Idaho Candy Co.

National Labor Relations Board - Board Decisions

Jun 10, 1975

218 N.L.R.B. 352 (N.L.R.B. 1975)

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Idaho Candy Company and Bakery and Confectionery
Workers' International Union of America, Local
No. 393, AFL-CIO. Cases 19-CA-7079 and 19-
RC-7055
June 10, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, 'KENNEDY, AND
PENELLO',
On November 22, 1974, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered' the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings,1 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by
announcing and granting a wage increase prior to the
election, as well as by unlawfully interrogating
employees. We also agree with the Administrative
Law Judge's recommendation that Petitioner's Ob-
jections 1 and 4 be sustained on the basis of the grant
of the wage increase and interrogation of employees
during the critical preelection period. In the circum-
stances, we believe that Respondent's unlawful
conduct precludes the holding of a second election in
which the employees can exercise their free choice,
and consequently, that a bargaining order is warrant-
ed.
Member Kennedy agrees that Respondent acted
unlawfully in interrogating employees and in grant-
ing the general wage increase, and he would set aside
the election conducted herein. However, he does not
believe that a bargaining order is warranted and
takes the occasion to express the view that a secret
ballot election is the preferred method of determin-
ing the employees' desires in the selection of a
bargaining representative.
We do not deny that the election process is
ordinarily regarded as the most reliable means of
determining a majority bargaining representative.
But, if an employer has acted unlawfully to preclude
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions 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,
218 NLRB No. 52
the exercise of a free choice by the election process,
resort to the Board's representation procedures is not
required. This is the teaching of Gissel,2 which
approves the issuance of a bargaining order in
circumstances "where the employees sentiment once
expressed through cards would, on balance, be better
protected by a bargaining order." We believe this to
be such a case.
Member Kennedy does not agree, as he regards the
interrogation, standing alone, as an inadequate basis
for a bargaining order, and the wage increase, he
argues, would have but a minimal impact upon an
election. But a similar argument was made in C & G
Electric, Inc., 180 NLRB 427 (1969), and rejected by
the Board as follows:
However, where, as here, the Employer grants
substantial wage increases to a high percentage of
his employees in violation of Section 8(a)(1) the
employees are not likely to miss the inference that
"the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged." N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405 (1964). We find
that this unlawful conduct was of such a nature as
to have a lingering effect and the use of
traditional remedies was unlikely to insure a fair
or free rerun election.
Subsequent cases are to the same effect .3
Member Kennedy minimizes the impact of the
wage increase in this case by labeling it as a cost-of-
living increase, which was not restricted to unit
personnel, and which was in the same amount for
everyone. But all this is beside the point. These are
matters for consideration in determining whether the
wage increase was unlawfully motivated. But it has
been found, and Member Kennedy concedes, that
the purpose of the increase, although extended to
some nonunit personnel, was to persuade the unit
employees to reject the Union as their bargaining
representative. We are left, then, with a general wage
increase no different in its impact from that present
in other wage increase cases where the Board has
found a lingering effect which impaired the ability of
the employees to express a free choice in another
election. Respondent's announcement and grant of
the wage increase followed its letter sent to all
employees, after the union organizing campaign had
begun, advising them that union representation was
unnecessary.
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
3 See Tower Enterprises, Inc., d/b/a Tower Records, 182 NLRB 382
(1970), and Gruber's Super Market, Inc, 201 NLRB 612 (1973).
IDAHO CANDY COMPANY 353
The employees ' sentiment freely expressed through
cards prior to Respondent 's unlawful conduct now
appears as a more reliable gauge of employee choice
than an election . A card majority having then been
obtained by the Union, the issuance of a bargaining
order becomes appropriate under Gissel.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Idaho Candy Com-
pany, Boise, Idaho, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
MEMBER KENNEDY, dissenting:
I dissent from my colleagues' conclusion that a
Gissel-type bargaining order is warranted. In the
circumstances of this case, a cease-and-desist order
and a rerun election is the appropriate remedy.
The violations found are relatively minor in nature.
Two low-level supervisors violated Section 8(a)(1)
through statements made during conversations with
employees, and Respondent's president, Wakeman,
implemented a previously planned 25-cent cost-of-
living wage increase prior to the election.
Noticeably absent from this record are those more
aggravated violations which tend to have a lasting
impact on employees: discharges of employees for
engaging in union activities; threats to employees of
plant closure if they select a union to represent them;
unlawful support for a favored union; and creation
of an atmosphere of coercion, fear, and intimidation.
Respondent may have overstepped the bounds of
permissible campaign conduct, but these are clearly
not aggravated violations of the Act.
It goes without saying that not all unfair labor
practices committed by an employer in the face of an
organizing drive warrant the imposition of a bargain-
ing order. Both the Board and the courts have been
very careful to differentiate between degrees of an
employer's misconduct in determining whether a
bargaining order is justified. In the Gissel4 decision,
the Supreme Court recognized three categories of
cases: (1) those "exceptional" cases in which an
employer engages in "outrageous" and "pervasive"
unfair labor practices; 5 (2) those marked by "less
pervasive practices which nevertheless still have the
tendency to undermine majority strength and impede
the election process"; 6 and (3) cases involving minor
or, less extensive unfair labor practices having only a
minimal impact on the election machinery.? The
Supreme Court held that only the first two categories
would justify a bargaining order. In my judgment,
this case falls into the third category.
Under existing Board and court precedent, the
8(a)(1) violations committed by the two low-level
supervisors would not, standing alone, be an ade-
quate basis upon which to predicate a bargaining
order.8 The question thus becomes whether the
addition of the wage increase is sufficient to tip the
scales in the other direction. I conclude that this
question must be answered in the negative.
The increase granted was a cost-of-living increase.
It was not limited to unit employees but was offered
to all of Respondent's personnel except for five
commission salesmen and the president of the
Company. The increase was the same for everyone-
25 cents per hour. It is the nature and scope of the
wage increase here which serves to distinguish this
case from those cited by my colleagues .9 The fact
that the unit employees were treated on a par with
everyone else in the plant will, in my judgment,
prevent the creation of any "lingering effect" which
might now impede the election process.10
Since the unfair labor practices found to exist in
this case may be adequately remedied through a
traditional order and are not so coercive or lasting as
to impair the holding of a rerun election, I would
direct such an election to let the employees decide
whether they want a union, rather than force a
bargaining representative upon them. I am and
always have been of the view that a secret ballot
election is the preferred route to determine the
employees' desires in the selection of a bargaining
representative.
Accordingly, I dissent from my colleagues' is-
suance of a bargaining order.
4 N.L.RB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
5 Id at 613.
6 Id at 614.
4 Id at 615.
8 Cf. Hennessy Service Corporation, 204 NLRB 266 (1973).
9 I did not participate in any of the cases relied upon by the majority.
10 Contrary to my colleagues, I find such considerations to be very much
on point and not at all directed at the question of motivation. They are
directly related to the primary issue before us-namely, whether a free and
fair election can now be conducted.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. RoBBINS, Administrative Law Judge:
This case was heard before me in Boise, Idaho, on August
27 and 28, 1974. The charge in Case 19-CA-7079 was filed
by Bakery and Confectionery Workers' International
Union of America, Local No. 393, AFL-CIO, on May 13,
1974, and amended on June 21, 1974. Copies of said charge
and amended charge were served on Respondent on the
respective filing dates. The complaint, which issued on July
2, 1974, and was amended on August 12, 1974, alleges that
Respondent violated Section 8(a)(1) of the National Labor
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, The petition in Case 19-RC-
7055 was filed by the Union on March 26, 1974. Pursuant
to a Stipulation for Certification Upon Consent Election
approved on April 12, 1974, an election by secret ballot
was conducted on May 8, 1974, which resulted in 17 ballots
for and 17 against the Union, with I challenged ballot cast
by Irene Mann which is sufficient to affect the results of
the election. On May 13 and 15, 1974, the Union filed
timely objections to the election, copies of which were duly
served on Respondent. On July 2, 1974, the Acting
Regional Director determined that certain of said objec-
tions raised matters, some of which were identical to that
alleged as unfair labor practices in Case 19-CA-7079,
which could best be resolved through a hearing and
ordered that Case 19-RC-7055 be consolidated for
purposes of hearing with Case 19-CA-7079. The basic
issue herein is whether certain conduct of Respondent is
sufficient to warrant setting aside the election and if so,
whether Respondent engaged in acts of interference,
restraint, and coercion of such serious and substantial
character and effect as to render the conduct of a free, fair
rerun representation election doubtful or impossible,
requiring the issuance of a bargaining order. Also at issue
is the supervisory status of Irene Mann.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and by Respondent,
I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Idaho corporation with a place of
business in Boise, Idaho, where it is engaged in the
manufacture and wholesaling of candy and related
confectionery items. During the year preceding the
issuance of the complaint herein, Respondent in the course
and conduct of its business operations has sold and
shipped products valued in excess of $50,000 directly to
purchasers located outside the State of Idaho; and during
that same period of time purchased and received goods
valued in excess of $50,000 directly from vendors located
outside the State of Idaho.
The complaint alleges, Respondent admits, and I find
that Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I fmd
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACITCES AND TILE
REPRESENTATION PROCEEDINGS
A. The Union's Organizational Campaign and
Demand for Recognition
In mid-February 1974,1 the Union began to organize
Respondent's production, maintenance, warehouse, and
driver employees. On February 26 Respondent received a
letter from the Union stating that said organizational
campaign had commenced. On March 12, Respondent sent
letters to all employees expressing its belief that union
representation was unnecessary.
On March 25, Union Representatives Andrew Jordan
and Robert McIntosh told Respondent's president, Donald
Wakeman, that the Union represented a majority of
Respondent's production, maintenance, warehouse, and
driver employees and demanded recognition as the
exclusive collective-bargaining representative of said em-
ployees. Wakeman refused, stating that representation
questions should be determined by the National Labor
Relations Board. Whereupon McIntosh gave Wakeman a
letter which repeated the demand and set forth the
requested unit. Later that same day, Respondent sent the
Union a letter claiming a good-faith doubt of the Union's
majority status and again refusing to recognize the Union.
On March 26, the Union filed a petition for an election in
Case 19-RC-7055.
B. The Wage Increase
On March 22, Respondent posted a notice on the
bulletin board in both the factory and the warehouse
announcing that employees would receive a wage increase
effective April 1. On that same day, by letter, Respondent
notified the Union of the impending wage increase. On
April 1, Respondent granted a 25-cent-an-hour wage
increase to all its employees. Respondent contends that the
wage increase was not granted in order to dissuade its
employees from securing union representation. Rather,
according to Wakeman, he had been considering granting
such an increase for some time prior to the advent of the
Union but had been concerned that Respondent could not
afford an increase in view of the rising cost of raw material
and the inability to increase the selling price of Respon-
dent's principal product - a 10-cent candy bar. Wakeman
testified that, for competitive reasons, small candy manu-
facturers2 are forced to follow the lead of major manufac-
turers as to pricing. He further testified that some of the
major manufacturers of candy bars began changing from a
10-cent bar to a 15-cent bar around the beginning of 1974
and, at a convention of candy manufacturers held on
February 22 through 26, he learned that there was no
appreciable consumer resistance to the increase in price.
He therefore decided to make a complete changeover to a
15-cent bar, thus placing Respondent in a position to grant
a wage increase. Wakeman admits, however, that in fact,
Respondent's changeover began in January when it ceased
selling the 10-cent bar in Utah. In early February,
Respondent's changeover to the 15-cent bar was completed
1 Unless otherwise indicated, all dates herein are in 1974. Utah, Montana , Washington , Oregon, and States surrounding Idaho.
2 Respondent's market is regional - the Western States, principally
IDAHO CANDY COMPANY
in Colorado , Wyoming , and Montana , followed shortly by
Washington and Oregon, and Respondent ceased all sales
of 10-cent candy bars on May 29 . Wakeman further admits
that the decision to grant the wage increase was not made
until March 22. He contends that , since he had not heard
from the Union since February 26, he decided that he
should not delay putting the wage increase into effect.
However, he admits that he thought the Union was still
attempting to organize the employees.
Where, as here, wage increases are granted shortly after
the filing of a representation petition, there is a presump-
tion of impropriety which can be rebutted only by an
affirmative showing that the granting of the benefit was
governed by factors other than the impending election.
Northwest Engineering Company, 148 NLRB 1136, 1145
(1964); Glosser Bros., Inc., 120 NLRB 965 (1958); Interna-
tional Shoe Company, 123 NLRB 682 (1959). Respondent
has not met this burden . The record establishes that
Respondent had never before ' granted a general wage
increase and Wakeman's contention that the timing of the
announcement and granting of the increase was motivated
by legitimate business considerations does not withstand
scrutiny . As indicated above , the essence of Respondent's
argument is that wage increases were under consideration
prior to the advent of the Union but that it was
economically infeasible until a major industry shift to a 15-
cent candy bar occurred . However , this industry shift
occurred in January and Respondent immediately began
its own changeover to the higher priced bar . Yet Respon-
dent did not immediately grant a wage increase nor did it
announce to its employees that a general wage increase
would be tied to the price increase . In fact, there is nothing
in the record to indicate that Wakeman informed anyone
that he was considering a general wage increase. Further-
more , he admits that he did not actually make the decision
until March 22. It would seem that if the price increase was
the decisive factor in the decision to grant a wage increase
then the wage increase would have been given either in
January when the changeover began or , if Respondent was
cautious, in February when consumer acceptance became
apparent or in May when the changeover was complete.
Since Respondent did not wait for the completion of the
changeover, then there is no adequate explanation for the
delay in granting the wage increase. Wakeman's contention
that he was waiting to obtain information regarding
consumer acceptance at the candy manufacturers conven-
tion is not persuasive . Respondent had enough information
regarding consumer acceptance to completely switch, prior
to the convention , to the 15-cent bar in its area of heaviest
sales . Similarly unconvincing is the contention that
Respondent waited a month and, hearing nothing from the
Union , assumed that the organizational efforts had been
unsuccessful and therefore proceeded to announce and put
into effect the wage increase . Wakeman admits that he
thought the Union was still actively engaged in organizing
Respondent's employees . In all of the circumstances, I am
convinced, and I find, that the announcement and grant of
the April 1 general wage increase were timed to induce
Respondent's employees to reject the Union and were
violative of Section 8(a)(1) of the Act. N.L.R.B. v.
355
Exchange Parts Co., 375 U.S. 405 (1964); Bechtel Corpora-
tion, 200 NLRB 975 (1972).
C. Interrogation and Other Acts of Interference,
Restraint, and Coercion
1. By Irene Mann
The initial consideration as to the complaint allegations
regarding Irene Mann is a determination as to her
supervisory status. Respondent contends that she possesses
no indicia of supervisory authority and that therefore
Respondent cannot be held responsible for any interroga-
tion attributable to her . On the other hand , General
Counsel contends that she is a supervisor. The record
supports General Counsel's position.
Section 2(11) of the Act defines supervisors as:
... any individual having the authority, in the
interest of the employer, to hire, transfer, suspend,
layoff, recall, promote , discharge, assign , reward or
discipline other employees , or responsibly to direct
them, or to adjust their grievances , or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
Possession of either of these indicia is sufficient to establish
supervisory status, and the evidence demonstrates that
Mann possessed several - most particularly the ability to
discipline, assign, and responsibly direct employees in their
work, and to hire employees or effectively recommend
same . Thus, Mann assigns work tasks to each employee
throughout the day and, upon completion of an assigned
task, an employee is required to report to Mann for a new
assignment. New employees are oriented and trained by
Mann. She reprimands and criticizes employees regarding
their work performance. She grants employees time off.
She changes employees ' lunch periods . She makes recom-
mendations as to wage increases which are followed. She is
a conduit through which employees request wage increases,
and new employees are hired upon her determination that
they are needed.
Further indicia of supervisory authority is the fact that
she has a telephone and a desk at which she spends a
considerable amount of time . The only other person in
production with such is the plant manager . Mann does not
regularly work on the production line. She is salaried, other
production and maintenance employees are paid hourly.
She receives sick leave benefits, other production and
maintenance employees do not . Mann does not receive a
Christmas bonus , other production and maintenance
employees do. Mann does not punch a timecard, other
production and maintenance employees do.
All of the above factors are undisputed . At dispute is
whether she has authority to hire employees. Wakeman
contends that she does not. He testified that a job applicant
first fills out an application blank and then Wakeman
interviews them. If he feels the applicant is qualified, and
there is a job opening or an anticipated one, he takes the
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicant over to Mann or Plant Manager Helmut Walter
Gericke.3 According to him, in most instances the
applicant is hired prior to the introduction to Gericke or
Mann. The only exception is when several openings are
anticipated within a few days. In those instances, he
asserts, he approves their hire prior to the interview with
Gericke or Mann and the subsequent telephone can to
instruct an applicant to report to work is routine requiring
no independent judgment. However, several employee
witnesses credibly testified to the contrary. Thus Bedard
stated that when she sought reemployment with Respon-
dent she telephoned Mann, asked her for a job, and Mann
immediately told her that she could report to work the next
morning.
Betty Losh described the procedure by which she was
hired in this manner. She filled out an application which
she gave to an office clerical. The next day Wakeman
telephoned her to come in for an interview, which she did.
After Wakeman talked to her, he told Losh he would take
her over to the plant and introduce her to the floorlady.
Wakeman escorted her to Mann and then left. Wakeman
did not tell her when to come to work or that she was hired.
Mann interviewed her, asked how many children she had,
and if her children would interfere with her being available
for work every day. Losh said her children were at an age
where they would be no problem. Mama told her she could
report to work the following week. Margaret Ditch testified
that after she filled out an application she talked to
Wakeman. He looked over her application and told her she
would have to see Irene Mann because she was the one
who would do the hiring. Wakeman introduced her to
Mann . Mann looked over her application and asked if she
was quick with her'hands. Ditch answered that she thought
she was . According to Ditch , Mann may have asked her
another question. Then she hired Ditch and told her to
start to work that same day.
Mann does not specifically deny any of these accounts
that she hired these three employees. Rather, she testified
that Wakeman did all the hiring and when he brought
someone over to introduce to her, that person had already
been hired, that she merely tells them what they have to do,
the clothes to wear, the working hours, and the lunch
hours. However, on cross-examination, Mann admitted
that prior to the trial she had told counsel for the General
Counsel that Wakeman brings applicants to her but does
not tell her whether to hire them and she decides, on her
own, whether to hire the applicant. She also told him that
in some instances when she did not hire the applicant she
kept the application on file and sometimes called the
applicant at a later date, when she decided she needed her,
to report to work. In addition to admitting that she made
these statements , Mann also testified that the statements
were true.
It is obvious, from the -testimony, that Wakeman's
function in the hiring process is a screening one and that
the ultimate decision to hire is made by Mann or Gericke.
It is also apparent that the insistence by Respondent's
witnesses that Wakeman does all of the hiring was
calculated to influence the determination of Mann' s status
and does not accord with the facts as demonstrated by
3 G.ncke testified that male applicants are brought to him and female
applicants to Mann.
Mann's admissions. Furthermore, Gericke's testimony also
indicates the unreliability of such assertions. Thus, he too
testified that Wakeman does the hiring but when ques-
tioned as to the specific hiring procedure, he stated that
Wakeman brings an applicant over to Gericke or Mann
with the application blank, then Gericke or Mann, as the
case may be, decides whether to hire the applicant. In these
circumstances, I find that Mann possesses, and exercises,
the authority to hire employees. Since the record establish-
es that Mann possesses several indicia of supervisory
authority, I find that she is a supervisor within the meaning
of Section 2(11) of the Act and that any acts of
interference, restraint, and coercion committed by her are
attributable to Respondent. The Broyhill Company, 210
NLRB 288 (1974).
Testimony was adduced from several employee-witness-
es, whom I credit, concerning interrogation by Mann.
Emma Bedard testified that around February 20, a couple
of days before she signed a union authorization card,
Mann told her she had received a letter from the Union
and asked her what she thought about the Union coming
in. Bedard said she didn't know because she had never
heard from the Union. Wanda White testified that, in
March after the announcement of the wage increase was
posted, Mann asked her, "Have you heard about the
Union coming in?" When White replied, "Yes," Mann
asked, "Are you in favor of it?" White replied that she
would rather not say. A few days later Mann again asked
White, "Well, what's your opinion of the Union?" White
again answered that she would rather not say. Christina
Winston testified that in March, 2 or 3 weeks after her
February 25 signing of an authorization card, Mann
inquired if she had heard any more from the Union.
Valerie Ham testified that, about a week after her February
28 signing of an authorization card, Mann asked her if she
had received any literature from the Union or if the Union
had been in touch with her. A week or two later, Mann
again asked Ham if she had received anything from the
Union or if the Union had contacted her.
The next spate of interrogation by Mann occurred in
May during the week preceding the May 8 election. On
May 2, Mann told Bedard she had heard that there would
be a union meeting that night. When Bedard answered
affirmatively, Mann asked if she was going to attend.
Bedard replied yes, and Mann said you have every right to
go. The next morning, in the presence of employee Violet
Brewer, Mann asked Bedard if she had attended the union
meeting on the preceding evening. Bedard said that she
had. Mann asked what Bedard thought about it. Bedard
replied that she didn't find out anything "because it wasn't
up to them, it was up to the employees what they wanted."
Margaret Ditch also testified that Mann questioned her
regarding the May 2 union meeting. According to her, on
May 3, Mann asked her if she attended the union meeting.
Ditch said she had. Mann asked who else attended.' Ditch
replied, some of the girls and the guys. Mann inquired if
any questions were asked. Ditch said some of the girls had
asked questions.
Valerie Ham was also interrogated regarding the May 2
meeting. According to her, on May 3, in the' presence of
IDAHO CANDY COMPANY 357
employee Tanna Green, Mann asked if she had attended
the meeting. Ham said, yes. Mann said, "A bunch of
malarkey, huh?" Ham didn't answer. Mann asked if most
of the girls were "going union." Ham replied that she had
no idea. Mann asked, "Do you think Maggie Matthews
and Barbara McGrath are for it." Again, Ham replied that
she had no idea. Ham later reported this conversation to
Matthews and McGrath. Winston, White, and Ditch also
testified that they told fellow employees about their
conversations with Mann.
Mann denied asking any employees about receiving
literature from the Union, or if they were going to attend a
union meeting or if they found out anything at the union
meeting. She did not deny asking any employee what they
thought about the Union, if they were in favor of the
Union, or if they had heard about the Union. Her denials
as to conversations with specific employees were in answer
to very narrowly phrased leading questions. Thus, she
answered negatively to questions phrased in terms of
whether she met with Bedard, Ditch, White, or Ham for
the purposes of discussing the Union and whether she
sought them out for such purpose or whether they sought
her out to ask her questions regarding the Union. Her
testimony generally was vague and contradictory and, as
indicated above, generally incredible. On the other hand,
Ditch, Bedard, Winston, Ham, and White all impressed me
as being honest and forthright in their testimony with
regard to these conversations. Furthermore, their testimo-
ny tended to be mutually corroborative. I therefore fmd
that Mann interrogated employees as set forth above and
that such interrogation, without legitimate purpose and
unaccompanied by assurances against reprisal, constituted
interferences and coercion in violation of Section 8(a)(1) of
the Act. The Goodyear Tire & Rubber Co., 195 NLRB 33, 35
(1972); Engineered Steel Products, Inc., 188 NLRB 298
(1971).
2. By Helmut Walter Gericke
Katherine Barnes testified that, when she was hired in
January, Mann told her she would receive a raise in about
a month and that after about a month Barnes should
remind her about the raise. After working for approximate-
ly 5 weeks, Barnes did remind Mann. Mann said she would
see that Barnes received the raise. About 2 weeks later,
around the first of March, Mann told Barnes her raise
would be postponed. Shortly thereafter Gericke also told
Barnes that her raise would be postponed. Barnes asked if
it was because of the Union and Gericke replied that the
Union would consider it as a bribe. Gericke testified that
Wakeman told him that no one could receive a raise until
the election was settled with the Union and that he
transmitted this information to Barnes. He did not
specifically state what he told Barnes and did not deny her
version of the conversation. In these circumstances, I credit
Barnes' account of the conversation. It is undisputed that
Barnes was promised the raise prior to the advent of the
Union. In fact, Respondent's wage pattern seems to have
been to grant a wage increase after the first month of
employment. Therefore, there was no legitimate reason not
to grant the wage increase. In these circumstances
Gericke's statement indicated that the advent of the Union
was the sole reason for, refusing to grant Barnes a raise and
that Barnes was being penalized because of the Union's
organizational activities and thus, constituted interference,
restraint, and coercion in violation of Section 8(a)(1) of the
Act. Goodyear Tire & Rubber Co., 170 NLRB 539, 547
(1968).
Valerie Ham testified that in March shortly after the
announcement of the wage increase was posted she and
employees Ivanna Howard and Tanna Green had a
conversation with Gericke. Green asked if the wage
increase would be on the next paycheck. Gericke said he
didn't know, that if the Union did come in they probably
wouldn't get the wage increase. In response to leading
questions, Gericke generally denied telling employees that
there would be no further wage increases if the Union got
in but was not questioned as to the specific conversation
related by Ham, and he does not deny that such a
conversation occurred. Furthermore, Gericke's denial is in
broader terms than the statement alleged to have been
made by him and, as indicated above, Gericke's specific
accounts of incidents do not always accord with his
conclusionary statements. On the other hand, Ham gave a
specific account of the conversation and I found her to be
an honest and forthright witness whom I credit. I therefore
fmd that Gericke told employees that, if the Union got in,
they probably wouldn't get the promised wage increase. It
is well settled that threats to restrict employee benefits as a
result of union organization inhibits employees in their
exercise of the rights guaranteed by Section 7 of the Act
and are therefore violative of Section 8(a)(1) of the Act.
N.LRB. v. Gissel Packing Co., Inc., 395 U.S. 575, 618
(1969); Tamper, Inc., 207 NLRB 907 (1973).
D. The Union 's Majority Status and the Refusal
To Bargain
It is undisputed and I find that the appropriate unit is:
All production , maintenance, warehouse and driver
employees employed by the Employer at its Boise,
Idaho operation, excluding office clerical workers,
salesmen, guards and supervisors as defined in the Act.
General Counsel contends that on March 25 , the date of
the demand for recognition , there were 43 employees in the
unit found appropriate . Respondent agrees that these 43
employees were in the unit but contends that Irene Mann
and Richard Allen Wakeman should also be included in
the unit . Since I have found Irene Mann to be a supervisor
within the meaning of Section 2(11) of the Act, she is
excluded from the unit. As to Richard Allen Wakeman, he
should be excluded from the unit on either of two bases.
One, the record is clear that he is a college student who
works for Respondent off and on only during school
vacation periods. As of March 25, he was working during
his school's spring 'break. De Luca Brothers, Inc., 201
NLRB 327, 330 (1973). Two, he is the son of Donald
Wakeman who is president of Respondent and owns 50
percent of Respondent's stock. The remaining 50 percent
of the stock is owned by one person who does not actively
participate in the management of Respondent. As the son
of a principal holding 50 percent of the stock in a closely
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held corporation, he should be excluded from the unit.
Cerni Motor Sales, Inc., 201 NLRB 918 (1973).
The record establishes that as of March 25 the Union
had authorization cards from 24 of the 43 employees.
Respondent does not dispute and I find that these were
valid authorization cards. Accordingly, I find that on
March 25, and continuing thereafter, the Union represent-
ed a majority of Respondent's employees in a unit
appropriate for purposes of collective bargaining.
For the reason set forth in Steel Fab, Inc., 212 NLRB 363
(1974), I do not find that Respondent violated Section
8(a)(5) of the Act.
E. The Objections and Challenges
The sole challenged ballot was that of Irene Mann. As I
have found that Mann is a supervisor within the meaning
of Section 2(11) of the Act, I shall recommend that the
challenge to her ballot be sustained.
As set forth above, the Union filed timely objections to
the election. These objections are as follows:
1. Employees were questioned by their supervisor,
Irene Mann, as to their union activities.
2. On May 6, 1974, at a meeting of the employees,
Respondent's President, Wakeman, stated that if the
Union won the election there would be no further wage
increases or benefits given.
3. At that meeting on May 6, 1974, Wakeman
stated that Respondent's profit-sharing program for
certain employees would be discontinued in the event
the Union won the election.
4. About March 25, 1974, after learning of the
Union's organizing campaign, the Employer an-
nounced a wage increase to be granted all its
employees. The Employer then granted a wage increase
of 25 cents per hour to all its employees effective about
April 1, 1974.
The critical period is from March 26, the date the petition
was filed, to May 8, the date of the election. The Ideal
Electric and Manufacturing Company, 134 NLRB 1275
(1961).
Objections 1 and 4 are based on the same conduct which
I have heretofore found to be unfair labor practices.
However, certain of this conduct-specifically the an-
nouncement of the wage increase-occurred outside the
critical period and objections based on such conduct
cannot be sustained. Also, I find it impossible from the
record to determine whether the Mann-White March
conversations occurred before or after the commencement
of the critical period and accordingly no objections can be
sustained on that basis. However, the granting of the wage
increase and the other interrogations by Mann heretofore
found to be violative of Section 8(a)(1) of the Act occurred
within the critical period and accordingly I shall recom-
mend that Objections 1 and 4 be sustained.
Objections 2 and 3 allege that, at a May 6 meeting of
employees, Wakeman stated that if the Union won the
election the Respondent's profit-sharing program for
certain employees would be discontinued (Objection 3)
and there would be no further wage increases or benefits
given (Objection 2). The only witness who testified in
support thereof was Margaret Ditch. Although five
employees, including Ditch, who were in Respondent's
employ at the time of the meeting testified in support of the
complaint allegations, the Union questioned only Ditch as
to the May 6 meeting. Ditch testified that Wakeman stated
that there would be no more profit sharing when the Union
got in and that he further stated that if the Union got in,
which he didn't believe it would, there would be no more
wage increases if he could help it.
Wakeman denies, making such statement as to wage
increases and Respondent adduced testimony from six
employees, none of whom could recall any such statement
being made at the meeting. As to the profit-sharing plan,
Wakeman denies making the specific alleged statement.
However, he testified that he did read the section of the
profit-sharing plan relating to the effect of a union
agreement on the plan. All employee witnesses, including
Ditch, who testified as to the meeting, stated that
Wakeman did read something concerning the profit-
sharing plan from a document. The section in question
provides merely that should a union-negotiated profit-
sharing plan be put into effect, employees covered by the
union plan would cease to be eligible for allocation of any
part of the contribution of the employer to the fund,4 but
such an employee's entitlement to benefits under the plan
would be in no other manner affected. Under all of the
circumstances, I find that the evidence is insufficient to
establish that Respondent engaged in objectionable con-
duct as alleged in Objections 2 and 3 and" accordingly I
shall recommend that Objections 2 and 3 be overruled.
Inasmuch as I have found certain of the conduct
described in Objections I and 4 to constitute unfair labor
practices which occurred within the critical period and to
have been reasonably calculated to undermine the employ-
ees' adherence to the Union, I conclude that such conduct
must have reasonably affected the results of the election. I
therefore recommend that the results of the election held
on May 8, 1974, be set aside. Due to my further finding
that Respondent's conduct has undermined the Union's
majority and rendered doubtful, or impossible the holding
of a free and fair rerun election, requiring a bargaining
order remedy, I further recommend that the representation
petition herein in Case 19-RC-7055 be dismissed.
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
meaning of Section 2(5) of the Act.
3. Respondent has interfered with , restrained, and
coerced employees in violation of Section 8(a)(1) of the Act
by interrogating employees regarding their union activities
and sympathies and the union activities and sympathies of
their fellow employees; by telling an employee that the
employee would not receive a promised or scheduled wage
increase because the Union would consider it a bribe; by
telling employees that an announced general wage increase
4 The profit-shanng plan now m effect.
IDAHO CANDY COMPANY
would probably not be granted if the employees selected
the Union as their collective-bargaining representative;
and by announcing, and granting, a general wage increase
in order to induce employees to reject the Union as their
collective-bargaining representative.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. On March 25, 1974, the Union was designated as the
majority representative for purposes of collective bargain-
ing of Respondent's employees in the unit described as
follows:
All production, maintenance , warehouse and driver
employees employed by the Employer at its Boise,
Idaho operation ; excluding all office clerical workers,
salesmen, guards and supervisors as defined in the Act.
The aforesaid unit is a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
6. By the unfair labor practices found to have been
committed, Respondent has undermined the Union's
majority and the likelihood of the conduct of a free and
fair rerun representation' election has been impaired.
7. Respondent has not violated the Act in certain
respects as set forth above.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act. Since I
have found that Respondent's violations of Section 8(a)(1)
of the Act have undermined the Union's majority and
rendered doubtful or impossible the holding of a free and
fair rerun election, I recommend that Respondent be
ordered to recognize and bargain with the Union as the
exclusive bargaining representative of its employees in the
unit found appropriate, and upon request embody in a
signed agreement any understanding reached. N.L.RB. v.
Gissel Packing Company, Inc., 395 U. S. 575 (1969). In
evaluating the seriousness of unfair labor practices in terms
of their lingering effect upon the possibility of holding a
free and fair election, the Board has held that the grant of a
general wage increase, even in the absence of any other
unfair labor practices, would have such an impact on
employees that the use of traditional remedies would be
unlikely to erase its effects and ensure a fair rerun election
and employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order. C & G Electric, Inc., 180 NLRB 427 (1969); Tower
Enterprises, Inc., 182 NLRB 382 (1970); Gruber's Super
Market, Inc., 201 NLRB 612 (1973).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the National Labor
5 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 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.
359
Relations Act as amended, I hereby recommend the
following:
ORDERS
Respondent, Idaho Candy Company, Boise, Idaho, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that they will not receive a
previously announced general wage increase if they select
Bakery and Confectionery Workers' International Union
of America, Local No. 393, AFL-CIO, as their collective-
bargaining representative.
(b) Telling its employees that they will not receive
previously promised or scheduled individual wage increas-
es because the Union would consider it a bribe.
(c) Coercively interrogating its employees regarding, their
union activities and sympathies and the union activities
and sympathies of fellow employees.
(d) Announcing, and granting, wage, increases to its
employees in order to induce them to reject the Union as
their collective-bargaining representative.
(e) In any related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively with
Bakery and Confectionery Workers' International Union
of America, Local No. 393, AFL-CIO, as the exclusive
representative of the employees in the following appropri-
ate unit, and, upon request, embody in a signed agreement
any understanding reached:
All production, maintenance, warehouse and driver
employees employed by the Employer at its Boise,
Idaho operations; excluding office clerical workers,
salesmen, guards and supervisors as defined in the Act.
(b) Post at its place of business in Boise, Idaho, copies of
the attached notice marked "Appendix."6 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by the Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ORDERED that all allegations of the complaint which
have not been sustained be dismissed.
6 In the event that the Board 's Order is enforced by a Judgment of a
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 Labor Relations Board."
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the election held on May 8,
1974, be set aside and the petition in Case 19-RC-7055 be,
and it hereby is, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present their evidence, it has been found that we violated
the National Labor Relations Act, and we have been
ordered to post this notice and we intend to carry out the
order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain fromany and all these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT- announce, or grant, to our employees
wage increases in order to-induce them to reject Bakery
and Confectionery Workers' International Union of
America, Local No. 393, AFL-CIO, or any other labor
organization as their collective-bargaining representa-
tive.
WE WILL NOT coercively interrogate our employees
regarding their union activities and sympathies, or the
union activities and sympathies of their fellow employ-
ees.
WE WILL NOT tell our employees that they will not
receive a previously announced general wage increase if
they select said union, or any other labor organization,
as their collective-bargaining representative.
WE WILL NOT tell our employees that they will not
receive previously promised, or scheduled, individual
wage increases because said union would consider it a
bribe.
WE WILL, upon request, recognize and bargain with
said Union as the exclusive representative of our
employees in the appropriate bargaining unit composed
of all production, maintenance, warehouse and driver
employees employed at our Boise, Idaho, operations;
excluding office clerical workers, salesmen, guards, and
supervisors as defined in the Act, and embody in a
signed agreement any understanding reached.
IDAHO CANDY COMPANY