. (t) Not long before the election , Cannon was driving home from the plant and noticed Shepperson and a com- pany employee driving behind him along Route 381. When Shepperson turned off the highway, Cannon inter- rupted his trip, turned off Route 381, and soon passed the point where Shepperson had stopped. I have already credited the corroborated version of the event offered by Shepperson to the effect that Cannon slowed down as he saw Shepperson talking with Lawrence Smith and Simms in Simms ' front yard . This sequence of events constituted unlawful surveillance of union activities. It was a violation of Section 8(a)(1) of the Act and objec- tionable conduct warranting the setting aside of the elec- tion. B. The Discharges of Glascoe, Smith, and Wilson All the discharges alleged by the General Counsel to be discriminatory in character must be evaluated against a background of hostility to the Union' s organizing drive, which was evidenced both by independent viola- tions of Section 8(a)(1) of the Act and by other state- ments from Respondent 's upper management which dem- onstrated deep and abiding hostility to unionization. All three discharges were marked by suspicious timing, fall- ing within a timespan of 3 weeks and within only a few weeks after the outset of the organizing campaign. More- over, in all three instances , the discharged employees were union supporters and had publicly demonstrated their allegiance not long before they were terminated. Glascoe was a longtime employee of the Respondent and a skilled saw operator . He was also a frequent com- plainer at company meetings and had been known as such long before the union drive began. Cannon testified that Glascoe was always asking for a raise, both publicly and privately . In previous years, Glascoe had actually concluded written memos of understanding with the Re- spondent according to which he was promised raises of stated amounts at stated intervals provided that his at- tendance and performance measured up to agreed stand- ards. In years past Glascoe apparently had both the lon- gevity and the ability to insist on such conditions from the Respondent. Cannon admitted that before he became 12 There is no foundation in the record for Cannon 's statement that the Company did nothing different by establishing this procedure and was merely reiterating to its employees something which was already in place. There is a considerable dispute that any grievance procedure at all was in place in August 1987 Cannon could not remember any grievance procedure during the representation case hearing and had to have his memory jogged . Even if the Respondent put in writing a past practice or procedure which was only verbal or casual in character , such an action is an unlawful grant of benefit within the meaning of Sec. 8 (a)(1) of the Act if it was done during an election campaign without some business justifi- cation for its timing. general manager and was in charge of the truss plant Glascoe "was the best. There was nobody better." He went on to say that he still had that kind of respect for Glascoe. In 1987, the Respondent was unwilling to make a writ- ten commitment to Glascoe relating to raises . In a con- versation with DeWees in March at a local bar , Glascoe proposed another written agreement-regular 40-hour a week attendance in exchange for agreed-upon raises at stated intervals . DeWees refused , saying that he did not work that way, whereupon Glascoe flatly told DeWees that he was not going to work a full 40-hour week for the kind of money he was making . 13 His pattern of at- tendance was tolerated by the Respondent until he sounded off at an employee meeting on June 17 that the Company would not be having union problems if it paid its employees better.14 Within a week of that event, Glascoe was terminated after 16 years of service. Respondent 's excuse for discharging Glascoe under these circumstances is somewhat confusing . Throughout this case, the Respondent was complaining about a chronic shortage of help . Indeed, this was the asserted reason it gave an across-the-board wage increase to the entire work force early in October. Yet in spite of this chronic shortage of help, it also said that it was experi- encing a downturn in business in June and this downturn was the reason that Glascoe was discharged. The Com- pany said it needed people on the job to get out work in a hurry, and Glascoe's 4-to 5-day workweek simply would not do, despite the fact that he was the most skilled saw operator in the plant . I credit Glascoe 's testi- mony that he always let the Respondent know in ad- vance when he was taking off and was always present whenever he was requested to work in order to get out a rush order . On the day before his discharge, he was absent in accordance with his normal work pattern and had informed his supervisor the preceding day that he would not be in. McDermott offered no objection. In light of these circumstances, I conclude that the Re- spondent discharged Evanston Glascoe because of his membership in and activities on behalf of the Union. Ac- cordingly , the discharge violated Section 8(a)(1) and (3) of the Act. Terrance Smith was discharged about 2 weeks later for poor attendance. Like Glascoe, he worked a 40-hour week or better during his final week of employment. The Respondent proffered the same excuse for the timing of Smith 's discharge as it did in Glascoe's case. It had insuf- ficient help, a downturn in business , and it needed Smith when it needed him. However, the event which trig- gered Smith 's discharge was the fact that he was ill on July 6 and left work at 10 a.m. to go home. The record is uncontradicted that, on this occasion , Smith had McDermott 's permission to leave for the reasons stated, IS Beginning with the payroll period ending April 21, Glascoe worked 31.8, 24, 31.5, 40.5, 31.6, 30, 39 9, 31.3, and 31. 9 hours , respectively. In his final week with the Respondent , Glascoe worked a 40-hour week. 14 In light of the fact that Glascoe made these remarks in front of most of the employees in the plant , including Cannon , Cannon 's testimony that he was not aware of Glascoe's union sympathies until after Glascoe had been fired is transparently false. CHOPP & CO. 1067 so he was essentially discharged the following day for doing what he had been authorized to do . In this case, as in Glascoe 's, it is clear that the Respondent was simply looking for an excuse to rid itself of another union adher- ent and seized upon this event to do so . I conclude that by discharging Terrance Smith the Respondent violated Section 8(a)(1) and (3) of the Act. Since the discharge occurred following the filing of the representation peti- tion on July 6, it also was objectionable conduct which warrants the setting aside of the election." s Within another 10 days, the chairman of the inhouse organizing committee was also gone . The reason prof- fered in Wilson 's case was not related to attendance but to alleged abuse of company property . In fact, Wilson was not guilty of any abuse of company property and the Respondent never had any substantial proof that he was. It was his partner for the day, Pittman , who had backed truck 17 against the loading dock and had spun its wheels until they made two marks in the asphalt pavement. However, once the tracks in the asphalt and the smoke on the tires of the truck were discovered, it was Wilson , not Pittman , who was the focus of company attention . The fact that Wilson flatly denied any involve- ment in the episode meant nothing. Several employees, including the one who first reported the matter, were quizzed as to whether they had seen Wilson spin the tires of the truck . in the asphalt near the loading dock. When no eyewitnesses could be located, Respondent 's supervi- sors changed their original tack from one of truck abuse to responsibility for truck abuse, since the truck had been assigned to Wilson for deliveries. The important feature of this inquiry was that Respondent was not trying to find out who performed the act in question. It was set- ting about to make a case against Wilson and it did so. The fact that the guilty party was never ferreted out and still remains on the company payroll was apparently ir- relevant to the investigation. 16 The disparity is great between the treatment accorded Wilson and the Respondent's reaction to other instances of equipment abuse which were far more serious than this trivial incident . One employee named John Thomp- son ran a forklift into a truck tire because he was incapa- ble of operating the equipment assigned to him . His pun- ishment was that he was given another job which did not entail operating a forklift. Pittman had a bad record 15 The various memos in Smith 's personnel file in evidence in this case suggest that the Respondent was actually gunning for Smith about a week before his July 6 absence . Smith's 3-year-old personnel file was void of any reprimands or notations relating to attendance until the end of June 1987 . In fact , Smith had been complimented for his attendance in his most recent written evaluation early in May. Then a flurry of memos appeared , written in an argumentative style that seems more appropriate for a brief to an administrative law judge than for an entry recording an event in a busy day 's activities . These memos could hardly be called rep- rimands since they were never given to the individual who was being criticized . They were position papers which were logged in for future reference , namely the record in this case I conclude that these items were simply part of a paper trail which the Respondent was laying in order to terminate Smith , and that it set about this effort immediately upon discharging Glascoe 16 A second and makeweight reason used by the Respondent to justify its decision to discharge Wilson was the allegation that Wilson had spoken unkindly to another employee on the morning of the discharge. I have concluded that , as a matter of fact , Wilson never uttered the re- marks attributed to him by Chew and by Wilson 's supervisors. as an over-the-road truckdriver so the Respondent's in- surance carrier refused to insure him. Instead of dis- charging him, the Respondent simply reassigned Pittman to a job in the lumber yard operating a forklift. Truck- driver Paul Deale was initially discharged because he became intoxicated at a bar and fell asleep from an over- dose of sleeping pills while making a delivery in one of the Respondent's trucks . Deale was discharged and later rehired . Truckdriver Johnny Williams broke a truck axle and lost a clutch . Instead of being fired, he was simply reassigned to another job which did not involve driving a truck . These incidents , involving damage or potential damage far more serious than what Pittman did , indicate that the punishment meted out to Wilson was adminis- tered for a reason wholly unrelated to what happened to truck 17 on July 15. While the Respondent was most in- sistent that it held the driver of the truck responsible for any damage done to his vehicle irrespective of who caused the damage , it was unable to point to any other occasion on which it discharged any driver for the mis- conduct of another while operating his assigned vehicle. In light of these circumstances, I conclude that the Re- spondent discharged Ernest L. Wilson Jr. because of his membership in and activities on behalf of the Union and that the discharge violated Section 8(a)(1) and (3) of the Act. Since it occurred after the Union filed the represen- tation petition in this case , it also constituted objection- able conduct warranting the setting aside of the election. C. The October 6 Wage Increase The Respondent stipulated that on October 6 it grant- ed a wage increase across -the-board of $1 an hour, bring- ing its lowest hiring -in rate to $5 per hour. This meant that its lowest rated employees received increases amounting to 25 percent of their basic wage . Truckdriv- ers with a starting rate of $5 received an increase of 20 percent of their basic wage. Employees with greater skill and longevity also received $ 1-an-hour increases, al- though the percentage of their increases were less, so a certain wage or salary compression resulted from this action . In the past, the Respondent reviewed employees periodically and gave out individual increases in those amounts which it deemed appropriate based on each em- ployee's individual record . It never made across-the- board wage adjustments. Wage increases given during the pendency of objec- tions to an election are violative of the Act just as are increases given during an election campaign, unless there is a business reason which can justify the timing of the employer's generosity as being something other than an inducement to reject the Union. Gabriel Mfg. Co., 201 NLRB 1015 (1973); Mercury Industries, Inc., 242 NLRB 90 (1979); Reliable Ambulance Service, 256 NLRB 1165 (1981). The burden is on the employer to establish the justification for its action . Where, as here, the question of wages or benefits was raised by the Union during the campaign and became a campaign issue, a justification usually cannot be established. Seneca Plastics, Inc., 149 NLRB 320 (1964). The nub of the Respondent 's argument is that the labor market in southern Prince George's County and 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Charles County was tight and it had to make these ad- justments in order to stem the flow of employees from the plant and also to attract new employees . In support of this facet of its argument , the Respondent introduced monthly statistics from the Maryland Department of Labor and Industry showing low unemployment rates over a period of about 2 years in the area . Conceding the Respondent 's point that the labor market was tight on October 6, 1987, when it granted the wage increases at issue, it must also be observed that the market was tight for the entire period covered by the figures in evidence, and the variations from month to month in the availabil- ity of help is miniscule . As a supplier to the building and construction industry of the area, and particularly to the residential segment of that industry , the Respondent's business is seasonal . In October , when the wage increase took place , the Respondent was heading toward its slow season, when a shortage of employees would not be as critical as in the summer months . One of the essential elements of a justification for a wage increase during the pendency of a representation petition is timing-why was it necessary to grant an increase , even for a plausible or defensible reason , at the moment when it was grant- ed? In this case , the Respondent was unable to show that its labor problems were significantly different in October 1987 than they were earlier in the same year or indeed during the preceding year. Accordingly, this failure of proof leads to the conclusion that a virulently antiunion Respondent , having narrowly defeated the Union in late September and faced with the possibility of another elec- tion , was moving to shore up its campaign position in the event of a rerun. Another feature of the October 6 wage increase sup- ports the same conclusion . Never before had this em- ployer granted an across-the -board increase. Its action on that date was wholly out of keeping with past practice. Moreover, the amount of that increase was enormous, a wage adjustment ranging from 20 to 25 percent in a single sweep . This was the same employer who in March was quibbling about giving Glascoe some assurance of a 50-cent increase at a fixed future date . In light of these considerations , I conclude that by granting its employees an increase in wages on October 6, 1987 , the Respondent violated Section 8(a)(1) of the Act. On these findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1. Chopp & Company, Inc. is now and at all times ma- terial has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Washington, D. C. District Council, United Broth- erhood of Carpenters & Joiners of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Evanston Glascoe, Terrance Smith, and Ernest L. Wilson Jr . because of their membership in and activities on behalf of the Union, the Respondent here violated Section 8(a)(3) of the Act. 4. By the acts and conduct set forth above in Conclu- sion of Law 3; by coercively interrogating employees concerning their union activities ; by assaulting employees for engaging in union activities ; by threatening employ- ees with the loss of benefits for engaging in union activi- ties ; by soliciting grievances from employees in order to adjust them ; by promising employees benefits to dissuade them from voting for a union ; by instituting a new griev- ance procedure in order to dissuade employees from sup- porting a union ; and by granting employees wage in- creases to dissuade them from voting for a union , the Re- spondent violated Section 8(a)(1) of the Act. Those acts, which occurred between July 6 and September 24, 1987, constituted objectionable conduct warranting the setting aside of an election conducted on September 24, 1987. 5. The aforesaid unfair labor practices and objection- able conduct have a close, intimate , and adverse effect on the free flow of commerce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices and objectionable conduct af- fecting the results of a representation election , I will rec- ommend to the Board that the Respondent be required to cease and desist therefrom and to take certain affirma- tive actions designed to effectuate the purposes and poli- cies of the Act. Because the violations of the Act found are repeated, pervasive, and evidence a continuing dispo- sition on the part of this Respondent to ignore totally the rights of its employees , I will recommend to the Board a so-called broad 8(a)(1) remedy which is designed to sup- press any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). I will recom- mend that the Respondent be required to offer full and immediate reinstatement to Evanston Glascoe, Terrance Smith, and Ernest L. Wilson Jr. to their former or sub- stantially equivalent employment, without prejudice to their seniority or other benefits previously enjoyed, with backpay and payments for loss of benefits computed in accordance with the formula set forth in the Woolworth case'' with interest thereon at the short-term Federal rate used to compute interest on underpayments and overpayments of Federal income taxes under the Tax Reform Act of 1986. New Horizons for the Retarded, 283 NLRB 1173 (1987). I will also recommend that the Re- spondent be required to post the usual notice, advising its employees of their rights and of the results in this case. [Recommended Order omitted from publication.] 17 F. W. Woolworth Co., 90 NLRB 289 (1950).