Coronet Instructional Media

National Labor Relations Board - Board Decisions

Jul 24, 1980

250 N.L.R.B. 940 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coronet Instructional Media, A Division of Esquire,
Inc. and Warehouse, Mail Order, Office Tech-
nical and Professional Employees Union, Local
743, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 13-CA-17997, 13-RC-14770
July 24, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On July 27, 1979, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in
this proceeding. Thereafter, Respondent, General
Counsel, and Charging Party filed exceptions and
supporting briefs, and Respondent and General
Counsel filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(3) and (1) of
the Act in discharging employee Bradchulis on
May 18, 1978,2 for engaging in union activity, but
that the discharge did not constitute objectionable
conduct with respect to the representation election
held on June 30 as the discharge occurred prior to
the filing of the representation petition on May 22.
We also agree for the reasons set forth below-and
contrary to our dissenting colleague-that the an-
nouncement of an improved retirement plan about
a week before the election was not unlawful and
did not constitute objectionable conduct. However,
we disagree with the Administrative Law Judge's
conclusion, as explained below, that Respondent's
announcing a 10-percent across-the-board pay in-
crease on May 25 was not improper and find that it
I Respondent and the General Counsel have excepted to certain credi-
bility Findings made by the Administrative L aw Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
lions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd 188 F2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings
2 All dates herein are 1978 unless indicated otherwise
violated Section 8(a)(1) of the Act and constituted
objectionable preelection conduct.
With respect to the retirement plan issue the situ-
ation is as follows: The development of the new
plan began in July 1977 when Esquire, the parent
company of Respondent, hired an outside company
which in turn hired Kenneth F. Rogers to prepare
a retirement system for Esquire covering all 12 of
its subsidiaries, including Respondent. Previously,
these subsidiary companies had been covered by
different plans with different ranges of benefits.
The minutes of Esquire board meetings show the
various stages of development of the new pension
system including a resolution to have the plan im-
plemented by April 1, the end of the corporation's
fiscal year, which was before any union activity
began. The plan developed by Rogers was passed
by the Esquire board on March 30 to be imple-
mented the following day. Announcement to em-
ployees of the plan was first delayed pending the
working out of certain details such as funding.3 It
was then announced and explained by Rogers at
the various plants at times he, himself, decided
upon as fitting in with his schedule. Thus, unlike
with the wage increase which we find below to be
unlawful, and contrary to our dissenting colleague,
there is no showing that union considerations
played any part in the timing of the announcement
of the new pension plan, for Rogers, who made
that decision, was not part of management and had,
insofar as the evidence shows, no knowledge of the
union campaign. Furthermore, the announcement
to unit employees was not something unique as to
them but was part of a corporatewide (with minor
exceptions) announcement to all employees who
would beeligible under the new retirement plan. In
any event, we agree with the Administrative Law
Judge that the implementation and announcement
of the retirement plan was not unlawful or objec-
tionable conduct as the plan was developed and
adopted prior to the beginning of union activities
with its announcement determined by economic,
not union-related, matters.4
3 Our dissenting colleague has made much of the details that had to be
worked out However, the problems relating to Respondent's Modern
Curriculum plant and another plant in Canada were unique to those two
plants Other problems which were worked out were problems common
to all the plants such as the problem regarding funding There is no evi-
dence showing that Respondent ever intended to wait until all details
were settled before instituting the pension plan Indeed, the minutes of
the March 30 board meeting showed that the parent company was anx-
ious to implement the plan as soon as it could
4 The dissent points to certain statements made by management offi-
cials to employee Bradchulis on May 25, i.e, that a pension plan was in
the works which would take effect shortly, as evidence supporting his
contention that the subsequent announcement of the retirement plan was
unlawful The dissent's reliance on these statements is misplaced It is
clear that such remarks were made wholly in response to Bradchulis'
Continued
250 NLRB No. 133
940
CORONET INSTRUCTIONAL MEDIA
As for the pay raise, it appears that, in October
1977, Respondent's personnel manager, Bickhard,
was directed to conduct a wage survey in anticipa-
tion of a raise for Respondent's employees, includ-
ing the unit warehouse employees involved in this
proceeding. On May 18, Bickhard presented her
completed survey to her superior, Golden. Insofar
as it is relevant here, the survey included a job
classification list, the names of the employees in
each classification, their tenure and current pay,
and Bickhard's proposed salary range for each job.
Whether a particular employee's pay would come
within the recommended range depended on fac-
tors such as expertise, tenure, and difficulty of the
job. The following day-the same day it received a
letter from the Union demanding recognition-Re-
spondent called a meeting of its warehouse em-
ployees, at which it announced that the wage
survey had been completed and that the employees
would be called in individually and told what, if
any, pay raise each would receive.
The Union filed its representation petition, as
noted, on May 22. Three days later, Respondent
held another meeting of the warehouse employees
at which Whitworth, Respondent's president, an-
nounced that the employees were all going to re-
ceive, immediately, a 10-percent wage increase. He
also told the employees he was aware that there
was union activity going on but, as the wage
survey had been under study for some time, he was
implementing its results.
The Administrative Law Judge found the 10-per-
cent increase not unlawful or objectionable essen-
tially on the grounds that it was a consequence of
the wage survey commenced long before union ac-
tivity began, and that upon completion of that
survey the increase was promptly announced and
then given, as required. The record, however, does
not support his finding.
The facts above show that the survey provides
for a range of wage increases to be determined for
each employee on the basis of various factors, in-
cluding the employee's tenure, expertise, and the
difficulty of each job. This was confirmed by Re-
spondent's announcement on May 19 that someone
from management would talk to each employee in-
dividually about the increase. Consequently, the 10-
percent across-the-board wage increase granted on
May 25 could not have been derived from the
wage survey, and no evidence was presented that
statement that the employees wanted a better pension plan At most, the
officials replies constituted nothing more than innocent spontaneous pass-
ing references to what they knew already had been decided and acted
upon concerning a new retirement plan to be instituted for employees on
a corporatewide basis. In this context, their comments do not alter the
fact that the plan was conceived and approsed before the Union's ap-
pearance on the scene or our conclusionr that the announcemernt aInd its
timing by Rogers was coincidental thereto
the survey provided for such an increase. Indeed, a
flat across-the-board increase was inconsistent with
the method, described above, of individual determi-
nation of each increase. Thus, we find that the 10-
percent wage increase was not provided by and,
therefore, was not an outgrowth of the survey initi-
ated prior to the onset of union activities. Rather,
we conclude that it was an amount determined and
granted after union activity began and just a week
before the election, and in response to the union
campaign. Consequently, we find that in granting
the pay increase on May 25 to the unit employees,
an increase occurring within the "critical period"
before the election, Respondent violated Section
8(a)(1) of the Act 5 and interfered with the election
of June 30, thereby requiring that that election be
set aside and a second election be conducted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Coronet Instructional Media, A Division of Es-
quire, Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph 1:
1. Cease and desist from:
"(a) Discharging its employees for engaging in
activities on behalf of Warehouse, Mail Order,
Office, Technical and Professional Employees
Union, Local 743, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization.
"(b) Promising, announcing, and granting wage
increases in order to discourage membership in and
activities on behalf of the above-named labor orga-
nization, or any other labor organization.
"(c) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights guaranteed by Section 7 of
the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held
on June 30, 1978, in Case 13-RC- 4770, be, and it
hereby is, set aside, and that said case is hereby re-
manded to the Regional Director for Region 13 for
purposes of conducting a second election, as direct-
ed below.
".rro. 1 h/d cr (Forporatio ,. 230) NlR 1 1 f I 1 77)
941
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Direction of Second Election omitted from pub-
lication.] 6
MEMBER JENKINS, dissenting in part:
I agree with my colleagues that Respondent vio-
lated Section 8(a)(l) by announcing and granting a
10-percent across-the-board wage increase and vio-
lated Section 8(a)(3) by discharging Bradchulis. I
also agree with my colleagues' decision to set aside
the election held on June 30, 1978, and to direct a
second election. Unlike my colleagues, however, I
also find that Respondent violated Section 8(a)(1)
of the Acy by announcing and granting new retire-
ment plan benefits to the unit employees shortly
before the election.
Respondent presented evidence that new im-
proved pension benefits had been tentatively ap-
proved at the end of March 1978. The record
shows, however, that the details of the plan were
not fully developed at that time. In addition, it is
undisputed that the decision to inform employees
of such benefits was not made until June 1, 1978,
more than a week after the instant petition was
filed. Thus, it is plain that this case is not like
Schwab Foods,7 where the employer published ex-
isting benefits in response to an issue raised by the
Union. Instead, this case involves new and im-
proved benefits conceived and only tentatively ap-
proved before the petition was filed but neither
fully developed nor ready for announcement until
after the union organizing campaign began and the
petition was filed.
My colleagues' finding that the announcement of
the new improved pension plan was "delayed and
determined wholly by economic, and not union-re-
lated matters" fails, I think, to take account of all
the facts. That union considerations entered into
the timing of the announcement of the new pension
plan is shown by remarks made by Respondent's
vice president, Joe Golden, and its president, Bob
Whitworth.8 Thus, Bradchulis testified that, after
the May 25 meeting where the 10-percent across-
the-board wage increase was announced, he told
Golden and Whitworth that the employees wanted
a better pension plan. Golden replied that there
was a pension plan in the works, that he felt the
employees would be happy with it, and that it was
supposed to take effect within a short period of
time. No previous mention of a new pension plan
had been made to Respondent's employees. In ad-
dition, Bradchulis testified that Whitworth said he
[xcelvior footnote omitted from publication .
Schwub Fo:Jds, Inc.. dhb/a Scorrs IG4A liodlinler. 223 N\LRB 394
(1976)
' These remarks are based on the uncontradicted testimonly f Brad-
chulis whom the Administrative I aw Judge found "impresses me as
candid witness." I note that Gordon did nriot testify and that Whitwsorlth
did testify but neither confirmed nor denied these remarks
knew the employees were interested in the Union
but he was hoping the Company was doing a
better job of making amends and was trying to do
things right.
My colleagues also fail to give proper weight to
other evidence that Respondent accelerated the an-
nouncement of the new improved pension benefits
in response to the Union's organizing campaign.
Thus, Respondent explains that the plan was not
immediately implemented in April because of spe-
cial problems at two other plants. 9 But those spe-
cial problems continued to exist in June and Re-
spondent nevertheless announced the plan to the
unit employees here. In addition, I note that the
booklet explaining the structure and details of the
new plan had not yet been prepared in June. More
telling, however, is that no employee in Respond-
ent's management hierarchy had sufficient knowl-
edge in June of the newly adopted plan to explain
it to the unit employees. Instead, Respondent had
to rely on Rogers, an employee of the consulting
company that prepared the plan, to explain it to the
employees.10 This decision to send Rogers to an-
nounce the new pension plan bears a striking simi-
larity to the announcement of the wage increase
that my colleagues and I agree was unlawful. In
both instances, Respondent engaged in a lengthy
survey and systematic development of improved
terms of employment before the union activity
began. Similarly, in both instances, Respondent de-
termined and adopted the announced version of the
respective improved benefits after the petition was
filed. The wage increase was announced shortly
after the petition was filed. The new pension bene-
fits were announced shortly before the election.
Finally, it cannot be overlooked that the an-
nouncement of the new improved pension plan fol-
lowed closely on the heels of other conduct that
violated the Act. Thus, Respondent unlawfully dis-
charged employee Bradchulis on May 18 because
of his union activity and unlawfully announced and
9 The two other plants swere Respondent's Modern Curriculum plant
and another plant il Canada The plan was not announced in June at
either plant. Instead. announcement of the plan at the Modern Curricu-
lum plant was delayed until the fall of 1978 v hen the problem there was
finally resolved The record does not shose whether, or when, the plan
was announced at the Canadian plant.
Respondent also claimed that immediate implementation was delayed
in April because an Esquire director suggested that social security be in-
cluded in the plan Finally, I note that Respondent did not select an in-
sestment agericy until mid-May 1978
' Conltrary to nm cvolleagues, the record does iiot show that Rogers
made the decision oin the timing of the annoulncement of the pension plan
to the employees. Rather. as the Adnministratls I a.w Judge found,
Rogers received the final go-ahead to iinform the employees from Es-
quire's director of employee benefits on Jule I. 197X hus. it is clear
that the decision on the timinig (of Ihe announcement of Ihe pension plan
was made by Responidet's oflficials after Respondent kiilc. about the
unionl camnpaignl
942
CORONET INSTRUCTIONAL MEDIA
granted a 10-percent across-the-board wage in-
crease on May 25.11
In sum, I find that Respondent has not estab-
lished that its announcement of the new improved
pension benefits would have been made in June
1978 even if there were no union campaign.12
Hence, I find that Respondent violated Section
8(a)(1) of the Act by announcing and granting new
improved pension benefits shortly before the elec-
tion.
a Bradchulis w s reinstated shortly after the Union filed its petition on
May 22 I note that the Administrative Law Judge found that Respond-
ent's supervisor. Riddle. made remarks that demonstrate "Respondenlt',
desire to use the reinstatement of Bradchulis and the wage increase as
tools to improve employees attitude and remose the potential of union-
ization."
12 See .4rr,. Elamic Corporation, 230 Nl RB 110 (1977); and M.r f'rnc.
Inc. 212 NLRB 99. 402 (1974)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees for
engaging in activities on behalf of Warehouse,
Mail Order, Office, Technical and Professional
Employees Union, Local 743, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any
other labor organization.
WE HAVE reinstated our employee, Richard
W. Bradchulis, to his former job, and have
paid him in full the amount of his loss of earn-
ings, with appropriate interest, which resulted
from our discriminatory action against him.
WE WILL NOT promise, announce, and grant
wage increases in order to discourage mmber-
ship in or activities on behalf of the above-
named labor organization, or any other labor
organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the Act.
CORONET INSTRUCTIONAL MEDIA, A
DIVISION OF ESQUIRE, INC.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This matter was heard at Chicago, Illinois, on April 9
and 10, 1979. The complaint which issued on October
31, 1978, is based upon a charge filed August 30, 1978,
and amended on September 18, and 19, 1978, by the
Union. The complaint alleges that Respondent violated
Section 8(a)(1) of the National Labor Relations Act
(Act) by granting a wage increase to its employees and
instituting a new improved retirement plan during its em-
ployees union organizational campaign, and Section
8(a)(3) of the Act by discharging its employee Richard
W. Bradchulis. Pursuant to a petition filed in Case 13-
RC-14770 and following investigation to objection to
conduct affecting the results of the election filed by the
Union, the Regional Director for Region 13, ordered a
hearing on those objections and consolidated Cases 13-
CA-17997 and 13-RC-14770 for hearing before an Ad-
ministrative Law Judge. The instant hearing resulted
from that order.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of Gener-
al Counsel, and Respondent.
Upon the entire record, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, Coronet Instructional Media, A Di-
vision of Esquire, Inc., admitted and I find that it is an
employer engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse, Mail Order, Office, Technical and Profes-
sional Employees, Local 743, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is a labor organization
as defined in the Act.
I11. THE ALLEGED UNFAIR LABOR PRACTICES
On May 17, 1978, employees Richard W. Bradchulis
and Kenneth Powell met with Mr. Bonnie Ray Cum-
mings a field representative of the Union, and discussed
how they would go about organizing Respondent's ware-
house employees. Bradchulis and Powell signed union
cards and were given union literature. Thereafter, Brad-
chulis solicited three or four warehouse employees to
sign union cards.
On May 18, 1978, at approximately 3 p.m., Bradchulis
went to the office of his supervisor, Gunther Ries, and
handed Ries literature supplied to Bradchulis by the
Union, which advocated "all the way with Local 743"
and listed several employee benefits. Ries looked at the
literature and responded, "Oh, yeah." At approximately
4:10 p.m. that same afternoon, Ries gave Bradchulis
money for a cab and told Bradchulis to go over to Re-
spondent's facility at 65 East South Water Street and
report to director of manufacturing, fullfillment, and dis-
tribution, Richard Isaacs. Upon reporting to Isaacs,
Bradchulis was given $50 for 6 months perfect attend-
ance and told he was being discharged because Bradchu-
lis was the cause of a "slowup."
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 19, 1978, Respondent received a telegram
from the Union's lawyer demanding recognition as exclu-
sive representative of Respondent's warehouse employ-
ees and alleging that a majority of those employees had
selected the Union as their representative. The telegram
also demanded the immediate reinstatement of Bradchu-
lis. Also on May 19, Respondent called a meeting of ap-
proximately 22 employees including the warehouse em-
ployees, and announced that a salary survey had been
completed. Employees were told at that meeting that
they would be called in individually and told what their
job classifications were and what, if any, pay raises they
would be receiving.
During the May 20 and 21 weekend, Director of Man-
ufacturing Isaacs, who had discharged Bradchulis, "had
a lot of time to think-about the whole situation, and it
bothered (Isaacs) that an employee like Richard Brad-
chulis, who had been with (Respondent) numerous years,
didn't have a record of these kinds of problems until he
was working under Gunther Ries." On the basis of his
weekend thoughts Isaacs recommended, on May 22, that
the real problem was management, and that Bradchulis
should be reinstated and Gunther Ries removed.
On May 22, the Union filed the 13-RC-14770 petition.
On May 23, pursuant to Richard Isaacs' recommenda-
tion, Gunther Ries was transferred to another Esquire
company and was replaced by Jinks Riddle. On May 24,
Jinks Riddle called Bradchulis and asked him to return
to work. In a subsequent meeting Bradchulis agreed and
actually returned to work on May 25.
Bradchulis' return to work was announced to a May
25 meeting of employees by Respondent's president,
Robert Whitworth. In that same meeting Whitworth an-
nounced that everyone was getting a minimum of 10-per-
cent wage increase. Whitworth told the employees that
he was aware that there was some union activities going
on but that the wage survey had been under study for
sometime and he was implementing the results of that
survey. Following the employees meeting Bradchulis and
employees Matt Molda and Mildred ----- met
with Respondent President Whitworth and Vice Presi-
dent Joe Golden. Bradchulis told Whitworth that the
employees wanted a better wage increase than 10 per-
cent and a better retirement plan. Golden stated that
there was a retirement plan in the works and that he felt
the employees would be very happy with it. On that
same day Bradchulis asked Jinks Riddle for the next day
off. Riddle replied that the Company wanted Bradchulis
in the next day to let the employees know they were
keeping their promises by bringing Bradchulis back and
granting the 10-percent wage increase.
During June 1978, Esquire announced a new benefit
pension plan to all its companies except to Modern Cur-
riculum Press in Cleveland and a Canadian unit. The
parties stipulated that the new benefit pension plan was a
substantial improvement for the Coronet Instructional
Media employees.
Pursuant to a Stipulation for Certification Upon Con-
sent Election, an election was held on June 30 under the
direction of the Regional Director for Region 13. In a
unit of approximately 25, 4 votes were cast for, and 15
votes against the Petitioner, and there were 4 challenged
ballots. On July 7, 1978, the Petitioner filed timely objec-
tions. Those objections were stated as:
1. The Employer promised and granted benefits
to employees including, but not limited to, a wage
increase and other monetary benefits in order to dis-
suade the employees from supporting or otherwise
assisting or voting for the Union.
2. The Employer changed working conditions of
employees.
3. The Employer terminated Richard Bradchulis
and later reinstated him with increased benefits so
as to discourage him and other employees from sup-
porting the Union.
4. By these and other acts not specified above,
the Employer, by its supervisors and agents, inter-
fered with the holding of a free and fair election on
June 30, 1978.
Conclusions
A. The Discharge and Reinstatement of Bradchulis
Richard Isaacs testified that problems with Richard
Bradchulis started after Gunther Ries was installed as
Bradchulis' supervisor during four other employees in
the warehouse. Specifically, according to Isaacs, the
problems began with an April 17, 1978, memo to him
from Ries complaining of a poor response from Bradchu-
lis when Ries complained about cigarette butts on the
floor. Isaacs testified he received another Ries memo on
May 10, complaining that Bradchulis was not shipping
orders in accordance with the dates the orders were re-
ceived. Isaacs said he received another Ries memo
around May 12 complaining that Bradchulis had not sup-
plied a completed floor plan on May 10 as per Ries' di-
rections. Isaacs testified he received yet another Ries
memo on May 15. This time Ries complained that Brad-
chulis had failed to let him (Ries) know that employee
Powell did not show up that morning, that no one was
answering the phone after 4 p.m. even though cleanup
time was not until 4:15 and that Bradchulis did not ap-
point anyone to receive during breaks. There is no show-
ing that Bradchulis was aware of any of the above-men-
tioned memos or of the complaints contained therein.
Gunther Ries did not testify.
On May 16, in a meeting with three members of Brad-
chulis' crew, Bradchulis and Ries, Isaacs testified he told
Bradchulis that he was very unhappy with Bradchulis'
work performance and that he had heard from Bradchu-
lis' supervisor that Bradchulis was not following instruc-
tions. Isaacs said he commented that he was concerned
with a backlog of orders and that he would have to do
something about the situation if it was not corrected.'
However, when Isaacs discharged Bradchulis on May
18, he stated Bradchulis was being fired because he was
Isia,.. adnmltld Ihat a correclive ilterview reporl on Bradchulis.
which a.. alleged prepared Following Ihe May 16 meeting. was not
shown lo Bradchuis.
944
CORONET INSTRUCTIONAL MEDIA
the cause of a slow up.2 No evidence was offered to
show that Bradchulis did in fact cause a slow up.
On May 19,3 Isaacs allegedly prepared a memo to per-
sonnel regarding Bradchulis' termination. In that memo
Isaacs stated the following were the causes of Bradchu-
lis' discharge:
Insubordination to his immediate Supervisors-to
perform Group Leader responsibilities in a proper
and professional manner-failure to attempt to cor-
rect greatly decreased productivity over an ex-
tended period of time-demonstrated a poor work
attitude with feelings of resentment against the com-
pany and its management-has contributed to the
demoralization of his subordinates.
Under cross-examination Isaacs responded that he con-
tinued to believe the items specified in his May 19, memo
(above) were true, even though he decided over the
weekend to recommend the rehiring of Bradchulis.
Isaacs did not explain why he recommended the rehiring
of an employee considered by him to be insubordinate,
incompetent, unproductive, demoralizing to subordinates,
and having a poor attitude, other than to say he felt,
upon reconsideration over the weekend, that the proper
action to take was to correct the management.
I am convinced, on the basis of the above facts and the
record as a whole, that Bradchulis was discharged be-
cause of his union activities. In reaching my decision I
was influenced by the following factors.
In the first instance I find the timing of Bradchulis'
discharge is highly suspicious. Admittedly Bradchulis
had been a good employee since 1971. He was promoted
to group leader in March 1978. Following his promotion
he personally received no indication of any disciplinary
action until his May 18 discharge. Approximately 2-1/2
hours before his discharge Bradchulis was asked by his
supervisor to work overtime the following Saturday.
Thereafter Bradchulis presented his supervisor with
union literature. An hour later Bradchulis was told to
report to Richard Isaacs' office where he was dis-
charged.
Secondly, Respondent offered several versions of its
reason(s) for discharging Bradchulis. It is uncontested
that Isaacs told Bradchulis he was discharged because he
was the cause of a slow up. At the hearing, Isaacs point-
ed to a series of memos he allegedly received from Su-
pervisor Gunther Ries, plus the May 16 meeting when
he told Bradchulis that he had heard Bradchulis was not
following instructions. Finally, Isaacs testified that he
prepared the May 19 memo which recited more reasons
for Bradchulis' discharge. Evidence, as here, demonstrat-
ing that Respondent has, at various times, given different
reasons for a discharge, may be used in determining
whether that discharge is violative.4
2 Isaacs did not deny Bradchulis' version of his termination interview
with Isaacs.
3 On this same day. May 19, Isaacs received a telegram from the
Union demanding recognition and asserting that Bradchuhs' discharge
violated the National Labor Relations Act
4 Sam and Margarer Fxodi. Inc. d/h/a Ch/lx Reslaurunt No Seventren.
212 NLRB 423 (1974); Daniel Convtruction Cownpanv. 229 NLRB 9
(1977); Sprngfield Dodge, Inc., 218 NLRH 1429 (1975)
Additionally I have determined that Isaacs' alleged
basis for discharging Bradchulis was a pretext. I find in-
credible Isaacs' testimony that even though he remained
convinced that his May 19 memo outlining the basis for
Bradchulis' discharge was accurate,s he decided to rec-
ommend Bradchulis' reinstatement. Isaacs never success-
fully explained why he recommended Bradchulis' rein-
statement. He did explain that over the weekend he de-
cided management and, in particular Gunther Ries, was
at fault. That, of course, explained why Ries was re-
placed. However, in light of Isaacs' contention that his
May 19 memo was accurate, the basis for Bradchulis' re-
instatement remains a mystery. I am left with no alterna-
tive but to conclude that the basis alleged for Bradchulis'
discharge was pretextuous.
Additionally there was obvious disparity in the dis-
charge of Bradchulis. The record demonstrates several
warehouse employees had been advised of recent disci-
plinary action against them for infractions, such as absen-
teeism, which very likely contributed to the shipment
backlog. However, none of those employees were dis-
charged prior to May 19. Bradchulis, on the other hand,
had a perfect attendance record and had not been ad-
vised of receiving any disciplinary action. 6
Following Bradchulis' reinstatement he was told that
Respondent wanted him to work in order to show the
employees that it was keeping its promises regarding his
reinstatement and the 10-percent pay raise. I find that
statement by supervisor Riddle7 demonstrates Respond-
ent's desire to use the reinstatement of Bradchulis and
the wage increase as tools to improve employee attitude
and remove the potential of unionization.8
B. The Improved Benefits
I. The wage increase
In October 1977, Personnel Manager Beth Bickhard
recommended a 10-percent pay raise for employees.
Management decided that 10 percent was too expensive
and granted a 5-percent raise. However, Bickhard was
directed to conduct a salary survey in anticipation of a
subsequent raise. Over the months following October
1977, Bickhard complied a wage survey using as sources
the U.S. Department of Labor, Chicago Area Wage
s Ni evidence was offered to support any of the allegations in Isaacs'
May 19 memo or the alleged Ries' memos Isaacs' testimony did not
reseal that he personally observed Bradchulis' work Bradchulis immedi-
ate supervisor. Gunther Ries. did not testify
6 I do not credit Respondent's contention that Bradchulis recei',ed a
corrective interview report on May Ih The record demonstrates that dis-
ciplinary action reports, such as ihe alleged May 16 report, are customar-
ily shown to employees No logical explanation was shos ni as to why
Bradchulis was not shown the alleged corrective interview report
7 Respondent's May 18 salary survey submitted by Personnel Manager
Bickhard included a comment, "Blue Cross (in Califirnia) recently ssent
through a major change, at a time when morale was low and unitniza-
lion potential existed Salary survey information was collected. conisul-
tants were hired, and a 'Pay foir Performance Program' was initiated The
result, of the program to date: Morale is good
' Hradchulis testifies that Jenks Riddle asked him to forego his union
actislites on May 24 I generally credit Bradchulis since he impresses me
as a candid wilness I-tosweer. I find the alleged request by Riddle illogi-
cal under the circumstance, I was also impressed slth Riddle's demeia-
nor and I credit Riddlde's denial In this regard
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Survey (May 1976), Secretaries, Inc., Salary/Benefits
Survey (1976-1977), State of illinois Schedule of Salaries
(1977), Interviewing Dynamics Survey (1977), A. Val
Bradley Associates Survey of Publishers (July 1977),
Modern Talking Pictures, Associated Films, Audio
Bantum, Films, Inc., and The Association of Media Pro-
ducers Survey. On May 18, 1978, Bickhard submitted
her completed survey to management. The survey in-
cluded a list of employees by name, job, years service,
current salary, competitors' salary,9 and proposed
range.i° The employees were informed in October 1977,
that Bickhard was compiling information for use in de-
termining future salary increases. Employees were asked
to complete questionnaires regarding job content and
compensation in February 1978.
On May 25, the employees were called into another
meeting. During the meeting Robert Whitworth, presi-
dent of Coronet, informed the warehouse employees that
Bradchulis had been reinstated. Whitworth told the em-
ployees that as a result of the salary survey, everyone
was getting a minimum of 10-percent wage increase.
Whitworth also said he was aware of the employees'
union activities but that the salary survey had been under
study for sometime. "
On the basis of the record as a whole I find that the
salary increase was announced to employees on May 25,
1978, and involved a minimum across-the-board increase
of 10 percent. I am convinced that the increase resulted
from the salary survey which Bickhard conducted from
October 1977 to May 1978. Although that survey pro-
posed a salary range for each job classification and em-
ployees were originally told on May 19 that salaries
were subject to individual adjustments, the evidence does
not demonstrate that the ultimate increase of at least 10
percent for each employee did not logically result from
the salary survey An examination of the survey appears
to justify, within the framework of the proposals, a mini-
mum increase of 10 percent for all the employees. 2
2. The improved pension plan
In July 1977, R. B. Jones Corporation was asked by
Esquire, Inc., Respondent's parent company, to prepare a
retirement system for Esquire covering all of its 12 sub-
sidiaries. At that time the subsidiaries, including Re-
spondent, used some six different employee benefit plans,
two pension plans and four profit-sharing plans. The
plans were different in rates of contributions by the
Company and the rates of benefits that were accrued.
9 Competitors' salary was listed as competitors' average range and in-
cluded, on a job by job basis, what appears to be a range between the
minimum and maximum salaries which competitors pay employees hold-
ing the particular job.
'o Proposed range appeard to include the minimum to maximum rec-
ommended salaries for all employees in the particular job
" Whitworth recalled this meeting occurred on May 19. However, I
credit Bickhard's testimony regarding the May 19 meeting and her ac
count of that meeting convinces me that other testimony placing the 10-
percent announcement on May 25 is accurate. Bickhard was not at the
May 25 meeting but her account of the May 19 meeting did not include
recollection of Whitworth announcing a minimum 10-percent increase.
12 However, I note that in some job classifications the competitor%'
average range does not include a maximum salary for that job. In those
instances the survey does not offer sufficient information to determine
whether a 10-percent increase is justified by the survey
The one Esquire-wide plan was suggested in the hope of
eliminating various administrative problems created by
the numerous plans. Kenneth F. Rogers testified that he
was employed by R. B. Jones Corporation in July 1977,
and he was given the assignment of preparing the retire-
ment system requested by Esquire. Rogers testified that
he spent the 3 or 4 months following July 1977 compil-
ing data from the different Esquire companies in order to
analyze the current plans. Rogers submitted his first pen-
sion report to Esquire on November 16, 1977. However,
according to Rogers, problems including one unit,
Modern Curriculum Press, having a current plan with
higher benefits than the proposed Esquire-wide plan, an-
other unit being in Canada and thereby not fitting within
the framework of the proposed plan, and a suggestion
from a Esquire director that social security be integrated
into the plan, delayed immediate implementation of the
plan. The Esquire board of directors tentatively ap-
proved the plan proposed by Rogers at the end of March
1978. However, employees were not notified of the plans
implementation on April 1, 1978, because various prob-
lems had not been resolved. Those problems included the
Modern Curriculum Press problem mentioned above
which was still unresolved as was the problem with the
Canada unit and the social security integration problem.
Also Esquire had not decided upon an investment
agency. The investment agency, Banker's Life Insurance,
was selected in mid-May 1978.
Rogers testified that Banker's Life worked out the
terms for transferring the various plans' assets, and the
final go ahead to inform employees of the new Esquire-
wide plan was received by him from the Esquire director
in charge of employee benefits, on June 1, 1978. Esquire
asked Rogers to go to its various units and explain the
new plan since they had no one sufficiently knowledge-
able to inform their employees. Rogers then worked out
a schedule with the various units for announcing the
plan. All the units with the exception of Modern Cur-
riculum Press and the Canadian unit received the an-
nouncement from Rogers during June 1978. Respondent
(Coronet) was the fourth unit which Rogers visited and
made the announcement of the improved pension plan.
The announcement to Modern Curriculum Press was de-
layed until the fall of 1978, when the problem of its
higher benefits was resolved. The new plan, described as
a noncontributory pension plan plus a retirement invest-
ment savings plan, represented a significant improvement
over the old plan available to the warehouse employees
of Respondent. During the interim between April 1,
when the new plan started, and its June announcement,
Respondent, like all the other Esquire units, continued to
deduct an amount from each employee's check equal to
employee contributions under the old plan. This was
done to avoid premature disclosure of the new plan.
During June, when the new plan was announced, em-
ployees were told they could have those April-June con-
tributions or, if they desired, that money could be invest-
ed on their behalf in the new investment savings plan.
946
CORONET INSTRUCTIONAL MEDIA
3. Finding re objections' a and alleged 8(a)(l)
violations
As stated in Arrow Elastic Corporation, 230 NLRB 110,
112 (1977):
From a distillation of the decisions evidencing pres-
ent Board policy in this area, it appears that pree-
lection announcements of upward revisions in em-
ployment terms are presumptively unlawful, even if
based on determinations made prior to the advent of
union activity. However, said presumption is rebut-
table. Thus, an employer is free to include such ref-
erences in antiunion propaganda if he can demon-
strate either (1) that such announcements were lim-
ited to terms already integrated into the existing
benefit structure, or (2) at a minimum that the origi-
nal determination to grant the prospective benefit
was followed up and implemented by a sequential
chain of events during the period before any union
activity so as reasonably to dispel notions that the
ultimate implementation was accelerated because of
the union activity, or that employee organization
prompted a revitalization of a since abandoned de-
termination to grant such benefits.
In determining the issues presented by Respondent's
wage increase and improved pension plan, I am mindful
that those devices present two of the most effective an-
tiunion weapons available to management. However, on
the other hand, Respondent, in cases such as this, has an
equal obligation not to withhold added benefits which
the employees would receive but for the union organiz-
ing campaign. (Planters Peanuts, 230 NLRB 1205 (1977);
Schwab Foods Inc., d/b/a Scotts IGA Foodliner, 223
NLRB 394 (1976).
Regarding the wage increases the evidence reflects
that the matter was "followed up and implemented by a
sequential chain of events during the period before any
union activity so as reasonably to dispel notions that the
ultimate implementation was accelerated because of the
union activity" Arrow Elastic Corporation, supra). The
survey was prepared and submitted on May 18. Immedi-
ately thereafter, on May 19, a preliminary announcement
was made to the employees that the survey was com-
plete and a wage increase would be forthcoming. The
final announcement on May 25 was prompt. I am con-
vinced that Respondent had no choice than to follow
through on its planned wage increase. Although I am
convinced that its initial reaction to the union activity
was one of hostility, the prompt final announcement of
the 10-percent increase came only 3 days after the peti-
tion was filed in Case 13-RC-14770, and only 7 days
after the wage survey was submitted. In light of those
facts, plus the uncontroverted evidence that the wage
survey was started in the fall of 1977, 1 find that the
wage increase did not violate Section 8(a)(1) and did not
constitute objectionable conduct.' 4
". In considering the Union's objections, I ha'e considered eents
which I find occurred within the May 22. 1979% to June 30. 197K, critical
period
4 I make this finding despite my determination that Supervisor Rid-
dle's comment. when denying Bradchulis time off. e'idenced a desire to
The improved pension plan also appears to fall within
the Arrow Elastic guidelines since its "announcement was
limited to terms already integrated into the existing bene-
fit structure." However, I find troublesome evidence that
Respondent chose to withhold announcing the new plan
to the Modern Curriculum Press unit. Respondent indi-
cated it withheld announcement to that unit since their
old plan included better benefits than the new plan. Ob-
viously, that action evidences Respondent could have
also withheld announcement to Coronet employees until
after the June 30 election. However, the law does not
appear to require such action from Respondent. The
Board, in Schwab Foods, supra, stated:
Contrary to the Administrative Law Judge, we do
not find the Respondent's announcement of the
availability of certain existing insurance benefits to
be violative of Sec. 8(a)(1). Prohibiting the Re-
spondent from publishing existing benefits-an issue
raised by the Union itself-merely because the em-
ployees had not previously been made aware of
such benefits, would deprive the Respondent of le-
gitimate campaign strategy necessary to counter the
Union's claim that it offers better benefits. [223
NLRB 394, fn. 1.]
No evidence was offered to support any of the other
objections raised by the Union as occurring within the
critical period, except the reinstatement of Richard Brad-
chulis. Although Bradchulis was discharged before the
petition was filed, he was reinstated on May 25, 3 days
into the critical period. The Union's objection alleges his
reinstatement with increased benefits constituted objec-
tionable conduct.
The evidence reflected that Bradchulis was reinstated
with full backpay to this former job. He was not award-
ed any increased benefits other than those received
through the wage increase which was announced on the
day he returned to work. On the basis of the evidence
and in absence of strong Board authority to the contrary,
I am unwilling to find that his reinstatement, which was
in accord with the remedy General Counsel customarily
seeks in discharge cases, constitutes objectionable con-
duct.
For the above reasons I recommend that the objec-
tions be overruled in their entirety and that Case 13-RC-
14770 be severed and remanded to the Regional Director
to issue a certification of the results of the June 30. 1978.
election.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging its employee, Richard W. Bradchu-
lis, because of his activities on behalf of the Union, Re-
spondent violated Section 8(a)(3) of the Act.
use the IO-perccntl inctrese to impronte morale and remove Ihe potleiita
foir unionization (See fn 7, upera )
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondent did not violate the Act by announcing a
wage increase and an improved benefit pension plan
during its employees' union organizing campaign.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(3) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative actions de-
signed to effectuate the policies of the Act. 15
I recommend that the allegations of the complaint that
were not proved be dismissed.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 1
The Respondent, Coronet Instructional Media, A Di-
vision of Esquire, Inc., Chicago, Illinois, its officers,
agents, successors, and assigns, shall:
J5 The remedy does not include the usual 8(a)(3) discharge remedy of
reinstatement with full backpay. General Counsel does not seek that
remedy on evidence that Bradchulis has been reinstated to his former job
with full backpay.
01 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
1. Cease and desist from discharging its employee for
engaging in activities on behalf of Warehouse, Mail
Order, Office, Technical and Professional Employees
Union, Local 743, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization.
2. Take the following affirmative action, which is
found necessary to effectuate the policies of the Act:
(a) Post at its 369-371 West Erie Street, Chicago, Illi-
nois, facility copies of the attached notice marked "Ap-
pendix."'7 Copies of said notices, on forms provided by
the Regional Director for Region 13, after being duly
signed by Respondent's authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
in Sec. 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.
" In the event that the Board's Order is enforced by a Judgment of
the United States Court of Appeals. the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Laobr Relations Board."
948