Radio Broadcasting Co.Download PDFNational Labor Relations Board - Board DecisionsDec 18, 1985277 N.L.R.B. 1112 (N.L.R.B. 1985) Copy Citation 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Radio Broadcasting Co. and Teamsters Local No. 115, a/w International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America . Cases 4-CA-12342, 4-CA-12399, 4-CA-12553, and 4-RC-14809 18 December 1985 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 20 September 1982 Administrative Law Judge Marvin Roth issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party and the General Counsel each filed cross-exceptions and supporting briefs, and Respondent filed a response to the cross-excep- tions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions,2 as modified, and to adopt the recom- mended Order3 as modified. The judge found that the Respondent violated 8(a)(1) of the Act in several respects. We agree with many of the 8(a)(1) findings. However, for the reasons set forth below, we reverse the judge's findings concerning two incidents. We further dis- agree with the judge that a remedial bargaining order is appropriate in this case. On 7 August 19814 officials of the Union pre- sented the Respondent's president, William Gross, with a letter claiming majority status5 and request- ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings 2 In sec 2 "Concluding Findings" of his decision, the judge refers to the solicitation of "benefits " We correct this to read as the solicitation of "grievances " 3 Respondent's request for oral argument is denied as, in our opinion, the record in this case, including the exceptions and briefs, adequately presents the issues 4 All dates are in 1981 unless otherwise specified 5 Chairman Dotson notes that the Respondent argues that the signed authorization cards were not valid for representational purposes Claim- ing that union officials told employees before cards were signed that "employees did not have to belong to the union, they could get their cards back, and that they could get benefits even if they did not sign a card," the Respondent argues that the cards were "tainted" and not valid because employees were induced to sign the cards based on the Union's misrepresentation Since Chairman Dotson would not find that a bargain- ing order is warranted in this case, he finds it unnecessary to pass on the issue of the validity of the authorization cards ing recognition and bargaining. Later that day, the Union filed an election petition. On 12 August Gross met with four employees and the Respond- ent's general manager. In this meeting, Gross asked the employees why they had gone to the Union. The employees presented their grievances and sug- gestions. The Union lost the 3 September election 12 votes to 22. There were four challenged ballots. The judge found, and we agree, that, between the filing of the petition on 7 August and the elec- tion on 3 September, the Respondent unlawfully solicited grievances, promised to grant employees three paid personal holidays, promised to increase vacation benefits,6 promised and granted expanded sick leave benefits, promised to recognize and deal with an employee grievance committee,' and promised to remedy and did remedy employee grievances concerning the timely receipt of pay- checks and the limiting of lunch periods to one-half hour. The judge also found that the Respondent ex- pressly promised merit and cost-of-living wage in- creases. At the 12 August meeting, when one em- ployee raised the issue of merit and cost-of-living wage increases, Gross responded that it was a good idea but he could not promise anything at that time. The judge found that when coupled with the fact that nearly every hourly rated employee in the unit received a wage increase effective 28 Decem- ber, Gross' statement was an unlawful promise of a wage increase. We do not agree. Gross' general remark that a wage increase was a good idea fol- lowed by the statement that he could not promise 8 Chairman Dotson would not find that the Respondent promised to grant employees increased vacation benefits He notes that in late July, prior to the filing of the petition, employees were notified in writing that after 3 years of service they would be entitled to a 2-week paid vacation Employee Helen Townsend testified that at the 12 August meeting, Wil- liam Gross said he thought 2 weeks of vacation for employees with 1 to 3 years of service and 3 weeks after 3 years of service was a good vaca- tion policy Employee Jody March testified that Gross proposed a I- week vacation for employees with 1 year of service, 2 weeks of vacation for 2 years of service, and 3 weeks of vacation for 3 years of service In light of the significant differences between Towsend's and March's testi- mony concerning the details of any vacation proposal and absent evi- dence that the Respondent actually granted vacation benefits more favor- able than those announced in late July, Chairman Dotson would not find that the General Counsel established that the Respondent promised in- creased vacation benefits ' Chairman Dotson would not find that the Respondent unlawfully promised to recognize and deal with an employee grievance committee if the Union lost the election He notes that President Gross rejected a pro- posal that a committee be formed to participate to employee evaluations and that Manager Wallace stated that he could not do anything about an employee grievance committee because "their hands [were] tied " More- over, none of the employees present at the 12 August meeting testified that Wallace or Gross made any promise to deal with a grievance com- mittee In finding that the General Counsel has not shown that the Re- spondent unlawfully agreed to recognize and deal with an employee grievance committee, Chairman Dotson is not persuaded by the judge's finding that after the election the employees did elect a grievance com- mittee 277 NLRB No. 121 RADIO BROADCASTING CO anything is not sufficient to support a finding that the Respondent violated Section 8(a)(1) of the Act. Even if we agree with the judge's discrediting of Gross' explanation that the increases were granted in accordance with past company practice, we would not consider a wage increase given over 4 months later sufficient to bolster a finding that on 12 August Gross promised to increase wages. Additionally, the judge found that Gross im- pliedly promised to increase health care benefits to discourage employee support for the Union. The judge credited testimony that on the day of the 12 August meeting, Gross told an employee who had asked about additional health benefits that he would "look into it." The judge found that this statement constituted an unlawful promise when considered with evidence that, in early 1982, em- ployees received additional coverage under the Re- spondent's medical benefits plan. We disagree. We do not consider Gross' statement that he would "look into" increased health coverage to be an un- lawful promise especially where there is no other evidence that Gross promised or even discussed in- creased health care benefits. We do not find that evidence of additional health benefits given over 4 months after the election supports the judge's find- ing. The judge concluded, and we agree, that in view of the Respondent's unlawful conduct, the election should be set aside.8 The Respondent's unfair labor practices took place during the critical period be- tween the filing of the petition on 7 August and the election on 3 September in a unit of about 40 em- ployees., Although most of the Respondent's unlaw- ful conduct , consisting of promises and actual grants of increased benefits , took place during one meeting, the Respondent's president was involved and the conduct was widely disseminated. Presi- dent Gross admitted that the employees present at the meeting indicated to him that they were going to talk to the other employees. In fact, 25 unit em- ployees met later to discuss Gross' proposals. We disagree, however, with the judge's finding that the possibility of erasing the effects of the Re- spondent's unlawful conduct by the use of tradi- tional remedies is slight and therefore a bargaining order is warranted. Most of Respondent's unlawful conduct took 'place during one meeting held 3 weeks before the election and there were no post- election violations. The only unfair labor practices were violations of 'Section 8(a)(1) and they were not highly coercive violations that would impede 8 We also adopt the judge's finding as meritorious the Union's objec- tion to the election that the Employer disturbed laboratory conditions by offering illegal inducements, but only to the extent that we have found that the Respondent violated Sec 8(a)(1) of the Act 1113 .the election process. Thus, we find that the effects of those practices can be erased by the use of tradi- tional remedies. Accordingly, for the reasons set forth above, we dismiss those portions' of the complaint alleging that the Respondent violated Section 8(a)(1) of the Act by promising merit and cost-of -living wage in- creases and by promising increased health care benefits. We further order that the portion of the complaint alleging the Respondent violated Section 8(a)(5) and ( 1) of the Act by refusing to bargain with the Union be dismissed.' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Radio Broadcasting Co., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a).' "(a) Expressly or impliedly promising to grant paid personal holidays, expanded sick leave, and vacation benefits ; to recognize an employee griev- ance committee; or to redress grievances concern- ing the timely receipt of paychecks and the limiting of lunch periods , in order to discourage support for Teamsters Local No. 115, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organi- zation." 2. Delete paragraphs 1(d) and 2 (a) and reletter the subsequent paragraphs. IT IS FURTHER ORDERED that the election con- ducted on 3 Septemeber 1981 in Case 4-RC-14809 is set aside and this case is severed and remanded to the Regional Director for Region 4 for the pur- pose of scheduling and conducting a second elec- tion at such time as he deems the circumstances permit a free choice on the issue of representation. [Direction of Second Election9 omitted from publication.] MEMBER DENNIS , dissenting in part. Contrary to the majority, I would adopt all of the judge's unfair labor practice findings and his recommendation that a Gissel r bargaining order be issued.2 , The judge found that at a meeting with employ- ees just 3 weeks before the election the Respondent 9 We adopt the judge's finding that Shop Manager Anne Weinstein are not supervisors and are properly included in the unit. NLRB v Gissel Packing Co, 395 U S 575 (1969), 8 In finding a bargaining order appropriate, I rely upon my concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261 (1985) 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD solicited grievances and expressly and impliedly promised employees merit and cost-of-living wage increases, expanded sick leave benefits, three paid personal holidays, increased vacation benefits, and increased medical benefits. The judge further found that at this meeting the Respondent promised to remedy employee grievances concerning the un- timely receipt of paychecks and the limiting of lunch periods to one-half hour. The Respondent also impliedly promised to recognize and deal with an employee grievance committee if the Union lost the election.3 Finally, the judge found that after the meeting, but before the election, the Respond- ent fulfilled certain of its promises by expanding sick leave benefits and by redressing employee grievances concerning paychecks and lunch peri- ods. The Respondent engaged in serious "hallmark" violations of the Act by granting significant bene- fits to employees pursuant to its unlawful prom- ises.4 The benefits were granted for the very pur- pose of eliminating the dissatisfaction that led em- ployees to seek unionization. The misconduct was pervasive. It affected the entire unit and, as the judge stated, it was "committed at the highest levels of management." No evidence of mitigating circumstances exists. Accordingly, in my view, a bargaining order is necessary to remedy the Re- spondent's unlawful conduct. 2 In reversing two of the judge's findings of unlawful promises, the majority erroneously views each statement in isolation and fails to consid- er the totality of the circumstances In the context of a meeting in which grievances were solicited and numerous explicit promises were made, the judge was warranted in finding that the Respondent made implied prom- ises about other matters when it referred to them as "good ideas" or worth "looking into," even if the Respondent added statements to the effect that it could not promise anything at that time " See Uarco, Inc, 216 NLRB 1 (1974), which the judge cited and properly applied 4 See NLRB v Jamaica Towing, Inc, 632 F 2d 208, 212-213 (2d Cit. 1980) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT expressly or impliedly promise to grant paid personal holidays, expanded sick leave, and vacation benefits; or to recognize an employee grievance committee; or to redress grievances con- cerning the timely receipt of paychecks and the limiting of lunch periods, in order to discourage support for Teamsters Local No. 115, a/ w Interna- tional Brotherhood of Teamsters, Chauffeurs,, War- ehousemen and Helpers of America or any other labor organization. WE WILL NOT solicit employee complaints and grievances, and thereby make such promises, in order to discourage support for Teamsters Local No. 115. WE WILL NOT grant benefits or other improve- ments in terms and conditions of employment, or remedy grievances, in order to discourage support for Teamsters Local No. 115; provided, however, that nothing therein requires us to vary or abandon any economic benefit or any term or condition of employment which we have heretofore established. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of your right to engage in union or concerted activities, or to refrain therefrom. RADIO BROADCASTING Co. Joel H. Levinson, Esq., for the General Counsel. Jay G. Ochroch, Esq., and Kathleen A. McDonnell, Esq., of Philadelphia, Pennsylvania, for the Respondent Em- ployer. Norton H. Brainard III, Esq., of Philadelphia, Pennsylva- nia, for the Charging Party Petitioner. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. These consolidated cases were heard at Philadelphia, Pennsyl- vania, on March 8, 9, 15, and 16, 1982. The charges were filed, respectively, on August 19, September 11, and No- vember 17, 1981,1 by Teamsters Local No. 115 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union). The charge in Case 4-CA-12342 was amended on August 25. The complaint, which issued' on October 2 and was amended on December 31 and at the hearing, alleges that Radio Broadcasting Co. (Respondent or the Company) violated Section 8(a)(1) and (5) of the National Labor Relations Act. The Company's answer denies the com- mission of the alleged unfair labor practices. Pursuant to a Stipulation upon Consent Election exe- cuted by the parties in Case 4-RC-14809 and approved by the Acting Regional Director for Region 4 of the Board on August 27, an election by secret ballot was conducted on September 3 among the employees of the Company in an appropriate bargaining unit.2 The tally of i All dates herein are in 1981 unless otherwise indicated 2 The unit, which the parties agree and I find to be an appropriate unit for collective bargaining, consists of. All clerical employees, technical employees, sales persons, and drivers employed by the Company at its Philadelphia, Pennsylvania Continued RADIO BROADCASTING CO ballots which was served on the parties at the close of the election showed that of approximately 40 eligible voters, 13 cast ballots for the Union and 22 cast ballots against the Union. Four challenged ballots were insuffi- cient in number to affect the results of the election. The Union filed timely objections to the election. On Septem- ber 23 the Regional Director issued his Report on Objec- tions, finding that the objections covered the same sub- ject matter as the anticipated unfair labor practice com- plaint . By order dated October 2, the Regional Director consolidated the unfair labor practice and the representa- tion cases for the purpose of hearing, ruling, and decision by an administrative law judge. The Regional Director also ordered that after a decision by an administrative law judge, the representation case be transferred to and continued before the Board. All parties were afforded full opportunity to partici- pate, to present-relevant evidence, to argue orally, and to file briefs. On the entire record in this case,3 and from my observation of the demeanor of the witnesses, and having considered the briefs submitted by the General Counsel, the Union, and the Company, I make the fol- lowing FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, a Pennsylvania corporation, is engaged in the sale , leasing, and servicing of communication de- vices known as beepers at its Philadelphia, Pennsylvania facility. In the operation of its business, the Company an- nually purchases and receives goods and materials valued in excess of $50,000 directly from points outside of Penn- sylvania. I find, as the Company admits, that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES The principal issues in these cases are 1. Whether the Company engaged in interrogation, ex- press and implied promises of benefit, granting of bene- fits, and threats of discharge, all in order to discourage support for the Union, thereby violating Section 8(a)(1) of the Act. 2. Whether the election of September 3 should be set aside. 3. Whether by the above-alleged unfair labor practices the Company precluded the holding of a fair election, and therefore violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as representative of the employees in the appropriate unit. Subsidiary to this issue are the questions of whether an uncoerced majority of the Company's employees desig- nated the Union as their bargaining representative, and location, but excluding all guards and supervisors as defined in the Act Errors in the transcript have been noted and corrected 1115 whether Joanne Billingsley, Joseph Volpe, and Anne Weinstein, alleged by the General Counsel and the Union to be supervisors within the meaning of the Act, should be included in the bargaining unit.4 4. Whether the Company violated Section 8(a)(5) and (1) of the Act by bypassing the Union and dealing direct- ly with the unit employees concerning terms and condi- tions of employment. IV. THE ALLEGED VIOLATIONS OF SECTION 8(A)(1) AND THE OBJECTIONS TO THE ELECTION A. The Union Organizational Campaign and Demand for Recognition In July employees Steven Safern and Jody March con- tacted the Union. On July 29 they went to the union hall. Each signed a union authorization card and a meet- ing for employees was scheduled for the following evening (July 30 at 5:30 p.m.) at March's apartment Union Officials Joseph Yeoman and Gerald Sheahan conducted the meeting. Approximately 25 employees were present. The union officials distributed authoriza- tion cards, and cards were then signed by 24 employees.-5 The cards unambiguously stated as follows: I, the undersigned, of my own free will, desire to become a member of Local 115, Affiliated with I.B.T.C.W. and H. of A., and by so doing designate said Union as my chosen representative in all mat- ters pertaining to wages, hours and working condi- tions. Yeoman and Sheehan explained to the employees that they were designating the Union as their representative, that the cards would be used to support a demand for recognition if a majority of employees signed cards, and that absent recognition the cards could be used to sup- port a petition for a Board-conducted election Employee Joan Ranieri, who was presented as a company witness. testified that the union representatives said that the em- ployees did not have to belong to the Union, that they could get their cards back, and that they could get bene- fits even if they did not sign a card. Employee Helen Townsend, who was presented as a General Counsel wit- ness, testified that the union representatives said that "ev- erybody did not have to belong" and that those who did not join would also get the benefits. Yeoman and Shee- han in sum denied making the statements attributed to them by Ranieri and Townsend. According to Yeoman, he explained that after a contract was signed, "all of the employees would belong to the Union after 30 days " 4 The Union challenged the ballots of Billingsley, Volpe, and Wein- stein The Union also challenged the ballot of Gary DeAcosta However in the present proceeding the General Counsel and the Union do not con- tend that DeAcosta was a supervisor or otherwise excluded from the unit. 5 The General Counsel presented 30 signed authorization cards in evi- dence Two (those of Safern and March) are dated July 29, two are dated July 30, three (cards for Oliver Drakes, Anthony Roth, and June Schaef- fer) are dated July 31, and one (card for Joan Ranieri) is dated August 1 The Company does not dispute the authenticity of the cards or accuracy of the dates on the cards I find that the 24 cards dated July 30 were signed at the meeting 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jody March, who was presented as a General Counsel witness, testified that nothing, was said about getting cards back. Ranieri left the meeting early, and therefore her account of the meeting may be incomplete or other- wise unreliable. I credit the testimony of Townsend, and that of Ranieri to the extent that she corroborated Townsend, i.e., that the union representatives said that everybody did not have to join, and that those who did not join would also get the benefits. However, I also credit the testimony of Yeoman in that he explained that after a contract was signed all the employees would belong to the Union after 30, days I find that the Union did not engage in any material misrepresentation which would vitiate the signed cards. The Union might (and Yeoman testified that it would) insist upon full union se- curity in any collective-bargaining contract. However, . union security is a matter which is subject to negotiation between the union and the employer. There can be no requirement of union membership unless and until the parties negotiate and execute a collective-bargaining con- tract containing a valid union-security clause. Unless and until that occurs, there is,no requirement of union mem- bership and all unit employees are entitled to the benefits of union representation. Therefore Yeoman did not make any misrepresentation with regard to the rights of the employees. Even if Yeoman had not mentioned the pros- pect of a contract containing a union -security clause, there would still be no material misrepresentation, be- cause his statements concerning the rights of the employ- ees accurately reflected the status quo. Therefore the 24 card's which were, obtained by the Union at the July 30 meeting were valid for representational purposes. As indicated, four additional employees signed authori- zation cards within the next 2 days. Jody March testified without contradiction that she- told June Schaeffer that the cards would be used to represent a majority if sub- mitted to the Company. No testimony was presented as to the circumstances in which employees Drakes and Roth signed their cards. (March testified that Drakes was present at the July meeting; however, his card is dated July 31.) Joan Ranieri testified without contradiction that employees March and Theresa Morrone solicited her to sign a card, and that March said that this was an "open shop" and that Ranieri could quit the Union if she wanted. For the reasons discussed in connection with the July 30 meeting, March's statement accurately reflected the status quo, and did not constitute material misrepre- sentation. On August 7 Yeoman went to the Company's facility and presented Company President William Gross with a letter from the Union. The letter claimed majority status on the basis of signed authorization cards, and requested recognition and bargaining. No testimony was presented as to what if, any answer, was given by Gross. However, later that day the Union filed `its petition for an election, and the Company never recognized the Union as bar- gaining representative. As of the eligibility date there were 37 to 40 employees in the appropriate unit (depend- ing on the status of Billingsley, Volpe, and Weinstein, none of whom signed authorization cards) The Union was in possession of 30 valid authorization cards, i.e., signed by a majority of unit employees. B. Meetings During the Week of August 10 and the Alleged Interrogation, Threats, and Promises and Granting of Benefits 1. The facts In August 1981 the Company's top (if not entire) man- agerial hierarchy consisted of Board Chairman Leon Gross, President William Gross (Leon's son), and Gener- al Manager James Wallace. William Gross functioned as the chief executive officer. On receiving the Union's re- quest for recognition, the three of them discussed the sit- uation, i.e., why the employees called in the Union, the possible effects of unionization, and what action they would take in the circumstances. Employee Peter Kara- molengas told William Gross that Steven Safern was talking about the Union and might be able to shed light on "the problems." On August 11 Gross approached Safern. Gross asserted that this was a family business and asked: "How can we have outsiders?" Gross said that he wanted to know the "problems." Gross testified that he did not arrange any further meeting, but that the meeting which followed the next day just happened. However, it is evident in the circumstances that Gross expected some feedback from the employees.s The next morning (August 12) Safern summoned em- ployees Jody March, Helen Townsend, and Gary DeA- costa to accompany him to Gross' office. As indicated, Safern and March were the principal union activists. Ac- cording to March, they asked Townsend and DeAcosta to come along because those two were relatively older employees. Gross asked General Manager Wallace to participate in the meeting. The ensuing meeting (actually two meetings) lasted through the morning, and after a lunchbreak, resumed and continued until about midafter- noon. All of the participants except Safern testified con- cerning the meeting. March and Townsend were present- ed as General Counsel witnesses, and Wallace and DeA- costa were presented as company witnesses, Gross was presented as a company witness and also as an adverse witness for the General Counsel. All of the participants were still in the employ of the Company at the time of the present hearing. It is evident that the witnesses were uncomfortable about the whole matter. Their testimony was characterized by a tendency toward vague or equiv- ocal language,' or professed inability to recall details. Among the witnesses who testified concerning the meet- ings, March was the most forthright in her testimony. However, even in her case, the General Counsel found it' necessary to prod her with leading questions The, wit- 6 My findings with regard to Gross' contact with Safern are based on the testimony of Gross Safern was not presented as a witness Jody March and Gary DeAcosta testified that Safern told them that Gross called the meeting In the absence of any testimony by Safern, and in light of Gross' denial that he arranged the meeting, I am not inclined to credit the hearsay testimony of March and DeAcosta as indicative of what Gross actually told Safern During the hearing, union counsel sug- gested that the General Counsel released Safern from his subpoena be- cause Gross loaned money to Safern I do not regard this as a valid reason for failing to call a material witness It cannot be presumed that Safern would testify falsely because he owed money to Gross The sig- nificance of the General Counsel's failure to call Safern will be discussed further, infra RADIO BROADCASTING CO. messes were in substantial agreement with respect to much of what was said in the meetings. However, their testimony conflicted as to several crucial matters and also raised questions concerning the inferences which should be drawn from what was said by Gross and Wal- lace at the meetings. In order to resolve these questions, it is helpful to consider the background of the Compa- ny's employee relations. The Company was, as Gross was fond of saying, a family business. Gross, together with his parents, tried and indeed preferred to maintain control over even the most minute aspects of employee working conditions. Rather than establish uniform standards, Gross preferred to dispense or withhold wage increases and benefits on an ad hoc basis, preferably at the request of an individual or groups of employees. The employees accommodated themselves to this system, and as indicated by Gross•,in his testimony, they usually came to him with their prob- lems. The employees were engaged in work which in- volved constant contact with the public, and usually were not shy about expressing their problems. They were an outspoken and relatively sophisticated group. However, by the spring of 1981 Gross was finding it in- creasingly difficult to conduct employee relations in this manner. The business was expanding, there were more employees, Leon Gross was reducing his involvement in clay-to-day affairs, and William Gross was frequently away from the facility. In March 1981 the Company hired James Wallace as general manager. Wallace was gradually (and with obvious reluctance on the part of Gross) given increased authority over personnel matters. He attempted to establish standards. However, when this was done, the employees, at least with regard to some matters, viewed the standards as overly strict or as fail- ing to provide adequate wages or benefits. These prob- lems, among others, led the employees to contact the Union This brings me back to the August 12 meetings. Gross opened the meeting with a statement about how this was a family business. He asked the employees why they had gone to the Union before coming to him.7 March ex- plained that Gross was always too busy to talk to them. Gross insisted that this was not true, and that his door was always open. Gross asked for the employees' com- plaints and grievances. At this point the employees began to present the problems, and the ensuing discussion of specific matters took up most of the August 12 meetings. Townsend, who worked as assistant bookkeeper, com- plained that the employees were not receiving their pay- checks on time. This problem had developed during the past 2 or 3 months. True to Gross' manner of operation, the Gross family had followed a practice of personally signing paychecks on payday (Tuesday). However, with Gross' increasing involvement with business away from the facility the checks were sometimes not ready until it was too late to have them cashed. The Company would 7 Gary DeAcosta testified that Gross did not ask this question How- ever, General Manager Wallace admitted that Gross asked the question, and Gross himself admitted that he expressed concern that the employees sought "outside help" by going to the Union On cross-examination, LleAcosta was conspicuously evasive, and repeatedly professed inability to recall details of the meetings 1117 sometimes advance money to, employees out of petty cash but this arrangement was inadequate to meet the employees' needs. Townsend suggested either a check writing machine (using a facsimile signature) or that Wallace be authorized to sign checks. Gross rejected the first alternative, but promised "to have someone there who could sign the checks and have them properly dis=` persed on Tuesday mornings." By the end of August, the Company had authorized General Manager Wallace to sign paychecks. Townsend also suggested that the employees should have three paid personal days She testified that she could not recall what was said about her suggestion. Manager Wallace testified that he did not recall if Gross responded to the suggestion. According to March, Gross said that he "saw no reason why that cannot be put into effect," However, he rejected Townsend's proposal that they be cumulative from year to year. Gross testified that he said this was "an idea to be considered," that it was not a bad idea, but that he could not do anything about it at that time, i.e., because of the election cam- paign. DeAcosta corroborated Gross' testimony in this regard. According to Gross, when the employees submit- ted their suggestions during the meetings on August 12, he would respond by characterizing the suggestion as either a good or reasonable idea, or as a bad idea. Gross testified that he told the employees he could not do any- thing until after the election, and that he did not make any promises. The General Counsel presented testimony to the contrary, although that testimony could hardly be characterized as being of the highest quality. In response to leading questions from the General Counsel, Jody March testified that Gross said that the proposals to which he agreed would be put into effect on January 1, 1982. Also in response to leading questions from the General Counsel, Helen Townsend initially indicated that Gross referred to an effective date of January r, 1982. Townsend then backed away from this implication, asserting that Gross did not make any promises, and that she could not specifically remember any date. However, Townsend qualified her assertion that Gross made no promises. Townsend testified as follows: Q. Did he say that your proposals would go into effect on January 1, 1982 after the whole problem of the Union was cleaned up? A. That was only on the contingency that he couldn't make any promises. He couldn't make any promises. Every one of us knew that. But he wanted the vote and it all would swing on which way the vote went, that's all. Q. What would swing on the vote? A. What would happen. If a Union got in, then his hands were tied. Waiting for the vote his hands are tied. He can't make promises. Q. But if the Union didn't get in then his propos- als could be put into effect-your proposals could be put into effect on January 1, 1982? A. I don't specifically remember any date. Q. Do you remember him saying anything about the fact that if Union didn't come in then he could 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD put your proposals into effect9 He didn't say any- thing like that? A. I don't know if he did or not, I can't remem- ber. In sum, according to Townsend, Gross either indicated, or did not rule out, that acceptable proposals could or would be effectuated if the Union lost the election Standing alone, the testimony of March and Townsend does not present a strong basis for finding that Gross made express promises of benefits if the Union lost the election . However, additional evidence , including testi- mony by Gross and evidence of personnel actions taken by the Company during the election campaign and after the election, further indicates that Gross did in fact make such promises. According to Gross, he did not expressly ask the four employees to report back to the other em- ployees on the meeting , but he "assumed that that would be done." However, Gross admitted that they indicated that "they were going to talk to the other people and see what their feelings were and possibly report back to me." If Gross did not make any promises, then there would have been little purpose for the meeting of em- ployees which followed the August 12 meetings with Gross, and even less reason for the additional meeting with Gross which followed that employee meeting. Gross also emphasized in his testimony that he could not do anything because of the "election process," thereby leaving open at least the implication that changes could be made if the Union lost the election. As indicated, Gross admittedly made one express promise, namely, that someone would be available to sign paychecks on Tuesday mornings. With regard to the matter of paid personal days, no direct evidence was presented that the Company formally instituted a practice of granting such leave. However, employee Rubin Smith testified without contradiction that another employee (Marco Rivera) took a "personal day" in late January 1982. Prior to August 12, 1981, the Company did not have a practice of paid personal days. Additionally, as will be discussed, the Company eventually implemented other changes in wages and working conditions which were consistent with express or implied promises made by Gross at the August 12 meetings I credit the testimony of March that Gross said he saw no reason why the employees could not receive 3 paid personal days. I further find that Gross expressly promised to effectuate these and other benefits by January 1, 1982, if the Union lost the elec- tion. Until July 1981, the Company had no standard sick leave benefits. If an employee took off from work be- cause of illness or nonjob-related injury, the employee normally was not paid for time away from work. How- ever, the employee could request to be paid for such time ' These requests were made either directly to Gross or his parents, or indirectly through the bookkeeping office, which consisted of Head Bookkeeper Joanne Bil- lingsley and Assistant Bookkeeper Helen Townsend. Gross or his mother or father made the decision whether such pay would be granted. This policy tended to favor certain employees, e.g., those with relatively higher ranking or specialized positions , long service with the Company, special access to management, or a combina- tion of such factors. The Company presented in evi- dence, selected timecards for a period from August 3, 1980, through September 6, 1981. According to General Manager Wallace, he selected these cards because they reflected sick leave, personal time off, and the length of lunchbreaks, i e , matters at issue in this proceeding. The cards tend to confirm both the selective practices prior to August 1981 and changes in sick pay practices after the August 12 meetings. The cards indicate that during the period from August 3, 1980 through July 19, 1981, sick pay was given to shop manager Joseph Volpe, his immediate assistant James Jungclaus , Head Bookkeeper Joanne Billingsley and her assistant Helen Townsend, and engineers Peter Karamolengas and William Gou- lounes All but Billingsley and Townsend (who prepared the payroll) had more that 5 years' service with the Company. On June 28, 1981, employees Robert Green and Michelle Cammarota were sent home with pay after being involved in an auto accident on the way to work. Green was Billingsley's son, and Cammarota was his girl friend. There is no record of any other employees having received paid sick leave or comparable compensation prior to August 1981. In late July 1981, the Company posted and distributed a notice to its employees, inform- ing them that "effective immediately," they would be of- fered "additional benefits" consisting of 2 weeks' paid vacation after 3 years of service, and eligibility for 5 paid sick days per year after 5 years of service However, the employees regarded these ostensible benefits as inad- equate, and their dissatifaction was a contributing factor to the union organizational campaign As a result, as will be discussed, the Company never implemented these pro- posed standards.8 At the August 12 meetings, Helen Townsend proposed that employees with less than 5 years' service should also be entitled to 5 days of sick pay, and that sick pay should be cumulative. She complained that employees would come to work even when sick, because they could not afford to lose pay According to Townsend, Gross said that this was a good idea. March testified that Gross said he saw no problem with employees being en- titled to 5 days' sick leave per year after completing a 90-day probationary period, and that he also agreed to Townsend's suggestion that sick leave be made cumula- tive from year to year. Gross failed to testify as to what he said with regard to the specific matter of sick leave, and Manager Wallace professed that he could not recall what Gross said about the matter However, Gary DeA- costa admitted that Gross characterized Townsend's sug- gestion as a "good idea." The Company's own records (timecards) indicate that beginning about mid-August 1981 there was a proliferation of sick leave paid to em- ployees, including sick leave for which the employees would not have qualified either under the Company's prior selective policy or under the purported policy an- 8 Gross testified that the notice was posted about 1 month after Man- ager Wallace began with the Company, i e, about April 23 Even Wal- lace failed to corroborate this testimony According to Wallace, the new policy was announced in June Employees March and Smith testified that the notice was posted and distributed in late July I credit the employees RADIO BROADCASTING CO nounced in late July. Employee Alice Lloyd began working for the Company on October 30, 1980, and was discharged on October 13, 1981. She had minimal senior- ity and obviously was no favorite of management Nev- ertheless she received two paid sick days for the week ending August 23 and one paid sick day for the week ending August 30. Timecards indicate that other employ- ees with less than 5 years' seniority (Tina Mancini, Eileen Wolfe, Jody March, Wanda Graham, Joseph Gar- rity, and Steven Safern, as well as Helen Townsend, re- ceived sick pay in late August or September 1981). Em- ployee Rubin Smith, who was hired on September 18, 1979, testified without contradiction that he received 2 days' sick pay some time after the Union's demand for recognition. Jody March, who was hired on March 12, 1979, testified that she received 5 days' sick pay in 1981, and that Manager Wallace told her that she did not get paid for another day because she already had five sick days. The timecards for March which were presented in evidence do not add up to a total of five paid sick days for March, However, Wallace did not deny her testimo- ny. I credit the testimony of March, including her testi- mony concerning the statements made by Gross at the August 12 meeting. I find that Gross expressly promised that all employees, after their probationary period, would be entitled to five paid sick days per year, and that about August 16, 1981, the Company effectuated such a policy. The matter of vacations was discussed at the afternoon session on August 12. This lime Gross initiated a propos- al. He told the employees that the Company was consid- ering increasing the amount of vacation time, both as to eligibility and number of weeks of vacation leave. Ac- cording to Townsend, Gross said that he thought 2 weeks' vacation for employees with 1 to 3 years of serv- ice, and 3 weeks after 3 years' service was a good vaca- tion policy, and he asked the employees for their opin- ion Jody March testified that Gross proposed I week's 'vacation with 1 year of service, 2 weeks with 2 years' service, and 3 weeks with 3 years' of service, and the employees present replied that they would "take it back to the employees." Gross, in his testimony, admitted tell- ing the employees that "we were thinking of increasing the number of weeks with less years of being with the Company." However, he testified that the Company never reached a decision on the matter, and never set an effective date. The evidence is inconclusive as to wheth- er the Company actually granted vacation benefits more favorable than those announced in late July (2 weeks' paid vacation after 3 years of service). As the present hearing took place prior to the late 1982 summer vaca- tion season, it is evident that there would not be much available evidence concerning the Company's actual practices after August 12, 1981. According to Manager 'allace, the Company implemented the policy which was announced in late July, and employees with 1 to 3 years' service received 1 week's paid vacation, Rubin Smith testified that he was entitled to I week's paid va- cation in 1980, 1 week in 1981, and 2 weeks in 1982 Ac- cording to Smith, he took 1 week of his 1982 vacation lime in February, and asked to defer using the other week However, Manager Gross testified in sum that en- titlement to vacation pay was calculated by the calendar 1119 rather than actual service -year, i.e., that an employee like Smith, who began in September 1979, is entitled to 2 weeks' vacation in 1982 because he will have 3 years' service in 1982. As indicated, the evidence is inconclu- sive as to the policy followed by the Company after August 1981 There is also some difference between Townsend and March concerning the details of Gross' proposal. However, for the reasons discussed above in connection with other benefits promised at the August 12 meetings, I credit the testimony of March and Town- send in that Gross made a specific proposal for improved vacation benefits. Gross and the employees also talked about lunch and rest breaks. As will be explained, infra, these matters were essentially of interest to the clerical employees Ac- cording to Townsend, she expressed her concern that one-half hour was too short to enable the employees to go out to lunch. Jody March also testified that Town- send complained about a half-hour lunch. According to March, Townsend asked if the employees could have a 1 hour lunch, and Gross responded that "to his knowledge he never had a problem with an hour lunch period." Gary DeAcosta testified that someone raised the idea of a 1-hour lunch period, and that Wallace or Gross re- sponded that it was a good idea, that they would consid- er it, but that they could not do anything about it at the time. Gross testified that when Townserd raised the matter of a 1-hour lunch period, he told her that he had no objection to the idea because "the way we had de- rived at the current lunch situation was because basically everybody had always decided on what they wanted " In order to resolve what was said at the meeting, it is necessary to consider the context of the Company's actual practices with regard to lunch periods. Those practices were hardly a model of clarity. The Company did not have paid lunchbreaks. Clerical employees clocked out for lunch, clocked back in, and were not paid for the intervening time. According to Gross, one- half hour or 45 minutes was deducted from the employ- ee's timecard, unless the employee told one of the book- keepers that he or she was working through without taking a lunchbreak. However, it is evident that this practice would apply to hourly rated employees who normally worked away from the Company's premises, i.e., drivers, because the office employees normally punched their own cards. Indeed, March testified that she understood that the practice was followed with regard to drivers. It is also evident that if the lunch hour were officially increased, such increase would operate to the detriment rather than to the benefit of the drivers, as they would lose paid time. As for the clericals, the time- cards which were presented in evidence indicate that prior to July and after, mid-August, but not in the inter- im, clerical employees might take anywhere from one- half hour to over 2 hours for lunch. The General Coun- sel presented in evidence a notice to employees dated September 1, 1977, indicating, inter alia, that the employ- ees were to take lunch in fixed one-half hour shifts. However, in a notice dated September 29, 1979, the Company informed the employees that "the new lunch period will be 3/4 hour." According to Jody March, the 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company had a "flexible" _45-minute lunch period. How- ever, after James Wallace became general- manager, he told the clerical employees that because of a backlog of paperwork, the lunch period would be limited to one- half hour. March testified that after August 12 the lunch period was changed to 1 hour. Wallace testified that when he began with the Company, there was an official half-hour lunch period, but that some employees were taking, as much as 2 or 3 hours for lunch. According to Wallace, there was a tremendous backlog of work in June. He told the clericals to watch the time they were taking, and to try to cut their lunchbreaks to one-half hour or 45 minutes. Wallace testified that by July or August the backlog had been cleared up and the employ- ees were free to take as much time as they wanted. Ac- cording to Wallace he did not care about the length of lunchbreaks as long as the work was getting done, and he so explained to the employees at the August 12 meet- ing. Returning to the August 12 meeting, I credit the testi- mony of March and Gross. Indeed there is no conflict between Gross' version of his reply and that of March. In the context of the Company's past and existing prac- tices, I interpret Gross' statement as a redress of employ- ee grievances. Gross did not promise or grant a fixed 1- hour lunch period, nor would the employees have wanted him to do so As indicated, an official 1-hour lunch period would have resulted in loss of pay for many employees, e.g., drivers, or those clerical employees who preferred to take less than 1 hour for lunch. However, many or most of the clerical employees wished to leave the company premises for lunch, and they perceived Manager Wallace's admonishments during the summer of 1981 as undercutting that privilege. They so indicated to Gross and Wallace. At the August 12 meeting Gross as- sured them that they would not be held to a half-hour lunch, and that he regarded 1 hour as a reasonable lunchbreak. At the August 12 meetings Helen Townsend proposed two daily breaks of 15 minutes each, one in the morning and one- in the afternoon. Jody March testified that Gross said he saw no problem with that. However, March also testified that he said he was not aware of any restriction on breaks. March was the only witness who indicated ,that Gross responded affirmatively to Town- send's proposal. According to Townsend, Gross said that there was never a problem with breaks, and that no one had ever been stopped from taking a break. Manager Wallace testified that he said that he did not think the idea of fixed breaks was appropriate, and that employees could get coffee any time they wanted it. Gross testified that he said that everybody did what they wanted, that the average employee took three to five breaks, and that he did not care as long as the work got done. Gary DeAcosta testified that Manager Wallace characterized Townsend's proposal as "silly." The evidence corrobo- rates" Gross' assertion that breaks were never a problem. Jody March admitted that she took breaks whenever she wanted, and that she did not time herself on breaks. The evidence fails to indicate that company practices with regard to breaks changed after August 12. I find that Gross and Wallace responded to Townsend's suggestion by defending current company policy, and that they did not promise, propose, or suggest that there would or should be any change in that policy. The complaint alleges that the Company "promised its employees that an employee relations committee would be established if they rejected the Union as their bargain- ing representative." Gary DeAcosta testified that at the August 12 meetings he raised the idea of an employee re- lations committee, so that the employees could have input into employee evaluations. However, according to DeAcosta, Gross replied that this was not the kind of thing that could be decided on by vote. In response to prompting from the General Counsel, Jody March testi- fied that someone suggested a grievance committee con- sisting of four employees which would meet weekly and present problems or suggestions to the Company March did not indicate whether Gross or Wallace responded to this proposal. Helen Townsend similarly testified that someone suggested a grievance committee, but she testi- fied that no promises were made. Gross testified that he did not recall any discussion of an employee relations committee. According to Manager Wallace, Steve Safern said that the employees thought of forming a grievance committee, but decided instead to go to the Union. Wal- lace agreed with Townsend that a grievance committee was a good idea, but he stated that the Company could not do anything about it then because its "hands are tied." However, Wallace admitted that he asked those present to get a list of complaints and grievances from the employees. As will be discussed, evidence was pre- sented that after the Union lost the Board-conducted election, the clerical employees elected a grievance com- mittee. As indicated, neither Townsend nor March claimed credit for suggesting a grievance committee. Therefore it is evident that either Safern or DeAcosta raised the matter. I credit the testimony of DeAcosta. I find that DeAcosta proposed a committee to participate in the employee evaluation process but that Gross reject- ed the proposal. However, in light of the testimony of Wallace, I find that the company representatives left open the possibility that the Company might deal with an employee grievance committee after the Board elec- tion. Jody March testified that Townsend complained that the clerical employees needed job descriptions, because they did not know "who did what." According to March, Gross and Wallace said that they could get to- gether on a "policy outline." March asked if this could be put in writing, whereupon Gross allegedly replied that this would be illegal "until the problems with the Union were straightened out." March testified that this was the only occasion on which Gross was asked to put anything in writing. Helen Townsend testified that she suggested job descriptions for the office employees, but that she could not recall Gross' response. Manager Wal- lace testified that March asked for job descriptions. He responded that he had considered the idea, but rejected it because it was inappropriate for a small firm such as the Company, which needed flexibility in its operations. Gross testified that he said he was unfamiliar with the concept of job descriptions, whereupon DeAcosta and RADIO BROADCASTING CO Wallace explained it. Gross allegedly asserted that the concept was too rigid for a small office, and that em- ployees should be available to perform the jobs of other employees, i.e., clericals for other clericals and techni- cians for other technicians. Gary DeAcosta substantially corroborated the testimony of Gross. No evidence was presented which would indicate that the Company pre- pared job descriptions or any "policy outline" after August 12. In light of the specific testimony of Gross, Wallace, and DeAcosta, it is evident that the Company was decidedly negative on the idea of job descriptions. Just what new "policy outline" could have been present- ed by the Company was not made clear The Company's policy, as stated in its September 1, 1977 notice and re- stated at the August 12 meeting, was that clericals were expected to be able to substitute for other clericals, and that the same was expected of technicians I find that the Company rejected the idea of job descriptions and de- fended its existing policies. Wages were also discussed at the August 12 meetings. It is evident from the testimony of the participants that wages were a top priority item for the drivers, sales, and technician employees. It is also evident that Steven Safern was the leading employee participant in this dis- cussion. In the absence of his testimony it is questionable whether a complete and accurate determination of the conversation can be made However, the testimony of the witnesses does indicate the general course of the con- versation. According to Jody March, Safern asked if the drivers could get more than -`$4 per hour (their current rate). Gross allegedly responded that this would be eco- nomically unfeasible, and that it would be cheaper to subcontract the work and send the beepers to California for repair. Helen Townsend testified that Gross said something about sending out the beepers. Gary DeA- costa inferentially corroborated the testimony of March. DeAcosta testified that at the subsequent meeting of em- ployees, March reported that Safern brought up the issue of drivers' pay, and that Gross said that "$4.00 was the limit"; otherwise, "they may have to go to an outside de- livery service." Manager Wallace did not testify con- cerning the discussion on wages. Gross testified that Safern complained about the $4 rate for drivers Gross responded that he could not go beyond that rate because it would exceed the Company's budgetary guidelines. According to Gross, lie said he preferred doing business with his own drivers rather than having sales employees do the service work. Gross denied that he made any "predictions." He initially denied saying anything about beeper service, but subsequently admitted saying that he would "try and preserve" the servicing of beepers. No witnesses testified or otherwise indicated that the Union, union scale, or prospective union demands were mentioned at any time in connection with wages. Gross specifically denied that there was any mention of union demands. No evidence was presented which would indi- cate what the Union might demand in the matter of wages (or any other matter beyond that of a union shop), nor was any evidence presented which would indicate that the employees were aware at this time of the 1121 Union's position on wages.9 I credit the testimony of March, Townsend, and DeAcosta in that Gross indicated that he might contract out service or delivery work rather than pay more than $4 per hour. However, for reasons which will be discussed, infra, I find that Gross did not thereby make any threat proscribed by the Act, This was not the end of the discussion on wages. Gary DeAcosta testified that in connection with his rejected suggestion concerning an employee relations committee, he raised the matter of annual merit and cost-of-living in- creases According to DeAcosta, Gross said that this was a good idea, but that he could not promise anything at the present time. Gross (contradicting the Company's own witness) testified that merit or cost-of-living in- creases were not mentioned at any meeting. Effective December 28, 1981, nearly every hourly rated employee in the unit received a wage increase. i ° The increases, which were announced at a Christmas party on Decem- ber 24, ranged in amount from 40 cents to $1.25 per hour. According to Gross the increases were granted in accordance with past company practice of giving raises at the end of the year. This explanation was refuted by the Company's own records. Those records indicate that the Company gave raises at various times during the year. Among 20 unit employees who were on the payroll as of January 1, 1980, Il received raises effective as of the week ending January 4, 1981. The others did not re- ceive raises in December 1980 or January 1981, but did- receive raises at other times. Four employees who began in early 1980 received raises prior to December 1980 and did not receive raises in December 1980 or January 1981. The explanation given by Gross is demonstrably false. The complaint does not allege that the Company un- lawfully granted wage increases in December 1981. However, the General Counsel requests in its brief (Br. at 17) that I make such a finding. See also, the General Counsel's brief 18, concerning implementation of im- proved health care benefits. By letter dated December 23, 1981, the Union informed the Company that it would not file any unfair labor practice charge based on any wage increases or improved fringe benefits after that' date. Gross admitted that he would have granted the in- creases regardless of the letter, although he received the letter before he announced the increased. Nevertheless; in view of the Union's stated position, it would be inap- propriate to find that the Company acted unlawfully by granting the increases and improved benefits. However, the unprecedented wage increases, coupled with Gross' demonstrably false explanation for those increases, tends to indicate that Gross promised cost-of-living and merit increases if the Union lost the election, and that such in- creases were included and indeed, foremost among the promised benefits which would be effectuated on Janu- ary 1, 1982. 9 The Company offered in evidence certain union campaign literature which was distributed in late August, i e, after the meetings , and which, inter alia, purported to reflect wage scales at unionized facilities I sus- tained the General Counsel's objection to the offer, and therefore the lit- erature is not a part of the record io Among the hourly rated employees still on the payroll as of Decem- ber 28, only driver Joseph Peppleman, who received an increase in Sep- tember, did not receive an increase in December 1981 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jody March testified that during the break between the morning and afternoon meetings on August 12, Gross came into the middle office (where March worked), and asked employees what the problems were. According to March, one employee asked, about "increased benefits and Blue Cross/Blue Shield." Gross said he would "look into it." Gross testified that he did not talk to a small group in the office, and that he never discussed Blue Cross-Blue Shield benefits. However, Gross admitted that during August he spoke individually to nearly every employee at the facility, that he initiated at least half of these conversations, and that he explained the Compa- ny's alleged difficulties Gross did not explain why it was necessary to talk individually to the employees if he was making the same speech to all of them. March and em- ployee Rubin Smith testified without contradiction that in early 1982 they received dental and eye care coverage under the Company's medical benefits plan, and that they did not previously enjoy such coverage. The com- pany witnesses did not give any reason or explanation for these increased benefits. I credit the testimony of March. The significance of Gross' statement will be dis- cussed, infra. At the close of the August 12 meetings, Gross asked the employees present to go to the other employees and see if they were of the "same mind." Gross said that he would "go along with whatever they went along with "11 That evening, or the following evening, about 25 of the unit employees, including the 4 who met with Gross and Wallace, assembled and met at Jody March's apartment 12 March's husband Len March (not an em- ployee) was also present, and he participated in the meet- ing. March and Townsend reported on the meetings with Gross. The ensuing discussion centered on whether Gross could be trusted. In light of this undisputed fact, it is evident that whether or not Gross' statements were characterized as "promises," the employees understood that Gross made specific commitments or statements of positions with regard to the matters discussed at the meetings in his office, e.g., by characterizing proposals as good or bad ideas. The employees voted unanimously to stay with the Union. (DeAcosta, who had not signed a union card, was not permitted to participate in the dis- cussion and vote.) The next day, August 13 or 14, Gross summoned Townsend, March, and Safern into his office. Manager Wallace was also present, and Gary DeAcosta came in toward the end of the meeting. Gross asked if they took the proposals back to the employees. March reported that they did but that they decided to stay with the Union. Gross asked why, and March replied that the main reasons was that the employees did not trust him. Gross expressed disappointment; and again talked about this being a family business, but said that they would all be bound by the results of the election. Townsend ex- pressed concern that union adherents might be fired if 11 Gross testified at one point that there was no mention of problems, complaints, or grievances at the August 12 meetings In light of all the testimony discussed above, including the admissions of Gross and Wal- lace, Gross' testimony in this regard is incredible 11 March testified that this meeting took place on Thursday, August 13 Gary DeAcosta testified that they met on the evening of August 12 I find it unnecessary to resolve this discrepancy the Union lost the election. Gross answered that he would not do this. There was no substantive discussion concerning wages or working conditions.13 March testi- fied without contradiction that either Gross or DeAcosta said that if the Union were voted out, there could be an- other election in 6 months if Gross did not keep his promises. 14 The evidence fails to indicate that there were any fur- ther meetings between the Company and unit employees prior to the election. However as indicated, the Compa- ny implemented some of its promises prior to the elec- tion by authorizing Wallace to sign paychecks, making sick leave available to all unit employees, and refraining from limiting the lunchbreaks taken by its employees. 2. Concluding findings In Uarco, Inc., 216 NLRB 1, 1-2 (1974), the Board held as follows: [T]he solicitation of grievances at preelection meet- ings carries with it an inference that an employer is implicitly promising to correct those inequities it discovers as a result of its inquiries. Thus, the Board has found unlawful interference with employee rights by an employer's solicitation of grievances during an organizational campaign although the em- ployer merely stated it would look into or review the problem but did not commit itself to specific corrective action; the Board reasoned that employ- ees would tend to anticipate improved conditions of employment which might make union representa- tion unnecessary. However, it is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the promise to correct griev- ances or a concurrent interrogation or polling about union sympathies that is unlawful; the solicitation of grievances merely raises an inference that the em- ployer is making such a promise, which inference is rebuttable by the employer. It is of course unlawful for an employer to expressly or impliedly promise or grant benefits to its employees in order to discourage support for a union, regardless of whether such conduct occurs in the context of a solicita- tion of benefits. NLRB Y. Exchange Parts Co., 375 U.S. 405, 409-410 (1964). As heretofore found, President Gross initiated the process which led to the April 12 meetings by demand- ing to know the "problems" which brought in "outsid- ers," i.e., the Union. After opening the meetings with a statement about how this was a family business, Gross 11 Wallace testified that Gross said the Company was considering changes in vacation policy As indicated, I find that this matter was dis- cussed at the afternoon session on August 12 34 The Union contends (Br 10) that for this reason, if no other, the election should be set aside I find this contention without merit First, March failed to indicate whether the statement was made by Gross or DeAcosta Therefore the evidence is inconclusive whether the Company or merely a unit employee misrepresented Board law Second, March tes- tified that she checked with the Union about the matter. Therefore it is evident that the Union had adequate opportunity to inform the employees of the applicable Board law RADIO BROADCASTING CO. specifically asked the employees why they went to the Union before coming to him. Gross' inquiry was couched in the form of a question relating to union activ- ity. However, when viewed in context, Gross' inquiry constituted a solicitation of grievances rather than coer- cive interrogation. Gross assumed or knew that most of the employees had joined the Union, he knew which em- ployees were instrumental in contacting the Union, and he evidently had no further interest in pursuing this aspect of the situation. However, Gross was determined to learn the grievances and problems which led to the union activity, in order to thereby determine how he might dissuade the employees from voting for the Union in the pending election. Therefore Gross' inquiry consti- tuted "solicitation of grievances" as defined by the Board in Uarco. I find that the Company violated Section 8(a)(1) of the Act by expressly promising merit and cost-of-living wage increases, sick leave, personal days for all employees, and increased vacation benefits, in order to discourage them from voting for the Union in the pending election. I fur- ther find that the Company violated Section 8(a)(1) by promising and agreeing to remedy other specific employ- ee grievances in order to discourage support for the Union. Specifically, President Gross promised and agreed that someone would be available on Tuesdays to sign paychecks and that the employees would not be held to a one-half hour lunch period. I also find that the Company violated Section 8(a)(1) by impliedly promising to recognize and deal with an employee grievance com- mittee if the Union lost the election, and by impliedly promising increased Blue Cross-Blue Shield benefits in order to discourage employee support for the Union. When the employees suggested a grievance committee, Gross characterized the suggestion as a good idea. It is evident from the testimony concerning the meeting of employees at March's apartment that regardless of whether Gross made categorical promises, the employees understood that when Gross described a suggestion as a good or bad idea, he was thereby indicating his accept- ance or rejection of that idea. Following the Board-con- ducted election, as will be discussed, the clerical employ- ees acted on Gross' promise by electing a grievance committee. When Gross solicited grievances among indi- vidual employees, he promised to "look into" the matter of increased health care benefits. (See Uarco, supra.) In 1982, acting in accordance with the time schedule which was expressly promised at the August 12 meetings, the Company without further explanation granted dental and eye care coverage. Therefore it is evident that Gross im- pliedly promised both the grievance committee and the increased health care benefits, and the employees so un- derstood. In Uarco, supra, the Board held that although solicita- tion of grievances gives rise to an inference that the em- ployer is "implicitly promising to correct those inequities it discovers as a result of its inquiries," the "inference is rebuttable by the employer." Plainly, that inference is re- butted when the employer rejects the employees' sugges, tion, or characterizes the suggestion as a bad idea, or de- fends the policies or practices which gave rise to the as- serted grievances. In these circumstances, the employees 1123 have no basis for believing that the employer is promis- ing any change in the pertinent working conditions. Indeed, an employer has a right to defend its personnel practices and policies, so long as those practices and policies are themselves lawful. Such defense does not constitute either a promise of benefit or a threat of re- prisal. Therefore I find that the Company did not either expressly or impliedly promise job descriptions, or 15- minute breaks, and did not violate the Act with respect to these matters. The complaint alleges that the Company "threatened to discharge its employees if said employees supported the Union." This allegation relates to Gross' rejection of a pay scale in excess of $4 per hour for the Company's drivers (G.C. Br. 22-23). Gross inferred that he might contract out driver or service work rather than pay the higher rate. However, Gross neither expressly nor im- pliedly equated unionization, as 'such, with loss of that work. The evidence fails to indicate that unionization or even union scale was discussed in this regard. An em- ployer does not violate the Act by stating his position that he cannot afford to pay wages in excess of a particu- lar amount, and that he would be inclined to make other arrangements rather than pay the higher rate. See Morse's Foodmart of New Bedford, 230 NLRB 1092, 1099 (1977).15 The complaint allegation is without merit. The present case is not one in which the employees voluntarily came to the Employer with their grievances. In the past, the employees had done so. However, in the summer of 1981 the employees instead exercised their statutory right to seek aid from a union However, Gross confronted one of the two leading union adherents and demanded that the employees present their problems to him. Gross was determined to maintain his concept of a "family business," i.e., a nonunion business. Gross then proceeded to use Safern, March, Townsend, and DeA- costa as a conduit to discuss the entire range of employ- ee grievances, and to convey his promises to all the unit employees. He also insisted that the employees respond to his promises, assurances, and statements of position. Gross qualified his promises only to the extent that he in- dicated that at least some of these promises could not be fulfilled until after the election (assuming that the Union lost the election). The employees, acting through the named employees, responded that they did not trust Gross to keep his promises. However., Gross did not let matters rest in this posture. Gross was determined to in- dicate to the employees that he intended to keep his promises. Therefore he advanced his own announced timetable by immediately effectuating some of his prom- ises. These actions were a continuation of the same un- lawful course of conduct which Gross initiated when he contacted Steven Safern on August 11. Therefore the Company violated Section 8(a)(1) of the Act by expand- ing sick leave benefits ' and redressing employee griev- ances concerning paychecks and lunch periods, all prior to the Board-conducted election. (For the reasons dis- i s Pacific Diesel Parts Co, 203 NLRB 820, 821 --822 (1973), relied on by the General Counsel (Br 23 ) is not in point In that case, the employer expressly threatened to contract the work if the shop became union No comparable threat was made in the present case 1124 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD cussed, supra, 1 have not made, any findings of illegality with regard to promises implei,iented on or after Decem- ber 23, 1981.) C. The Election and the,Proliriety of a Bargaining Order The Union alleged, by way, of objection to the elec- tion, that, Said employer and those acting on its' behalf en- gaged in a course of conduct including offering ille- gal inducements and material misrepresentations which disturbed the laboratory conditions under which the election was to have taken place, as well as other improper conduct. The Union's objections are meritorious to the extent that I have heretofore found that the Company engaged in unfair labor practice conduct during the critical period between the filing of the election petition on August 7 and the Board-conducted election on September 3. In Enola Super Thrift Market, 233 NLRB 409, 409 (1977), the Board held: Our normal policy is to direct a new election when- ever an unfair labor practice occurs during the criti- cal period since "[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87 (1962). The only recognized exception to this policy is where the violations are such that it is virtually impossible to conclude that they could, have affected the results of the election. Applying the foregoing standard to the election in the present case, the election must be set aside by reason of the Company's,unlawful conduct. See Michigan Products, 236 NLRB 1143, 1146 (1978). The more difficult question is whether by reason of the Company's unlawful conduct, I should find that the Company unlawfully failed or refused to recognize and bargain with the Union and therefore, that a remedial bargaining order is warranted, The applicable standard is set forth in the landmark case of NLRB v. Gissel Packing Co., 395 U.S. 575, 613-615 (1969). In Gissel, the Supreme Court held as follows: Before considering whether the bargaining orders were appropriately entered in these cases, we should summarize the factors that go into such a de- termination. Despite our reversal of the Fourth Cir- cuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our posi- tion here and that of the Fourth Circuit is not large as a practical matter. While ,refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in "exceptional" cases marked by "outrageous" and "pervasive" unfair labor prac- tices Such an order would be an appropriate remedy for those practices, the court noted, if they are of "such a nature that their coercive effects cannot be eliminated by the application of tradition- al remedies, with the result that a fair and reliable election cannot be had." N.L.R.B. v. Logan Packing Co., 386 F.2d 562, 570 (C.A. 4th Cir. 1967); see also N.L.R.B. v. Heck's Inc., 398 F.2d 337, 338. The Board itself, we should add, has long had 'a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. See, e.g., United Steelworkers of America v. N.L.R.B., 126 U.S.App.D.C. 215, 376 F.2d 770 (1967); J. C. Penney Co., Inc. v. N.L.R.B., 384 F.2d 479, 485-486 (C.A. 10th Cir. 1967). The only effect of our holding here is to approve the Board's use of the bargaining order in. less ex- traordinary cases marked by less pervasive practices which nonetheless still have the tendency to under- mine majority strength and impede the election processes . The Board's authority to issue such an order on a lesser showing of employer misconduct is, appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course,, effectuating as- certainable employee free choice becomes as impor- tant a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past , effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair elec- tion (or a fair rerun) by the use of traditional reme- dies, though present,, is slight and that employee sentiment once expressed through cards would, on balance,, be better protected by a bargaining order, then such an, order should issue (see n. 32, supra). We emphasize that under the Board's remedial power there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order. There is, the Board says; no per se rule that the commission of any unfair practice will automatically result in a § 8(a)(5) violation and the issuance of an order to bar- gain . See Aaron Brothers, supra. Upon consideration of the evidence in this case, I find that the Company's unfair labor practices fall within the second category of cases described by the Supreme Court in Gissel, that the possibility of erasing the effects of such conduct by the use of traditional remedies is slight, and that the rights of the employees would be better protected by a remedial bargaining order than by a second election. In,arrivmg at this finding, I have taken into consideration pertinent Board decisions as well as decisions of the United States Court of Appeals for the Third Circuit. The factual context of the present case is comparable in its crucial aspects to that involved in RADIO BROADCASTING CO. Michigan Products, supra, in which the Board issued a re- medial bargaining order , In the recent case of United Oil Mfg. Co. Y. NLRB, 672 F.2d 1208 , 1212 5 (3d Cir. 1982), rehearing denied 110 LRRM 259 the court restated "the elements which we have often considered in determining whether a given bargaining order is proper ." Those ele- ments as spelled out by the court are: (1) "whether the objectionable conduct `was communicated to a signifi- cant percentage of employees in the bargaining unit"'; (2) "whether `the unfair labor practices involved senior com- pany officials"'; (3) "whether the unfair labor practices created `a psychological impact on all of the employees that is unlikely to dissipate"'; and (4) "whether `the em- ployer has demonstrated a history of opposition to union- ization."' The first element is present in this case . President Gross actually conducted meetings with four employees, including the two leading union adherents , who were ac- companied by two older employees . However, Gross simply used this ad hoc committee as a means of convey- ing his unlawful promises to all of the unit employees. Therefore, in substance , albeit not in form , Gross com- municated the objectionable promises to all the employ- ees. Gross also solicited grievances from individual em- ployees, and in one identifiable instance , impliedly prom- ised specific benefits. The second element is also present. All of the unfair labor practices were committed at the highest level of management , i.e., by President Gross, who was accompanied by his general manager . I further find that the third element is also present . Gross made promises which cut across the entire spectrum of em- ployee grievances . Indeed Gross did not stop at this point. He even initiated and promised another proposed benefit, i.e., increased vacation benefits. For all practical purposes, Gross converted the ensuing election campaign into an exercise in futility . When the employees met at Jody March's apartment , they did not rebuff Gross be- cause of lack of satisfaction with the substance of his promises. Rather they simply indicated that they did not trust him to keep his promises. If matters had ended on this note, I might seriously question the propriety of a remedial bargaining order . Compare NLRB v. K & K Gourmet Meats, 640 F.2d 460, 470 (3d Cir. 1981). How- ever, Gross promptly implemented several of his prom- ises, thereby indicating to the employees that he meant what he said. In the present case, the unfair labor practices consist entirely of promises of benefits , redress of employee grievances, and grants of benefits. Such unlawful con- duct is particularly difficult to remedy by traditional means. See Michigan Products, supra. If an employer dis- criminatorily deprives employees of their benefits, the Board may direct restoration of those benefits and that the employees be made whole for their losses. However, the Board does not punish the employees by depriving them of benefits which were granted in order to discour- age support for the union . The Board will only enjoin future violations . Thus it is difficult to dissipate the ef- fects of the unlawful conduct , particularly where as here the employer has dealt with the whole range of employ- ee grievances. Rather, the employer has given the em- ployees an object lesson in the futility of exercising their 1125 self-organizational rights. I do not interpret NLRB v. K & K Gourmet Meats, supra, principally relied on by the Company (Br. 10), as standing for the proposition that a remedial bargaining order is inappropriate in cases where the unfair labor practices consist entirely or substantially of promises and/or grants of benefit. The gravity of unfair labor practices is not mitigated , for Gissel pur- poses, because the employer kills employee rights with kindness . As the Supreme Court pointed out in NLRB Y. Exchange Parts Co., supra, 375 U.S. at 409: The danger inherent in well-timed increases in bene- fits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now considered is also the source from which future benefits must flow and which may dry up if it is not obliged. In K & K, as determined by the court, the unfair labor practices consisted of promises of benefit. However, for Gissel purposes K & K is distinguishable on its facts from the present case in crucial respects . First, as held by the court in K & K, 640 F.2d at 46, the "record will not sup- port a finding that [the employer] made specific promises to remedy grievances , for it does not appear that any complaints were actually tendered ." In the present case, the Company solicited specific grievances , received such grievances , and made specific promises covering the range of wages and working conditions. Second, the court observed in K & K, 640 F.2d at 470, that the em- ployees were not much impressed by the employer's speech because "they collectively decided that his repre- sentations were not to be believed ," and they struck. In the present case, the employees also reached such a col- lective decision. However, in the present case, unlike K & K, the employer, at a crucial time , unlawfully granted certain of the promised benefits, thereby demonstrating that he intended to follow through on his promises.16 The fourth and final element restated in United Oil, supra, is "whether `the employer has demonstrated a his- tory of opposition to unionization."' In the present case, there is no prior history of organizational effort and therefore no history of employer opposition to unioniza- tion. However, in United Oil, the court did not regard the absence of this factor as crucial , and enforced the Board's bargaining order notwithstanding such absence. In sum , I find that the Company engaged in unfair labor practices which tend to destroy the conditions for a fair election, and therefore that a remedial bargaining order is warranted.' " 16 In K & K and in other cases , the Third Circuit attached weight to the findings of the administrative law judge . However, that is a matter to be considered by the reviewing authority 1° The Company argues (Br. 38) that the Union may have lost the election because employees were "turned off' by certain union propagan- da. However, such speculation does not constitute a part of the Gissef analysis See Michigan Products , supra, 236 NLRB at 1147 Rather, as in- dicated, the essential question is whether the employer has engaged in unlawful conduct which tends to destroy the conditions for a fair elec- tion . The Company also attaches significance to certain testimony by em- ployee Joan Ranieri Ranieri testified without contradiction that on August 13 Len March said , "they told us to go into the meeting and let Continued 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that as of August-12 the Union was the designat- ed collective-bargaining representative of the employees in the appropriate unit, and that a bargaining order is warranted. The bargaining order dates from August 12, when the Company commenced its campaign of unlaw- ful conduct. I further find that Shop Manager Joseph Volpe, Head Bookkeeper Joanne Billingsley, and Office Manager Anne Weinstein, notwithstanding their titles, are rank-and-file employees and are included in the bar- gaining unit. 1 s As previously discussed, Gross and his father maintained close control over the Company's day- to-day operations, and Gross personally reserved discre- tion over the most minute aspects of its personnel prac- tices. Gross was even reluctant to extend discretionary authority to his new general manager, and he did so only out of sheer necessity. As a result of this method of oper- ation, personnel below the level of the general manager were not given discretionary supervisory authority. Volpe actually functioned as a dispatcher. He assigned routes to drivers, but he did so in a routine manner. Volpe did not decide whether additional drivers were needed or whether they should be asked to work over- time; rather these decisions were made by Gross and Wallace. Occasionally Volpe performed driving or me- chanical work.19 Billingsley, together with assistant bookkeeper Helen Townsend, maintained payroll records. However, they did so in accordance with the in- structions of Gross, Wallace, and the Company's outside accountant. They did not personally decide whether em- ployees would be paid for nonworking time, e.g., that they would receive sick leave. Those decisions were made by Gross and sometimes by Wallace. Employees might call in and tell Billingsley that they were not coming in to work. However, this constituted notifica- tion' rather than a request for leave. The real decision, i.e., whether they would be paid for nonworking time, was made by Gross or Wallace. Billingsley and Town- send normally divided their work. Sometimes Billingsley decided which of them would do certain work. Howev- er, this authority derived from Billingsley's greater length of service and expertise. Anne Weinstein is Wil- liam Gross' aunt (Leon Gross' sister). She worked in the office, was paid a salary commensurate with her duties, and performed work similar to that of other clericals. Most of her work consisted of processing accounts for a subsidiary of the Company. Weinstein sometimes as- signed work to other clericals. However, as with Bil- lingsley, her authority in this regard derived from her greater expertise and length of service. None of the three (Volpe, Billingsley, and Weinstein) was involved in the disciplinary process. The evidence fails to indicate that they hired, fired, disciplined, rewarded employees, or ef- Bill hang himself" March was not an agent of the Union (he was not even an employee) and his statements are not binding on the Union Whether or not Gross figuratively hung himself is a matter to be deter- mined on the basis of his own statements and actions 1e Their titles are as indicated in the Company's personnel records In light of these records, I do not credit the testimony of president Gross to the effect that they were actually given different titles 19 The General Counsel's assertion that Volpe is a supervisor was handicapped by the fact that the General Counsel failed to produce a single employee witness who worked directly with or under Volpe to testify concerning his functions fectively recommended such action. Their authority, beyond their performance of unit work, substantially consisted of routine assignment of work to other employ- ees. I find that none of the three are supervisors within the meaning of the Act. I further find the Weinstein shares a community of interest with the other employees by reason of her substantial performance of unit work, notwithstanding her relation to Gross. See Bogalusa Motors, 107 NLRB 97, 100 (1953), citing International Metal Products Co., 107 NLRB 65, 66-67 (1953). There- fore Volpe, Billingsley, and Weinstein are included in the bargaining unit. D. Additional Alleged Violation of the Company's Bargaining Obligations Shortly after the Board-conducted election, the cleri- cal employees met and elected employees Alice Lloyd and Joan Ranieri as a grievance committee.20 Lloyd tes- tified that after the meeting General Manager Wallace congratulated her on her election. Wallace denied doing so. Both Gross and Wallace denied knowledge of the grievance committee. However, DeAcosta obtained per- mission from Wallace to conduct the meeting on compa- ny premises Wallace, in his testimony, admitted that he assumed that the meeting "had to do something with the labor situation." I 'credit Lloyd, and I find that the Com- pany knew that the clerical employees had elected a grievance committee consisting of Lloyd and Ranieri. Shortly after this meeting the clerical employees heard that a former employee named Doreen might be return- ing to work for the Company. They were unhappy about this, as they had not gotten along with Doreen. They re- garded her as a troublemaker. Lloyd and Ranieri so in- formed Manager Wallace. According to Lloyd, Wallace said he would talk to Gross and get back to them. About a day later Wallace told them there was no possibility of Doreen being hired. Ranieri testified that Wallace said they were not going to hire anyone. Wallace testified that Doreen never applied for work, that he did not know her, that the Company was not hiring at that time, and that he so informed Ranieri and Lloyd. The evi- dence fails to indicate that the Company hired any cleri- cal employees during this period. Wallace testified that he also talked to Ranieri and Lloyd concerning technical aspects of their work. The evidence fails to indicate that they talked about any other matter I find that the evidence fails to establish that the Com- pany violated Section 8(a)(5) by bypassing the Union and dealing directly with the unit employees. The selection of new employees is not a negotiable matter between a union and an employer, except within the limitations of Section 8(f) of the Act, covering hiring halls in the build- ing and construction industry. See Radio Officers v. NLRB, 347 U.S. 17, 52 (1954). Section 9(a) of the Act does provide that the bargaining representative must be 20 The General Counsel's witness, Lloyd, testified that Gary DeAcosta conducted the meeting Company witness Ranieri testified that Joanne Billingsley did so As neither DeAcosta nor Billingsley was a supervisor, it is immaterial which one did so The most likely explanation is that DeAcosta, who suggested a grievance committee, initiated the meeting and then turned it over to Billingsley RADIO BROADCASTING CO given an opportunity to be present at the adjustment of grievances between the employer and individual employ- ees or groups of employees. However, the present matter did not rise to the level of an adjustment of a grievance. Rather, the Company simply informed the employees of its current policy, namely, that the Company was not then hiring. Therefore I am recommending that this alle- gation of the complaint be dismissed. CONCLUSIONS OF LAW I. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All clerical employees, technical employees, sales persons and drivers employed by the Company at its Philadelphia, Pennsylvania location, but excluding all guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act, by expressly or impliedly promising wage increases and other benefits and improvements in terms and conditions of employment, redress of specific grievances, and recognition of an employee grievance committee, by soliciting employee complaints and griev- ances and thereby making such promises, and by grant- ing such benefits, improvements, and redress of griev- ances, all in order to discourage support for the Union. 5. By the conduct set forth in paragraph 4 above, the Company interfered with the employees' freedom of choice in the election conducted on September 3, 1981, and precluded any reasonable possibility of a fair and un- coerced rerun election. 6. Since August 12, 1981, the Union has been and is, the exclusive collective-bargaining representative of the Company's employees in the unit described above. 7. By failing and refusing since August 12, 1981, to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the above appropriate unit, the Company has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act 9. The General Counsel has failed to prove that the Company violated the Act in any other manner. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (5) of the Act, I shall recom- mend that it be required to cease and desist therefrom and from in any like or related manner infringing upon the rights guaranteed its employees in Section 7 of the Act As heretofore found, affirmative relief is also appro- priate here. I shall direct the Company to recognize and to bargain collectively, on request, with the Union as the exclusive bargaining representative of the employees in the unit found appropriate herein, and to embody any understanding reached in a signed agreement. The reme- 1127 dial order will also include the, customary provisions re- lating to the posting of notices and related matters. Finally, I shall recommend that the election in Case 4- RC-14809 be set aside and,, in view of the bargaining order entered herein, that Case 4-RC-14809 be dis- missed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed21 ORDER The Respondent, Radio Broadcasting Co., Philadel- phia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Expressly or impliedly promising wage increases or other benefits or improvements in terms and conditions of employment, or redress of grievances or recognition of an employee grievance committee, in order to dis- courage support for Teamsters Local No. 115, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America or any other labor or- ganization. (b) Soliciting employee complaints and grievances„ and thereby making such promises, in order to discourage support for the Union. (c) Granting benefits or other improvements in terms and conditions of employment, or rediessing grievances, in order to discourage support for the Union; provided, however, that nothing herein shall be construed as re- quiring the Respondent to vary or abandon any econom- ic benefit or any term or condition of employment which it has heretofore established (d) Refusing to recognize or bargain collectively with the Union as the exclusive collective-bargaining repre- sentative of its employees in the following appropriate unit: All clerical employees, technical employees, sales persons and drivers employed by Respondent at its Philadelphia, Pennsylvania location, excluding all guards and supervisors as defined in the Act. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively in good faith with the above-named Union as the exclusive bargaining representative of the employees in the unit described above, and embody in a signed agreement any understanding reached. (b) Post at its office and place of business in Philadel- phia, Pennsylvania, copies of the attached notice marked 21 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Appendix."22 Copies of, the notice, on forms provided by the Regional Director , for Region 4, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- 22 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor, Relations Board " shall read "Posted Pursuant to a Judgment of the United ,States Court of Appeals Enforcing an Order of the National Labor Relations Board." uous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the election in Case 4- RC-14809 be set aside and that the proceeding be dis- missed. Copy with citationCopy as parenthetical citation
