Russell Stover Candies, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1975

221 N.L.R.B. 441 (N.L.R.B. 1975)

RUSSELL STOVER CANDIES, INC. 441
Russell Stover Candies, Inc. and Bakery and Confec-
tionery Workers International Union of America,
Local Union No. 72, AFL-CIO-CLC. Cases 27-
CA-4163 and 27-RC-4748
November 7, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On April 9, 1975, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and supporting
briefs, and Respondent filed a brief in support of the
Administrative Law Judge's Decision and an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
Respondent is engaged in the manufacture and sale
of candy at five plants. This case concerns Respon-
dent's Montrose, Colorado, plant, which opened
about December 1, 1973.
The Union began an organizational campaign at
the Montrose plant in early 1974 and on'March 25,
1974, filed a representation petition which resulted in
an election, held on June 14, which it lost.
The Administrative Law Judge recommended that
the complaint be dismissed in its entirety and the
objections to the election be overruled. We find merit
in a substantial number of the exceptions to the
Administrative Law Judge's Decision filed by the
General Counsel and the Charging Party. In revers-
ing certain findings of the Administrative Law Judge,
we have found it necessary not only to reverse some
of his legal conclusions but also to reject some of his
credibility findings. It is well established that the
Board is very reluctant to overturn the credibility
findings of an Administrative Law Judge. Standard
Dry Wall Products, 91 NLRB 544 (1950). However,
in certain matters herein and as set out below, we
have concluded that a clear preponderance of all the
relevant evidence establishes that the Administrative
Law Judge's credibility resolutions were incorrect
and without proper support in the record. According-
ly, in these unusual circumstances, we are compelled
to make our own findings of fact and appropriate
221 NLRB No. 73
conclusions based on substantial evidence in the
record.
1. The withholding of wage increases and
telling employees that Respondent could not
give wage increases because of the Union
On or about April 29, 1974, Respondent changed
and increased its wage progression schedule at all its
plants except the Montrose plant. Respondent Vice
President Rolff admitted that the wage increases
given at the Marion and Clarksville plants would
have been given at Montrose but for the presence of
the Union. Further, Respondent President Ward told
employees about the raises at the other plants and
informed employees that the wage progression
changes were not made at Montrose in order to
avoid an appearance of trying to influence the
election.
The Administrative Law Judge found that the
General Counsel failed to meet his burden of proving
that Respondent withheld wage increases because of
the union campaign. We disagree. Board cases have
made it clear that an employer, when confronted by
a union organizing campaign, must proceed as it
would have done had the union not been conducting
its campaign. See, e.g., Gerbes Super Market, Inc., 213
NLRB No. 112 (1974); The Gates Rubber Co., Inc.,
182 NLRB 95 (1970). Here, as admitted by Respon-
dent's officials, employees at Montrose would have
received an improved wage progression scale but for
the presence of the Union and employees were so
informed. Therefore, having altered its normal
course of action and having withheld a wage benefit
because of the presence of the Union, Respondent
engaged in actions violative of Section 8(a)(1) of the
Act. It is no defense for Respondent merely to assert
that it wished to avoid the appearance of trying to
influence the election. There was no basis for
Respondent's assertion, and the Union made it clear
to Respondent, prior to the election, that it regarded
the granting of the increase as the proper course. In
these circumstances, we conclude that Respondent
sought to shift to the Union the onus for the
withholding of the increases.
Further, regarding employee John Harris, we find
that Respondent withheld his wage increase in
violation of Section 8(a)(1) of the Act. From the
record, it is clear that Harris was due a raise after 120
days on the job. While Harris received merit
increases, we find that under Respondent's system
merit increases are not given in lieu of or in
substitution for an employee's regularly due wage
increase. Also, contrary to the Administrative Law
Judge, we find that Harris was told by Supervisor
Sharon that because of the union activity Respon-
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent could not give its regular wage increases. Harris
testified that Sharon informed him that he could not
receive his increase because of the union activity, and
Sharon, while not specifically recalling the incident,
admitted it might have occurred. In light of Sharon's
not having denied the incident and further in light of
the general pattern in which employees were told by
Respondent's officials that increases could not be
given because of the Union, we find that the
conversation, as testified to by Harris, took place. On
this evidence, we conclude that Respondent withheld
from Harris a wage increase he would have received
but for the union campaign. Respondent's withhold-
ing of Harris' wage increase thus violated Section
8(a)(1) of the Act.
There are numerous similar instances in the record
where employees were informed that they were not
receiving raises because of the union campaign.
Rolff, in confirming the words in a document
prepared by Respondent after one of its meetings
with employees, admitted that employees were told
that Respondent was limited by the union campaign
in the adjustment of its wage scale. Respondent
President Ward admittedly told employees that
Respondent had not changed its wage progression
rate as at other plants so as to avoid an appearance
of trying to influence the election. In certain
instances , Respondent asserts that its officials,
especially Plant Manager McKie, told employees
only that it would be a violation of the law for
Respondent to grant wage increases. Respondent's
statements (even accepting its version of the words
used in some of the conversations) could only lead
employees to assume that the Union stood in the way
of their getting the wage increases, and Respondent
did nothing to dissipate that assumption. According-
ly, Respondent's statements were violative of Section
8(a)(1) of the Act. See Pacific Southwest Airlines, 201
NLRB 64 (1973).
2. Threats to close the plant
The complaint alleged that Respondent impliedly
threatened to close the plant . We cannot agree with
the Administrative Law Judge 's conclusion that
Respondent did not impliedly threaten to close its
plant and engaged only in lawful free comment.
During the preelection campaign , Respondent, in
numerous communications to employees , stated that
other candy plants had closed after being organized
by a union . In his speech of May 30, Rolff told
employees:
There are only two instances where unions were
successful in organizing the Russell Stover em-
ployees. One was in our Kansas City, Missouri
plant which is now closed and the other was a
group of truck drivers based in our Kansas City
shopping center. The experience of the truck
drivers is interesting. They voted for the Team-
sters Union and after lengthy negotiations the
contract was agreed upon. Long before the end of
the contract, the employees were dissatisfied with
the union, but they were stuck until the contract
came to an end. At the earliest opportunity near
the end of the contract, the employees filed for
another election and they voted the Teamsters
out.
Thereafter, in a letter to employees dated June 5,
Respondent stated, in part, as follows:
We also understand that the Union claims to be
an expert in the candy business. What we would
like to know is, experts in what? Were they
experts in Kansas City? Were they experts at Loft
candies and Barracini candies, which we under-
stand are virtually out of business, and how about
all the other candy plants that had one union or
another and are now closed, such as: The George
Ziegler Company in Milwaukee, Wisconsin;
MacFarland's, Oakland, California; Safeway
Stores Candy Division, San Jose, California;
Fanny Farmer Candy Company, Cambridge,
Mass. plant; Fanny Farmer Candy Company,
Minneapolis, Minn. plant; Howard Johnson
Candy Division, Boston, Mass.; Hollywood
Brands Candy Division, Sulphur Springs, Texas;
Foramir Candy Corp., New York, N. Y., Martha
Washington Kitchens, Inc., Chicago, Illinois; and
the Andes Candy Inc., Chicago, Illinois.
We are not saying that these plants closed simply
because they had a union, but the facts are they
did close. Unions may be experts all right-
perhaps experts in organizing, and making prom-
ises and in getting part of your pay check, but
their record does not show they are experts in
keeping candy plants open.
Rolff testified that after his speech of May 30 and
in response to an employee's question he stated as
follows: "The Kansas City plant was not closed
because it formed a union. The plant was in a poor
downtown location, with outdated equipment and it
was no longer profitable." However, the employee's
question makes it obvious that Rolff's speech
generated fears of plant closure among the employ-
ees. Furthermore, regardless of whether we were to
find that Rolff s statement cured the implied threat
to close the plant in his speech of May 30, it is clear
there was no disavowal of the implied threat of plant
closure in Respondent's June 5 letter. In a context of
an organizing campaign where numerous violations
of Section 8(a)(1) occurred and where the Respon-
RUSSELL STOVER CANDIES, INC. 443
dent was admittedly aware of rumors of plant
closure, w;, conclude that Respondent's statements
made in its June 5 letter did encompass implied
threats to close the plant should the employees
choose the Union and that Respondent made the
likelihood of plant closure a recurrent theme of its
antiunion campaign.'
An employer is free to communicate to his
employees any of his general views about unioniza-
tion or his views about a particular union, so long as
the communications do not contain a threat of
reprisal or force or promise of benefit. However,
under the circumstances in this case, Respondent's
statements were not predictions carefully phrased on
the basis of objective fact but rather were not-so-
subtle threats that unionization would lead to plant
closure. See, e.g., Components, Inc, 197 NLRB 163
(1972). Accordingly, we find that Respondent's
references in the course of its antiunion campaign
relating to possible plant closure violated Section
8(a)(1) of the Act.
3. Interrogating employees concerning their
union activities and views
Eight employees testified as to their preemploy-
ment interviews conducted by Respondent and as to
the questions and statements made therein by
Respondent Personnel Director Setzer. The Adminis-
trative Law Judge rejected the testimony of seven of
these witnesses (though, in fact, the testimony of the
seven was consistent with that of the eighth) and, in
effect, must have concluded that the testimony of
these witnesses was totally contrived. In light of the
evidence clearly preponderating in favor of the
testimony of these witnesses and further in view of
the Administrative Law Judge's unwarranted reli-
ance on matters not in evidence in making his
credibility resolution on this issue , we are compelled
to reverse his findings. The Board, although reluctant
to overturn any credibility finding of an Administra-
tive Law Judge, has the responsibility under Section
10(c) to make appropriate determinations of fact,
and we cannot rely on an Administrative Law
Judge's findings when they are clearly erroneous and
improperly based on matters not before us.
The Administrative Law Judge concluded that
Respondent could not have made use of its
"welcome pamphlet" before March 20, 1974, and
therefore concluded that the testimony of Personnel
i Thus in another speech to employees Rolif told them
We had a miserable experience with the union in our former Kansas
City plant We know the problems about trying to operate with a
union-things that cost us money , cost us production and make it more
difficult to sell our product at a competitive puce-but things that
didn't put one penny into the pockets of our Kansas City employees
Director Setzer should be credited and the testimony
of seven other witnesses, testifying contrary to Setzer,
discredited. The "welcome pamphlet" contains a
section in which is stated Respondent's opposition to
labor organizations Eight witnesses, in substance,
testified that during their preemployment interviews,
Setzer referred them to Respondent's statement
about unions and solicited their views about unions
and Respondent's position on unions. Concluding
that Respondent did not use its welcome pamphlet
before March 20, 1974, the Administrative Law
Judge discredited the testimony of the seven witness-
es whose interviews took place prior to March 20,
1974. The Administrative Law Judge based his
credibility resolution as to use of the pamphlet on a
finding that a notation on the back of the welcome
pamphlet indicated it was punted in December 1973
and on a receiving department invoice allegedly
showing that the first shipment of the pamphlets was
received at the Montrose plant in March 1974.
However, we note that Respondent offered no
invoice as evidence and no such document was
received into evidence. Accordingly, we cannot rely
on any invoice as supporting the Administrative Law
Judge's credibility resolution. Further, the fact that
the document was printed in December 1973 is not
inconsistent with the testimony of the seven witnesses
discredited by the Administrative Law Judge. Also,
we find it significant that a virtually identical
pamphlet was punted for Respondent in July 1973.
The Administrative Law Judge credited Setzer's
testimony that the earlier pamphlet was not distribut-
ed to employees and stated, "the General Counsel
did not refute this by producing any booklets
distributed prior to March 1974 containing a July
1973 printing imprint."
We cannot agree with the Administrative Law
Judge's evaluation of the evidence. The documentary
and objective evidence does not support Setzer's
testimony. Certainly, the testimony of seven witness-
es and their ability to identify the welcome pamphlet
strongly supports the conclusion that some pamphlet
was used by Respondent as early as December 1973
and refutes Respondent's contention that March 20,
1974, was the initial date for using any pamphlet. In
contrast to the compelling evidence adduced by the
General Counsel, we note that Setzer's testimony in
this regard is suspect. When the Board investigator
interviewed Setzer and took his statement, Setzer, in
describing Respondent's interview process and book-
These are reasons why we are opposed to a union and these are some of
the reasons why we are in Montrose , Colorado today
And in a letter to employees dated June 11, 1974
Remember , it is yourJob that may be affected by having a union in this
plant-and it is your family that is dependent upon your paycheck
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
let, made no mention of there being two different
booklets or that no booklet was distributed prior to
March 20, 1974.
Finally, we note that the testimony of the seven
witnesses discredited by the Administrative Law
Judge is remarkably similar to that of employee
Jackson, credited by the Administrative Law Judge.
Jackson testified, and Setzer admitted, as to her, that
he, in the preemployment interview, showed employ-
ee Jackson the welcome pamphlet, invited her
attention to Respondent's statement regarding
unionism, and then asked if she had any questions.
Based on the above and our careful review of the
record, we find that Respondent did make use of its
welcome booklet prior to March 20, 1974, and that
Respondent in its preemployment interviews of
employees Harris, Baca, Latta, Sparr, Godsey,
Suchor, Bergerello, and Jackson solicited their views
concerning union representation and Respondent's
views on union representation.2
The Board has held that questions concerning
union preference, in the context of ajob application
interview, are inherently coercive even without
accompanying threats and are therefore violative of
Section 8(a)(1) of the Act. See, e.g., Bendix-Westing-
house Automotive Air Brake Co., 161 NLRB 789
(1966). We note that Respondent's preemployment
interviews of employees Bergerello and Jackson took
place at a time when Respondent was aware of a
union organizational campaign. Setzer admitted that
he became aware of union activity about the middle
of February 1974, and Bergerello's interview took
place in March 1974 and Jackson's in April 1974.
Respondent contends that its employment interviews
were fully lawful because its personnel director did
not direct the employees' attention to the part of the
welcome pamphlet containing the Company's posi-
tion concerning a labor organization until after he
had indicated that the employee would be hired. The
Board has held that company interrogations, concern-
ing union membership during a job interview are
not made lawful by the applicants being subsequent-
ly hired. Here, where Respondent was soliciting the
applicants' union preference prior to their beginning
work and soliciting such views in the context of a
union campaign, we must conclude that Respon-
dent's interrogations did tend to interfere with,
coerce, and intimidate employees in their right to
engage in union activities under Section 8(a)(1).
2 Though the employment interviews of Harris, Baca, Latta, and Span
took place outside the 10(b) period and are thus not a proper basis for
finding violations of the Act, we nonetheless shall consider the testimony of
these four witnesses as proper background evidence explaining later events
and establishing the patterns of Respondent's procedures
Respondent also contends that the interviews of employees Godsey and
Suchor were also outside of the 10(b) period because prior to the issuance of
the complaint no formal allegation had been made regarding unlawful
Respondent also notes that Jackson admittedly was
told by Setzer that he could not influence her vote in
any upcoming union election. However, we find that
Setzer's statement did not cure the unlawfulness of
his solicitation of Jackson's views coupled with his
own statement that unions cause trouble. In the
circumstances of this case, we conclude that Setzer's
conduct in his preemployment interviews of employ-
ees Bergerello and Jackson restrained employees in
the exercise of their protected rights and violated
Section 8(a)(1) of the Act.
The Objections
Based on our findings herein , we shall sustain
Petitioner 's Objections 7, 8, and 9 and set aside the
election conducted in Case 27-RC-4748 on June 17,
1974. We shall remand the case to the Regional
Director for Region 27 to conduct a new election
when he deems the circumstances permit a free
choice of a bargaining representative.
THE REMEDY
We have found, contrary to the Administrative
Law Judge, that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the
Act. It is necessary, in order to effectuate the
purposes of the Act, that Respondent be ordered to
cease and desist from engaging in such unlawful
activity.
Having found that Respondent unlawfully with-
held wage increases because of the union campaign,
we shall order it to pay its employees such increases
retroactively, with interest at 6 percent per annum,
computed as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
The General Counsel, in addition to requesting the
usual remedies, requests the extraordinary remedy of
ordering Respondent President Ward to sign the
Board's notice and to read personally any notice
issued in this case at assembled meetings where all
employees can be informed of the outcome of these
proceedings. Based on our findings herein, we find
that the circumstances are not sufficient to warrant
the extraordinary remedy requested by the General
Counsel and we accordingly deny it.
interrogations of employees We need not pass on Respondent's contention
because our finding herein may properly be based on the employment
interviews of Bergerello and Jackson which were clearly within the 10(b)
period In any event, we may view the Godsey and Suchor testimony as
proper background explaining later events and establishing the pattern of
Respondent's procedures Any findings based on the interviews of Godsey
and Suchor would be cumulative and unnecessary
RUSSELL STOVER CANDIES, INC. 445
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning
of the Act.
2. By telling employees that the Company could
not give wage increases because of the union
campaign and by withholding wage increases from
employees because of the union campaign, Respon-
dent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. By threatening to close the plant if the
employees selected the Union as their collective-
bargaining representative, Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By interrogating employees during preemploy-
ment interviews concerning their union preferences
and views, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Russell Stover Candies, Inc., Montrose, Colorado, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling employees that Respondent cannot give
wage increases because of the Union and withhold-
ing wage increases from employees because of the
union campaign.
(b) Threatening to close the plant if the employees
select the Union as their collective-bargaining repre-
sentative.
(c) Interrogating employees concerning their union
preferences and views.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Pay to employees at the Montrose, Colorado,
plant, with 6 percent interest, the wage increases they
would have received in April 1974 but which were
withheld because of the union campaign; and pay to
John Harris, with 6 percent interest, the raise that
was withheld because of the union campaign.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Montrose, Colorado, plant copies of
the attached notice marked "Appendix." 3 Copies of
said notice, on forms provided by the Regional
Director for Region 27, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS ALSO ORDERED that those portions of the
complaint found to be without merit are hereby
dismissed.
IT IS FURTHER ORDERED that the election conducted
in Case 27-RC-4748 on June 17, 1974, be, and it
hereby is, set aside, and that said case be, and it
hereby is, remanded to the Regional Director for
Region 27 to conduct a new election when he deems
the circumstances permit a free choice of a bargain-
ing representative.
[Direction of Election and Excelsior footnote
omitted from publication.]
3 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Coui t of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL pay to all employees at our Montrose,
Colorado, plant the wage increases we withheld
from them in April 1974, with 6 percent interest.
WE WILL pay to John Harris the wage increase
we withheld from him in April 1974, with 6
percent interest.
WE WILL NOT withhold wage increases granted
at our other plants from our employees at our
Montrose, Colorado, plant because of union
activities.
WE WILL NOT tell employees that we cannot
give planned wage increases because of union
activity.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to close our Montrose,
Colorado , plant should our employees select a
union as their bargaining representative.
WE WILL NOT during preemployment interviews
solicit the views or preferences of prospective
employees as to labor organizations.
WE WILL NOT in any other manner interfere
with , restrain, or coerce our employees in the
exercise of the rights guaranteed in Section 7 of
the National Labor Relations Act.
You are free to become or remain members of
Bakery and Confectionery Workers International
Union of America , Local Union No. 72, AFL-CIO-
CLC, or any other labor organization.
RUSSELL STOVER,
CANDIES, INC.
DECISION
ments if the employees did not select the Union as their
collective-bargaining representative; (5) telling employees
the Company could not give wage increases because of the
Union; and (6) withholding wage increases from employ-
ees during the preelection campaign.
The Company denied committing the acts alleged, any
violation of the Act, or any misconduct affecting the
election.
The issues are whether the Company committed the
alleged acts and, if so, whether by such commission the
Company violated the Act and committed misconduct
sufficient to warrant setting aside the election.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, and argue and file briefs.
Briefs have been received from the General Counsel and
the Company.
Based on my review of the entire record,5 observation of
the witnesses, perusal of the briefs and research, I enter the
following:
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
October 30 and 31 and November 1, 1974,3, I conducted a
hearing at Montrose, Colorado,to try issues raised by the
Union's objections to alleged conduct by the Company
affecting the election in Case 27-RC-4748 and companion
issues raised by a complaint4 issued on July 30 on the basis
of a charge filed on June 17 by the Union.
With regard to the representation proceeding, the
petition was filed by the Union on March 25; a notice of
hearing on the petition was issued on April 1; the hearing
was held on April 10; the Decision and Direction of
Election issued on May 21; the election was held on June
17 (the Union lost); on June 18, the Union filed objections
to the election based on alleged employer misconduct
affecting the election; on August 13 an order was issued
dismissing the Union's Objections 1, 2, 3, 4, and 6 and
directing a hearing on Objections 5, 7, 8, and 9.
On August 13, as part of the same order, it was directed
that a consolidated hearing be conducted on the latter
objections and the issues raised by the July 30 complaint,
inasmuch as the same parties and issues were involved.
The August 13 order also directed that I resolve any
credibility issues raised by the objections, issue fmdings of
fact thereon, and issue recommendations to the Board
concerning disposition of the objections as well as the
issues raised by the complaint.
The complaint and objections allege that the Company
violated Section 8(a)(1) and (3) of the Act by:
(1) Interrogating employees concerning their union
membership, activities and views; (2) requesting employees
to persuade other employees not to support the Union; (3)
threatening to close the plant if the employees selected the
Union as their collective-bargaining representative; (4)
promising employees wage increases and other improve-
3 Read 1974 after all further date references omitting the year
4 The complaint was amended on August 13 and October 30 to reflect
additional alleged conduct of the Company violating Section 8(a)(1) of the
Act.
5 The General Counsel's posthearing motion to correct the transcript -
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
that at all times pertinent the Company was engaged in
commerce in a business affecting commerce and the Union
was a labor organization, as those terms are defined in
Section 2(2), (5), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES AND
MISCONDUCT
A. Background
The Company for a good number of years has been
engaged -in the manufacture and sale of candy. The
Montrose, Colorado, plant is the newest of its plants,
commencing production December 1, 1973. At that time
there were four other plants in operation.
Beginning sometime in early 1974, the Union conducted
an organizational campaign among the Company's Mont-
rose employees which resulted in the filing of the March 25
representation petition. As recited heretofore, an April
hearing on the representation petition was held-, an order
directing an election issued on May 21 and an election was
held on June 14 which resulted in a union loss.
The alleged acts on which the complaint and objections
were based shall be taken up seriatim.
B. Virgil G. Setzer
The complaint and objections allege that Virgil G.
Setzer6 on December 18, 1973, questioned an employee
about his union views and on December 18, 1973, January
8, a date in late January, and April 17 required applicants
by inserting the name "Sharon " for "Charron" and the name "Godse" for
"Godsey," wherever either of those names appears - is granted.
6 Admittedly the Montrose plant personnel manager and a supervisor
and agent of the Company acting on its behalf at all times pertinent
RUSSELL STOVER CANDIES, INC. 447
for employment to read a statement on the last page of a
company booklet, 7 solicited their views concerning union
representation, and only then informed them whether or
not they would be hired.
The General Counsel introduced testimony by eight
employees in support of this complaint allegation and
election objection.
Employee John Harris testified he was interviewed by
Selzer for a job on December 10, 1973; that Selzer handed
him the booklet earlier identified, asked him to read the
last page and, on completion, asked him if he agreed with
the Company's position, and that he replied affirmatively.
He testified that Setzer then told him he was hired.
Employee Margaret Baca testified she also was interviewed
by Selzer on December 10, 1973; Selzer asked her to read
the last page of the booklet and, on completion, asked her
if she had 'any questions, and that she replied in the
negative ; Selzer then asked her to start work the following
morning and she agreed. Employee Susann Latta testified
she was interviewed by Selzer for employment in early
December 1973; Setzer told her there was a possibility a
union would try to organize the plant, the employees did
not need a union, and then asked her to read the last page
of the booklet, which she did. She testified she subsequent-
ly filled out a W-4 form and went to work the next day.
Employee Raymond Sparr testified he was interviewed by
Setzer on December 17, 1973; Selzer handed him the
booklet and asked him to read the last page; he and Setzer
discussed unions ; he told Selzer he belonged to several
good unions and unions are needed in some situations;
Setzer asked him if he thought a union was needed at
Stover; and he replied he didn't know, since he had not
worked at Stover as yet. Employee Chris Godsey testified
she was interviewed by Setzer on December 31, 1973;
Selzer asked her to read the last page of the booklet and
she did so; Selzer offered, and she accepted a job prior to
reading the booklet, and they discussed the dress code, her
wage rate , company policies, etc., prior to her reading the
booklet. Employee Josephine Suchor testified she was
interviewed by Selzer on about January 7; that Setzer
asked her to read the last page of the pamphlet earlier
identified and she did so; Setzer then asked her what she
thought about the Company position concerning union
representation and she replied she was interested in a job
and not interested in anything about unions; and she was
then offered (and accepted) a job. On cross-examination,
however, she testified she and Selzer discussed her wage
rates and working conditions and she accepted his offer of
a job prior to the time he asked her to read the booklet.
Employee Gary Bergerello testified he was interviewed by
Setzer on approximately March 4; Setzer asked him to read
the last page of the booklet; after he read it, Setzer asked
him if he had any questions; and he replied he did not.
Bergerello testified he was asked to read the booklet after
he was hired. Employee Yvonne Jackson testified she was
r The pamphlet was entitled "Introducing Russell Stover Candies", it
contained a message of welcome from the president, set forth the
Company's policies concerning hours, lunch and rest breaks, attendance,
cleanliness , telephone use, first aid, paid holidays and vacations, group
hospitalization, surgical and life insurance coverage, employee discounts,
dress requirements, and the Company's position regarding union represen-
tation of its employees The latter appeared on the last page.
interviewed by Selzer on April 16; in the course of the
interview Selzer handed her the pamphlet earlier identified
and requested her to read the last page which she did;
Selzer asked her if she had any questions, that she replied
she did not, because she did not know anything about
unions; Setzer stated unions can and usually do cause
trouble; she told Setzer she would probably vote against
the Union; and Setzer then told her to come to work the
next day. On cross-examination, Jackson testified she was
handed the pamphlet, asked to read the last page and
discussed it after Selzer reviewed her employment applica-
tion with her, and after he reviewed the pay scale for the
job he proposed to hire her for and asked her to accept the
job (which she did). She also testified on cross-examination
that Setzer informed her a union campaign was in progress
and he could not influence how she voted.
Setzer testified he followed a uniform procedure in
interviewing each job applicant consisting of a review of
the information contained in the application, a discussion
of the distance between the applicant's home and the plant
and the transportation the applicant intended to use, the
applicant's interests , health, etc. He testified that after this
preliminary discussion, he decided if the applicant was
qualified for the available opening and, if so, discussed the
job he proposed to hire the applicant for, the wage scale for
the job, the wage progression for the job, the hours of
employment, the company practices concerning paid
holidays, vacations, health insurance and discounts on
company products, and then offered the job to the
applicant; if the applicant's answer was affirmative, he
then set a starting date, had the applicant sign a W-4 form,
reviewed the dress code, and, after March 20,8 gave the
employee the booklet which has been heretofore described.
Selzer testified that after March 20, after hiring an
applicant, he gave each applicant the booklet, asked the
applicant to read the last page, asked the applicant if he
had any questions, and answered any questions raised.
Selzer further testified he was not aware of the Union's
organizational campaign until mid-February and that prior
to commencing his practice on and after March 20 of
handing applicants the booklet after hiring them and
asking them to read the last page and then asking if they
had any questions, he never asked any applicant what his
or her views were concerning unionism, and never stated
his or the Company's views concerning unionism . He also
testified that after March 20 he confined his comments to
asking each applicant to read the last page of the booklet,
asking if there were any questions and answering any
questions asked.
Setzer's testimony concerning the initial date of distribu-
tion of the booklet is credited. It is supported by the fact
the booklet contains a notation on its back showing it was
printed in December 1973 and the receiving department
8 Selzer testified the booklet was printed in December 1973, delivered to
the plant in March, and distributed on and after March 20 His testimony
was supported by a printed legend on the back of the booklet stating it was
printed in United States of America December 1973 and a receiving
department invoice showing the first shipment of the booklets was received
at the Montrose plant in March.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
invoice indicating the first shipment of the December 1973
booklets9 was received at the Montrose plant in March.
Inasmuch as I have credited Setzer's testimony concern-
ing the initial date for distribution of the booklets, I
discredit the testimony of Harris, Baca, Latta, Span,
Godsey, Suchor, and Bergerello to the effect Selzer handed
them a booklet, had them read its last page, and then
solicited their views concerning union, representation; all
seven of them testified their employment interviews
occurred ,prior to March 20. In view of their lack of
credibility in this regard, I further credit Setzer's testimony
that he did not discuss either the applicant's or his views
concerning unions and union representation prior to
March 20 and discredit the Latta, Sparr, and Suchor
testimony to the contrary.10 The testimony of Harris, Baca,
Latta, and Span is additionally discounted as a basis for
making any findings on this allegation and' objection
because each of their employment interviews occurred
more than 6 months prior to the date the charge was filed
in this case (see Sec. 10(b) of the Act).
With regard to Jackson, Jackson corroborated Setzer's
testimony to his general practice after March 20; he., she
testified he went over the details contained in her
application, went over the requirements of the job he
intended to proffer to her, went over the wage scale and
fringe benefits provided by the Company and the hours
and other conditions of employment, and offered her the
job prior to asking her to read the last page of the booklet
setting out the Company's position regarding union
representation of its employees. She also corroborated his
testimony to his general practice after March 20 of asking
the applicant if the applicant had any questions after
perusing the last page of the booklet. I therefore find and
conclude that Setzer interviewed Jackson on April 17;
reviewed her application with her and related details;
decided to hire her; outlined the job he wished to offer her,
its wage scale, the Company's fringe benefits and work
requirements; offered her the, job which she accepted;
Setzer then handed her the booklet and asked her to read
the last page; she did so; and he then asked her if she had
any questions and she replied that she did not have any
questions because she did not know anything about
unions.
Jackson also testified that after her statement that she
did not have any questions because she did not know
anything about unions, Setzer stated that unions can and
do cause trouble and informed her a union organizational
campaign was then in progress; she stated she probably
would vote against the Union; and Setzer stated he could
not influence how she voted.
While Setzer denied generally that he mentioned the
union campaign after he became aware of it (in mid-
February) and did not discuss his views concerning union
9 While a prior booklet was printed in July 1973 and was delivered to the
plant in the fall of 1973, Setzer testified it was not distributed because, prior
to any distribution, the main office of the Company advised him the dress
code provisions contained in that booklet could be considered discriminato-
ry (there were separate and different standards for men and women) and
would have to be revised before'any booklets could be distributed. Setzer
testified he did not distribute the July 1973 booklet because of such advice
(the General Counsel did not refute this by producing any booklets
distributed prior to March 1974 containing a July 1973 printing imprint).
representation thereafter, he also testified his practice after
March 20 was to ask employees if they had any questions
after reading the Company's position concerning union
representation and to answer same.
Based upon the mutually corroborative testimony of
Setzer and Jackson on most details, including the question-
and-answer format, and based on Jackson's forthright
demeanor, I find and conclude that after hiring Jackson
and hearing her declaration that she knew nothing about
unions, he reiterated the company view (contained in the
booklet) that unions could and did cause trouble, informed
Jackson a union organizational'campaign was in progress,
and responded to her volunteered statement she would
probably vote against the Union with a disclaimer of any
desire to influence her vote.
I further find and conclude that by Jackson's own
testimony, the above exchange occurred after Jackson was
hired and not, as alleged in the complaint and objection,
before hiring; I further fmd and conclude that Setzer did
not solicit Jackson's views concerning union representa-
tion, but simply reiterated the Company's views concern-
ing union representation and countered Jackson's volun-
teered statement of her voting intentions with a disclaimer
couched in language which again reiterated the, company
position stated in the booklet,11 i.e., that the employees
were free to support or not to support a union of their
choice.
On the basis of all the foregoing, I find and conclude that
the General Counsel failed to prove by credible evidence
the allegations contained in paragraph V(a) and (k) of the
complaint and related objections and will recommend they
be dismissed and overruled.
C. Neil Roo'
The complaint and objections allege that on May 30 Neil
Rolff, the Company's vice president in charge of manufac-
turing,12 gave a speech to the employees in which, he
threatened to close the plant if the employees selected the
Union as their collective-bargaining representative and
repeated that threat in a letter to employees dated June 5.
The complaint and objections also allege that Rolff on
June 11 , and again on June 12 , violated the Act and
committed misconduct warranting the election be set aside
by promising an employee a wage increase and other
benefits if the employees did not select the Union as their
collective-bargaining representative ' and by asking an
employee to persuade other employees not to , support the
Union . These allegations shall be taken up seriatim.
1. The alleged May 30 threat
Employee John Harris testified he attended a general
employee meeting called at the plant by the Company on
Setzer's testimony that the July 1973 booklet was never distributed is
credited.
10 As well as Sparr's testimony that Setzer questioned his views about
union representation of the Company's employees.
11 1 further find that Setzer's comments and the company statements in
the booklet were noncoercive, and privileged within the meaning of Section
8(c) of the Act.
12 An admitted supervisor and agent of the Company acting on its behalf
at all times pertinent.
RUSSELL STOVER CANDIES, INC. 449
May 30; the speaker was Neil Rolff; Rolff stated
employees at only one ofthe Company's plants ever chose
to be represented by a union and that plant was_ now
closed. Employee Josephine Suchor testified she recalled a
meeting at which it was mentioned that the Company's
Kansas City plant went union and subsequently closed.
Rolff, Setzer, and Mike A. Smith, the Company's
corporate director of personne1,13 confirmed that Rolff
addressed the employees on May 30; the Company
produced a written statement containing Rolff's remarks at
that meeting (G.C. Exh. 3(a)). Rolff testified he followed
the text of that statement. Setzer testified he attended the
meeting with a copy of the statement, followed Rolfl's
speech as it was given, and confirmed Rolfl's testimony
that he followed its text. The text reads as follows: "There
are only two instances where unions were successful in
organizing Russell Stover employees. One was in our
Kansas City, Missouri plant which is now closed ......
Harris also testified that at some point during the speech,
Rolff stated he was not implying that the plant closed
because its employees were represented by a union.
The Company produced a memorandum setting forth
questions which were asked of Rolff and his answers
following the May 30 speech. Smith * recorded those
questions and answers (G.C. Exh. 8). The pertinent
exchange reads as follows:
Q. Did Russell Stover Candies close the Kansas
City plant because it got a union?
A. The Kansas City plant was not closed because it
formed a union. The plant was in a poor downtown
location, with outdated equipment and it was no longer
profitable.
On the basis of the foregoing, I find that on May 30 Neil
Rolff, in a speech to assembled employees, stated in one of
the instances where a company `plant was organized, the
plant in question subsequently closed and that it closed,
not because its employees were represented by a union, but
because the plant was no longer profitable.
I fmd and conclude that by such statement Rolff did not
threaten to close the Montrose plant if the employees
selected the Union as their collective-bargaining represent-
ative and neither violated Section 8(a)(1) of the Act nor
committed any misconduct warranting the setting aside the
election. I shall recommend those portions of the 'com-
plaint (paragraph V(b)) and objections so alleging be
dismissed and overruled.
2. The alleged June 5 threat
The General Counsel relies on a company letter dated
June 5 addressed to the employees to support this
complaint allegation and objection.
The pertinent portions of the letter (G.C. Exh. 2(b)) read
as follows:
13 Admittedly a supervisor and agent of the Company acting on its
behalf at all times pertinent.
14 It was company policy to grant automatic 10-cent increases 120
working days (6 months) after employment
15 The m,mmum wage laws went to a minimum wage of $2 in the spring
We also understand that the Union claims to be an
expert in the candy business. What we would like to
know is, experts in what? Were they experts in Kansas
City? Were they experts at Loft Candies and Barracini
Candies, which we understand are virtually out of
business, and how about all of the other candy plants
that had one union or another and are now closed, such
as: The George Ziegler Company m Milwaukee,
Wisconsin; McFarland's, Oakland, California; Safe-
way Stores Candy Division, San Jose, California;
Fannie Farmer Candy Company, Cambridge, Massa-
chusetts plant; Fannie Farmer Candy Company,
Minneapolis, Minnesota plant; Howard Johnson Can-
dy Division, Boston, Massachusetts; Hollywood
Brands Candy Division, Sulphur Springs; Texas; Flora
Mir Candy Corporation, New York, New York;
Martha Washington Kitchens, Incorporated, Chicago,
Illinois; and the Andes Candies, Inc., Chicago, Illinois.
We are not saying that these plants closed simply
because they had a union, but the facts are they did
close. Unions may be experts all right - perhaps experts
in organizing and making promises and in getting part
of your paychecks, but their record does not show that
they're experts in keeping candy plants open.
I find and conclude that by the above language the
Company did not threaten to close the Montrose plant in
the event the employees selected the Union as their
collective-bargaining representative and neither violated
the Act nor committed misconduct warranting the setting
aside of the election. I shall recommend that those portions
of the complaint (paragraph V (c))_ and objections so
alleging be dismissed and overruled. ,
3. The alleged June 11 wage increase promise
and request to dissuade union supporters
Employee Susann Latta testified that in the week
preceding the election (the election was held June 14), she
talked to Rolff in the plant; asked Rolff why she had not
received her 120-day increase 14 and that Rolff replied she
had already received that increase.15 Latta testified she
then asked Rolff if she would receive another raise if the
Union was voted out and Rolff replied in the affirmative.
She testified Rolff then stated things would be much nicer
at the plant if there wasn't any union and asked her to talk
to the other girls and explain to them that if they had a
union, they would have to pay union dues and attend
union meetings in Denver.16
Rolff testified that Latta sent word she wanted to talk
with him privately; that he agreed to talk to her and
conversed ' with her at the offices of Allen McKie.17 Rolff
testified that Latta stated there was talk in her area that if
the Union won, the election, the Union would be able to
control the hire and fire of employees; and that another
girl on her, production line said if the Union was voted in,
of 1974. Latta was hired in December 1973 at $1.90; the Company increased
her wage to $2 in the spring of 1974 to comply with the'new mmunum.
16 The Union was based in Denver.
17 The Montrose plant manager and an admitted supervisor and agent of
the Company acting on its behalf at all times pertinent.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she would become the stewardess and might cause Latta's
discharge if Latta did not change her position regarding the
Union . Rolff testified he replied to Latta's statement by
assuring her what she had heard was not correct, the Union
would not be able to affect the hire or fire of employees.
He testified he at no time discussed wages with Latta and
never made the statements attributed to him by Latta with
regard to things being nicer at the plant if there wasn't any
union and asking Latta to talk to other employees and tell
them they would have to pay union dues and attend union
meetings at Denver if they voted for the Union.
Based on my observation of Latta and Rolff while
testifying, andLatta's discredited testimony concerning her
alleged reading of a booklet in December 1973 which was
not,distributed until March 1974, I credit Rolff's testimo-
ny:
I therefore find that on June 11 Rolff did not promise
Latta a wage. increase if the Union were rejected and did
not request Latta to persuade other employees not to
support the Union . I shall recommend that paragraphs
V(e) and (f) of the complaint and related objections so
alleging be dismissed and overruled.
4. The alleged June 12 promise of a wage
increase and other 'benefits and request to dissuade
union supporters
Employee Yvonne Jackson testified she had a conversa-
tion with Rolff in the presence of Smith at approximately
11 p.m: in the lunchroom at the plant . She stated she asked
Rolff if the employees would get the (6-month) raises due
them ; Rolff replied, the employees 'would receive them after
the union question was settled ; she asked if there would be
insurance benefits and Rolff replied he could not promise
anything but he could say it had given insurance benefits
in other plants ; Rolff then asked her if she knew other
employees who had questions about the Union; she replied
she did, she knew several girls who were for the Union who
had questions ; and Rolff then asked her to try to "open
their eyes."
Rolff testified he gave a speech to each shift at the plant
on June 12,, including the night shift; he gave the night-
shift speech at the lunchroom prior to 11 p .m. and that,
after completion of his speech,' Jackson's supervisor
advised' him Jackson had a number of questions to ask and
he approached Jackson to answer them . Rolff testified on
his approach Jackson stated she had received contradicto-
ry information from the 'Company and the Union and
produced a written list of questions ; in view of this, Rolff
visualized the discussion would take some time and involve
many issues , and called over Smith to participate in the
discussion . Rolff, testified that after Smith arrived, Jackson
stated the Union promised to obtain a contract in 2 weeks
- promised to 'secure an immediate 30-percent wage
increase = promised to secure the Union's health plan,
which included a dental program, and asked for the
Company's position . Rolff stated that Smith replied,
stating it was bound to take longer than 2 weeks to
negotiate a contract , since it would be an initial contract,
and this promise, plus the promise of an immediate 30-
percent increase, was an example of how union business
agents made promises they could not deliver; and Smith
then stated any insurance plan would have to be negotiated
and paid for by the Company:
Smith testified he became concerned at the length and
type of the questions which Jackson asked, fearing
entrapment, and prepared a memorandum immediately
after the discussion setting out the questions asked by
Jackson and the answers he and Rolff supplied (Resp. Exh.
6). Smith's testimony that the memorandum accurately
recorded the exchanges was not rebutted.
The memorandum confirms Smith and Rolfes testimony
that Jackson stated a union representative (Mangone) told
her the Company's- Kansas City plant closed,because it
failed to meet public health standards and they replied
with a denial accompanied by a statement that the alleged
Mangone, comment was slanderous, asked Jackson if she
would testify to such a statement being made by the Union
under oath in court, to which Jackson replied she would.
Smith and Rolff and the memo confirm that Jackson
brought up the 6-month increase issue, stating the Union
made the' claim the Company would be forced to pay that
increase retroactively, to which' they replied' with an
explanation of the change in Federal minimum wage law,
which necessitated their increasing all those at the plant's
minimum rate of $1.90 to $2, followed by an explanation
that the Company considered this 10-cent increase as a
substitute for, and acceleration of, the 6-month increase.18
Rolff denied asking Jackson at, any time ,to talk to other
employees, and ,persuade them not to support the Union,
denied he told Jackson she or other, employees would
receive a raise if the Union was rejected by the employees.
Rolff confirmed Jackson's testimony she asked for an
additional raise, but stated (and Smith and the memo
confirmed) that he and Smith directed Jackson's, attention
to the NLRB election, notice posted nearby and advised
her prevailing labor law prevented the Company from
making any promises to employees concerning economic
benefits while the preelection campaign, was in progress.
The mutually corroborative testimony of Rolff and
Smith, as supported by Smith's, written memorandum,
persuades me .to credit their testimony and to reject any
testimony by Jackson to the contrary.
I therefore find that neither Rolff nor Smith, at any time
during the conversation with Jackson on June 12,'ipromised,
her that she and/or other employees would receive wage
increases or other benefits if the employees rejected the
Union, or asked her to persuade other employees not to
support the Union. I shall recommend that those portions
of the complaint (paragraphs V(g) and (h)) and related
objections so alleging be dismissed and overruled.'
D. Allen McKie
The complaint and related objection allege that on or
about June 11, McKie sent a letter to employees threaten-
ing to close the Montrose plant if they selected the Union
as their collective-bargaining representative.
is The plant went into production in December 1973 and most $2 per hour in the spring of 1974, when the new minimum became effective,
employees were inexperienced and hired at the minimum rate; they received prior to the date they completed 6 months of employment.
RUSSELL STOVER CANDIES, INC. 451
The letter reads as follows: "
June 11, 1974
Dear Fellow Employee:
Friday will be election day at our plant. There has
been much talk about this election, but now the talking
is over and I would like to express my thanks to you for
the cooperation you have given us during this union
campaign.
When you vote on Friday, only your conscience and
your good judgment should be your guides. In the past
few weeks we have shared our thoughts with you in
several group meetings . Last week Mr. Ward and Mr.
Newell were here and talked with you. Neil Rolff and I
have also talked with you and we have all attempted to
tell you as frankly and sincerely as possible, about our
views on having a union in this plant.
I hope you will remember what we have said to you
with respect to the large number of employees with
several years of service at our other plants. The fact
that these employees have remained in our employ for
many years and have rejected the union time and time
again certainly says a great deal about our ability to
treat our employees fairly. You should also remember
our request that you give us a chance to get this plant
started . We honestly think that this union would only
add to our problems at this time and would not be good
for either our employees or the company.
You can't get any guarantee from the union about
anything, with one exception, - and that is that the
union will want you to pay dues each and every month.
With respect to wages , don't be fooled with compan-
sons with highly, automated plants, - with many
machines and few employees, - making hard candy.
The decision is up to you. The only way you can get
a fair result in this election is to VOTE and to VOTE
the way you feel, - not, the way some fellow employee
might want you to vote. Remember, it is your job that
may be affected by having a union in this plant - and
it is your family that is dependent upon your pay check.
We have been completely fair and honest with you in
this election campaign and we sincerely hope you will
reach the right decision.
The date to vote is Friday June 14, 1974. The voting
times are 7:00 A.M. - 9:00 A.M. and 4:30 P.M. - 5:30
P.M. You may vote at either of these -two periods
provided you are eligible to vote.
We strongly urge you to vote [NO ] on election day.
Yours very truly,
It is argued that the foregoing language was an implied
threat to close the plant if the employees selected the
Union as their collective-bargaining representative.
I find and conclude that the quoted language, in the
context of a vigorous preelection campaign waged both by
the Union and by the Company, was an exercise of the
Company's right of free comment under Section 8(c) of the
Act. I shall recommend those portions of the complaint
[para. V(d)] and objections based- on the above language
be dismissed and overruled.
E. Vernon Sharon
It is alleged in the complaint and a related objection that
on or about May 15, Sharon told an employee he could not
receive a promised wage increase, because the Company
could not give any raises during the preelection campaign.
Employee John Harris testified that 2 weeks after his
December 10, 1973, hire, he asked Sharon how increases
were granted and Sharon replied he would receive a 10-
cent increase after 6 months on the job. Harris testified he
again approached Sharon in May and asked him why he
hadn't received his 10-cent increase and Sharon replied it
was unlawful for the Company to give him the increase
because of the pending election.
Harris conceded in cross-examination he received a 10-
cent increase in January and another 10-cent increase in
February based on merit. "
Sharon testified he did not recall ever having the alleged
May conversation with Harris. The Company's published
wage scales indicate the automatic adjustment for Harris'
job (candymaker) after 6 months was a 15-cent adjustment.
As noted heretofore, Harris conceded he received 20 cents
in wage increases prior to the completion of 6 months of
employment. All the management witnesses and documen-
tary evidence established that it was company policy to
credit any increases granted prior to the date an automatic
increase was due against such increase (see findings under
sec. G, below).
In view of the implausibility of Harris' testimony that
Sharon told him he would receive a 10-cent increase after 6
months when 15 cents was published in the Company's
wage schedules as the requisite step rate for Harris' job
after 6 months' service and Harris' unreliable testimony
recited heretofore (concerning his receipt of a booklet in
December 1973 which was not distributed until March
1974) and his admitted receipt of 20 cents in increases prior
to his completion of 6 months of service, I discredit Harris'
testimony concerning his May conversation and find it did
not occur. I shall recommend that those portions, of, the
complaint [para. V(1)] and related objections so alleging be
dismissed and overruled.
/s/ Allen W. McKie
Allen W. McKie
The following language contained in the letter is relied
on as the alleged threat: "It is your job that may be
affected by having a union in this plant - and it is your
family that is dependent upon your paycheck."
F. Louis L. Ward
The complaint and related objections allege that on or
about June 12 Louis L. Ward, the Company's president,19
promised employees wage increases if they did not select
the Union as their collective-bargaining representative and
informed them employees at the Company's other plants
had received a wage increase to compensate for inflation
19 An adnutted supervisor and agent of the Company acting on its behalf
at all times pertment.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but the Company could not give them a corresponding
increase, because of the union campaign, and on June 13
interrogated an employee about her union membership
activities and views.
1. The alleged promise
Employees Gary,Bergerello, Lawrence Bementos, Ray-
mond Sparr, Josephine Suchor, and Margaret Baca
testified that Ward gave a speech to employees on June 12
- 2 days before the election - and that, in the course of
the speech, he said employees at the Company's other
plants and the supervisors at the Montrose plant had
received pay increases and that pay increases would have
been granted at Montrose except for the umon election;
the Montrose employees could or would not receive pay
raises until after the union campaign was settled but would
receive raises thereafter; the Company could not give
automatic step increases after 6 months of service because
the plant was just getting started and the Union was
interfering.'
Two of the employees (Bergerello and Baca) testified
that in answer to questions after completion of his speech,
Ward stated in one instance' the Company could not give
increases at the Montrose' plant prior to the election
because it was unlawful to do so, and in a second instance
(with reference to a question about the first step increase)
failed to give an intelligible answer.
Ward testified he was in New Orleans on June 12 and
not at Montrose at any time on that date. He stated his
testimony was supported by 'the log in the company plane.
Rolff and Setzer corroborated Ward on this.
It is undisputed that Ward made a speech to employees
on all three shifts on June 6-7 and that he read that speech
from' a printed document.20 The document Ward read was
introduced into evidence.
The document discloses that Ward discussed wages and
benefits but not in specifics. After stating he was aware of
the effect of inflation and the employees' interest in wages
due thereto, he stated he had been advised by counsel that
he could not make any promises of adjustments therein,
and therefore would limit himself to a general statement of
the Company's wage policies. He then proceeded to state
that, as most of the employees knew, the Company ,had a
wage progression schedule based on length of service for
each job with a ceiling thereon; the Company made a
general wage adjustment once annually; the last general
adjustment was made in November 1973; and wage
adjustments other than the once-annual adjustment were
made only' if local market conditions warranted a change.
Ward and Smith testified that Baca raised a' question
concerning the first step increase (after the' first 6 months
of service) after Ward completed, his speech; Ward referred
the question to Smith; Smith stated that the Company
adjusted all rates below $2 to $2 on April 29 to comply
with a new Federal minimum wage of $2 as of May 1; the
Company treated this as the requisite step increase for
those employees whose wages were so adjusted; and it was
company policy not to make any additional adjustments
during the preelection campaign.
I credit the testimony of Ward, Smith, and Selzer that
Ward gave a speech on June 6 and 7 and not on June 12;
he did not depart from the text of the document introduced
in evidence purporting to contain his remarks; the only
reference he made to wages at the Company's other plants
was to state they:had been generally adjusted in, November
1973 and the Company followed the practice of making
general adjustments annually,, unless conditions in local
labor markets warranted; he specifically advised the
employees he could not promise any changes in wages or
other economic benefits at Montrose during the preelec-
tion, period; the only reference, to the first step increases
was Smith's response to Baca's question, wherein Smith
explained that most employees received a W -cent wage
adjustment in the spring of 1974 to comply with a change
in the Federal minimum wage laws, that, this constituted
their first step increase, and that the Company was
refraining from making any other adjustments during the
preelection period
On the basis of the foregoing, I find and conclude that
Ward did not on June, 1'2; as alleged in the complaint and
related objections, promise employees wage increases if
they did not select the Union as their collective-bargaining
representative or tell them employees at other company
plants had received wage increases to compensate them for
inflation but the Company could not grant a corresponding
wage increase at Montrose because of the union campaign.
I shall recommend that those portions of the complaint
[para. V(i) and (m)] and related objections be dismissed
and overruled.
2. The alleged interrogation
Employee Susann Latta testified that on June 13 (the day
before the election), she stopped Ward and asked if the
McKie letter was 'intended as a threat; Ward replied it was
not; Ward asked her if she was for or against the Union;
and she refused to answer.
Ward testified he had no recollection of Latta or having
any conversation with her and denied he ever asked any
employee whether he or she was for or against the Union;
on occasions in the past when employees have volunteered
their union views, he has always replied that was their
decision to make.
On the basis of my observation of Ward and Latta while
testifying and the improbability that Ward, who was well
aware of the limitations on a company representative faced
with a umon campaign, would ask such a question, I credit
Ward's denial that he questioned Latta concerning her
views about union representation.
I therefore find that Ward ^ did not interrogate an
employee on June 13 about his or her union membership,
activities, and desires. I shall recommend that those
portions of the complaint [para. V(j)] and related objec-
tions so alleging be dismissed and overruled.
G. The Wage Increase Issue
The complaint and related objection allege the Company
violated Section 8(a)(1) and (3) of the Act and committed
misconduct affecting the election by withholding wage
20 Selzer testified he followed the document as Ward gave the speech and Ward did not deviate from the text.
RUSSELL STOVER CANDIES, INC. 453
increases from the Montrose employees between the date
the Union's petition for an election was filed and the date
of the election.
The wage progression schedule adopted by the Company
effective with the commencement of production at Mont-
rose (December 1, 1973) was patterned on the wage
schedules then in effect at the Marion (South Carolina)
and Clarkesville (Virginia) plants of the Company.
There were 18 classifications established, with two of the
18 incentive classifications (Packer and Dipper).
Nine of the classifications had a beginning rate of $1.90
per hour; one of $1.95 per hour; three of $2 per hour; and
five of $2.25 per hour. The progression schedule provided
for automatic increases each 6-months to a maximum
ranging from $2.05 to $3 per hour, with a maximum
progression period of 2-1/2 years.
Only one wage change in the progression schedule was
made between December 1, 1973, and August 4, 1974; on
April 29 the nine classifications with a starting rate of $1.90
per hour and the single classification with a starting rate of
$1.95 per hour were increased to $2 per hour, thereby
establishing a wage progression schedule with 13 classifica-
tions at a starting rate of $2 per hour and five classifica-
tions at a starting rate of $2.25 per hour. No change was
made in any of the step rates or any of the maximum rates
at the time of the April 29 adjustment. That adjustment
was made to conform with a change in the Federal
minimum wage laws which required a nunimum of $2 per
hour effective May 1.
At the Company's other four plants, similar adjustments
were made in rates below $2 per hour. Additionally,
however, at the plants other than Montrose, changes were
made in the step rates to conform with the increase in the
minimum rates . No changes were made in the maximum
rates at any of the five plants, including Montrose, with
one exception (for one rate at two plants, where a 5-cent
increase was made).
On August 4 a general adjustment in all rates, including
minimums, maximums , and steps, was made at all five
plants. At this time, the rates at the Montrose plant were
conformed to the rates at the Marion and Clarkesville
plants.
President Ward gave testimony (which is credited) that it
was decided not to make any increases in the step rates at
the Montrose plant at the time the mimmums were
changed (April 29) to avoid any charge that the Company
increased such rates during the preelection period in order
to influence the election.
It is undisputed that Ward's decision not to increase any
rates other than the Federally mandated increase in the
minimum rates was carried out.
All the witnesses who testified concerning the first
automatic 6-month increase either received that increase at
the appropriate date (after 6 months of employ) or received
it at an earlier date, either due to merit (Harris) or the
change in the Federal minimum rate (Latta and Baca).
While Berrientos testified he did not receive a 6-month
increase , there is undisputed evidence he was hired prior to
the December 1, 1973, opening of the plant for production
as a maintenance man at the minimum rate of $2.25 per
hour; that in November 1973, he transferred to the position
of warehouseman, which had a minimum rite of $2; that
the 6-month step rate for warehouseman was $2.15 and the
1-year step rate was $2.35; that when he complained over
not receiving a step increase after 6 months of service,
Setzer and McKie informed him he would receive a 10-cent
increase to $2.35 when he completed d year of service, since
he was already above the 6-month step rate for warehouse-
man.
Similarly, Span's testimony that he did not receive the
requisite increase (he started as a warehouseman at $2 and
received $2.15 after 60 days' employ) is refuted by
undisputed testimony that Setzer told him after 120 days,
when he asked for another 10-cent increase , that he was
already receiving the 6-month step rate for his job and
would not be entitled to another increase (to $2.35) until he
completed 1 year of service.
On the basis of the foregoing, I find and conclude that
the General Counsel failed to meet his burden of proving
that the Company withheld any step increases for the
Montrose employees between the time the Union filed its
petition for certification and the date of the election. I shall
recommend that those sections of the complaint [para.
V(1)] and related objections so alleging be dismissed and
overruled.
H. The Unit and the Union's Representative
Status
On May 21 the Regional Director for Region 27 issued
his Decision and Direction of Election in Case 27-RC-
4748 finding:
All regular full and part-time production, maintenance,
sanitation, shipping and receiving and sales employees
employed at the Employer's Montrose, Colorado,
plant; excluding office clericals, guards, truckdrivers,
professional employees, laboratory technicians and
supervisors, as defined in the Act
constituted a unit of the Company's employees appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act, and I so find.
On June 14 a representative of the Regional Director for
Region 27 issued a tally of ballots certifying that of
approximately 245 eligible voters in the above unit, 234
cast valid votes; that 133 of those votes were cast against
the Union and 101 votes were cast for the Union, with the
7 challenged ballots insufficient to affect the results of the
election. On the basis of this tally, I find that on June 14 a
majority of the eligible employees within the unit cast
ballots against representation by the Union.
CONCLUSIONS OF LAW
1. The Company at all times pertinent was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization , as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent, Setzer, Rolff, McKie, Sharon,
and Ward were supervisors and agents of the Company
acting on its behalf.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The following employees of the Company constitute
a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All regular full and part-time production, maintenance,
sanitation , shipping and receiving and sales employees
employed at the Employer's Montrose, Colorado,
plant; excluding office clericals, guards, truckdrivers,
professional employees, laboratory technicians and
supervisors, as defined in the Act.
4. On June 14 a majority of the Company's employees
in the aforesaid unit cast ballots against representation by
the Union.
5. The Company did not commit any unfair labor
practices as alleged in the complaint issued in Case 27-
CA-4163.
6. The Union's June 18 objections to company conduct
allegedly affecting the election are without merit.'
THE REMEDY
Having found that the Company did not engage in unfair
labor practices in violation of Section 8(a)'(1) and (3) of the
Act or in misconduct warranting the setting aside of the
election, I shall recommend that the complaint be
dismissed, the objections to the election overruled, and a
certification of the election results issue.
[Recommended Order for dismissal "omitted from publi-
cation.]