Switchcraft, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1974

215 N.L.R.B. 465 (N.L.R.B. 1974)

SWITCHCRAFT, INC.
Switchcraft , Inc. and Warehouse , Mail Order Office,
Technical and Professional Employees Union, Local
743, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America.' Cases 13-CA-12805 and 13-CA-13077
December 10, 1974
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On August 29, 1974, Administrative Law Judge
Allen Sinsheimer, Jr., issued the attached Decision in
this proceeding. Thereafter, the Union filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act , as amended , the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent , Switchcraft , Inc., Chicago , Illinois, its
officers , agents , successors , and assigns , shall take the
action set forth in the said recommended Order.
I Attached to its exceptions to the Decision of the Administrative Law
Judge, the Charging Party notified us that the official name of the Union was
recently changed from Warehouse and Mail Order Employees Union, Local
743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America to the name appearing above The Charging Party
additionally moved that all formal documents in this matter be amended
accordingly In the absence of any objections, that motion is hereby granted
DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR, Administrative Law Judge: The
above proceeding was heard on May 28, 29, and 30, 1974, at
Chicago, Illinois. An original complaint in Case
13-CA-12805 issued February 15, 1973,' and an original
complaint in Case 13-CA-13077 issued April 12, 1974 2
Both complaints were consolidated for hearing by order
dated April 12, 1974. They allege violation of Section 8(a)(1)
of the Act by the granting of certain benefits, including wage
increases,; vacation changes, and an additional holiday and
Based on a charge filed November 13, 1973
2 Based on a charge dated March 11, 1974
465
Christmas benefit, and also by interrogation, impression of
surveillance, threats, etc.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs of the
General Counsel and Respondent, I make the following:4
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation, is engaged in the
manufacture, sale, and distribution of electronic components.
During the past fiscal year representative of its operations,
Respondent purchased and caused to be transported and
delivered to its Chicago plant goods and materials valued in
excess of $50,000 directly from points outside Illinois. During
the same period, Respondent manufactured, sold, and dis-
tributed at its Chicago plant products valued in excess of
$500,000, of which products valued in excess of $50,000 were
shipped from said plant to points located outside the State of
Illinois. I find Respondent is and has been at all times
material herein an employer engaged in commerce within the
meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Warehouse and Mail Order Employees Union Local 743,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union,
is a labor organization within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Background
Since Respondent's inception following World War II,
there have been 11 efforts to organize its plant, the latest prior
to the current one being in 1970. In none of these campaigns
was a petition ever filed. The present campaign, which the
record reflects commenced on October 16, 1973, was evi-
dently still in effect at the time of the hearing.
For some years prior to 1973, it appears that the Respond-
ent granted wage increases to employees as set forth here-
after. On August 3, 1970, increased the maximum to RPI
assemblers by 10 cents; in 1971, apparently no range increases
to RPI assemblers were given but automatic increases were
within the ranges, on March 20, 1972, RPI assemblers' mini-
mums and maximums were increased 10 cents; on May 7,
1972, RPI assemblers' minimum was increased 15 cents and
maximum increased 10 cents; on March 12, 1973, RPI assem-
blers' minimum increased 15 cents and maximum 10 cents;
then on October 22, 1973, an increase occurred for RPI
assemblers and also for all other employees of 10 cents per
hour; also, as of April 29, 1974, an increase occurred of 20
3 An amendment alleging an additional violation by a wage increase on
April 29, 1974, was granted at the hearing
4 On July 1, 1974, the General Counsel filed a motion to correct the
transcript with the statement that Respondent and the Charging Party did
not oppose such I have examined and compared the requested corrections
and find they are in order, except it appears that, instead of p 431, as set
forth in items 2 and 3 of said motion, such should read p. 436 1 am granting
said motion accordingly
215 NLRB No. 92
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cents per hour. In the periods prior to October 1973 evidently
there were adjustments made for employees other than RPI
assemblers but not at the same time as the changes were
granted the RPI assemblers, who Respondent testified con-
stituted about 60 percent of its approximately 800 employees.
Respondent contended that in 1973 it did not grant a se-
cond increase it "normally" would have in May until October
because of tightening of working capital resulting from a
slowing of collection of receivables and increase in inventory
resulting in a decrease or slowing of cash flow. Respondent
gave the October increase of 10 cents per hour after discover-
ing it had room therefor under the 5.5 wage formula stand-
ard, and that it then had the funds to` grant such increase
prior to November 13 or 14, which would be the end of its
accounting year.
In connection with this increase , the record reflects that
the Respondent had been discussing such in communications
between its Vice President Charles Giesow and its Treasurer
Fred Dumke . On August 6, 1973, Giesow wrote to Dumke
on the subject of economic welfare increase for all hourly
rated employees in which he stated:
I call your attention to our previous pattern of granting
two rate increases each year to all of our hourly rated
employees ; the most recent increases were made effective
March 20, 1972, May 1, 1972 and March 12, 1973.
You will recall that prior to our vacation shut down
period between July 23, 1973 and August 3, 1973, we
discussed the ever increasing turn over of help, the prob-
lem and the cost of finding replacements . This condition
has steadily increased , and in view of the ever increasing
rise in our national economy, I now must urgently sub-
mit this year's second new hourly rate increase of 10¢ per
hour across the board to all of our presently employed
male and female employees . This increase should be
made effective no later than the month of October.
Please give this recommendation your earliest considera-
tion.
On the bottom of this memo from Giesow to Dumke appears
Dumke's handwritten statement:
I agree.
I hesitate however to give approval right now because of
the heavy demand by inventory build=up due to increase
in back-log and the build up of receivables due to slow-
down in collections upon our working capital and cash
flow. With heavier emphasis on scheduling of incoming
material we should be in better position for granting this
increase in Sept . or October
/s/ Fred D.
On August 13, Giesow again wrote to Dumke expressing
the hope that the financial difficulties would be alleviated
"before school vacations are over as we expect to lose still
more help when the young men and women return to school
around Labor Day that helped fill the gap temporarily....
I anxiously await your go ahead signal maybe September
will be our lucky month." Dumke replied "Plan on putting
through a general 10 cent per hour increase the latter part of
September. See me around the 15th and we will pinpoint the
date."
On August 31, Giesow sent another memo to Dumke in
which he advised that he was happy to learn that "it is quite
possible the proposed general increase of 10 cents per hour
will be placed in effect in the very near future. Believe this
would be the opportune time to bring up our often discussed
vacation adjustment." Giesow then discussed the matter of
the vacation adjustment and particularly pointed out that
their 2-week vacation program after 3 years of service only
reflected 24.7 percent of companies contacted, whereas the
popular trend reflected 43.3 percent for 2 years of service.
Giesow then recommended a new vacation schedule with a
particular change of 2 weeks' vacation for from 1 to 5 years
service and requested advice as to "Will you be able to absorb
this additional expense . Please let me know as soon as possi-
ble." Giesow also added that "increased wages and fringe
benefits are the prime concern of both old and new em-
ployees. Our concern and prompt action now should without
a doubt help us to retain our present employees and serve as
an inducement to attract new applicants."
On September 12, Dumke in part replied that he agreed
that they had "to change and improve" and they should get
together with "Wilfred and Bill as soon as possible." On
October 10, another memo from Giesow to Dumke refers to
the proposed vacation schedule for 1974 and states Giesow
is looking forward to the meeting with Wilfred and Bill.
Dumke replied on October 15 that he spoke to Wilfred and
Bill concerning the "suggested vacation schedules" and that,
because of "increasing complaints this summer and because
of our high turnover record, we concur. I believe we should
announce this immediately because I believe it might be of
advantage to us in this year reporting of phase IV, the year
ending in November. I'm not sure but let's release it." This
latter letter does not refer to the proposed pay increase.
Although not originally introduced by Respondent, it ap-
peared following examination by me that there was another
interoffice memorandum from Giesow to Dumke dated Octo-
ber 11, 1973, with the subject, "Economic Welfare Increase
All Hourly Rated Employees":
In line with your reply dated August 28 , 1973, and our
conversation on September 17, 1973 , at which time you
approved my recommendation , I submit herewith a
proposed new hourly rate increase of 10¢ per hour across
the board to all of our hourly rated employees.
It is my intention to place the new rate increase into
effect October 22, 1973, at which time Data Processing
can process the increase. Therefore, I urge that you give
this recommendation your earliest consideration.
Underneath there appears opposite the word "approved" the
signature of Secretary-Treasurer Fred Dumke, dated October
11, 1973. As indicated, this latter refers to a conversation of
September 17 between Giesow and Dumke and proposes a
new hourly rate increase of 10 cents for all hourly rated
employees with the stated intention to place such into effect
on October 22. This increase was accordingly approved some
5 days prior to commencement of union organizational ac-
tivity on October 16.
SWITCHCRAFT, INC.
Further background as to the wage price situation in the
period in question in Chicago and the United States is re-
flected in an exhibit dealing with price indexes for both the
United States and Chicago for 1973 and 1974, using both an
old series and a new series index.' Among the figures re-
flected for January 1973, the U.S. old index shows 148.5, U.S.
new, 127.7; Chicago old, 143.6, Chicago new, 126.4. As of
October 1973, the corresponding figures show U.S. old,
158.8, U.S. new, 136.6; Chicago old, 154.1, Chicago new,
135.7. This is approximately a 9- to 10-point change in the
period from January 1973 to October 1973 in the cost of
living index, which refers to urban wage earners and clerical
workers. Thereafter, between October 1973 and April 1974,
the figures in April 1974 showed U.S. old, 167.5, U.S. new,
144; Chicago old, 162.5, Chicago new, 143. This in turn
represents changes of over 8 points between October 1973
and April 1974 in the cost of living index, both U.S. and
Chicago's.
B. The Wage Increase of October 22, 1973
From the foregoing, it would appear that this wage in-
crease of October 22, 1973, was both considered and defini-
tively determined prior to union organization of October 16
and in fact by October 11, the date had been set for it to be
placed into effect; namely, October 22. While the Respondent
argues that its prior wage increase pattern reflects two per
year, as indicated , supra, this is not quite the case. However,
in view of its prior determination to give the increase on
October 22, as reflected by the internal correspondence of
Respondent, which I credit , and also the situation throughout
the nation and the Chicago area in terms of cost of living and
wages, subject only to the limitations of wage-price controls,
the increase of October 22 appears to be a valid one and not
conceived or directed toward interfering with union organiza-
tion . Accordingly, I find the increase itself was valid.
With respect to the announcement of said increase and the
propaganda pertaining thereto, another question may arise.
In order to evaluate that , it is necessary to set forth the
literature pertaining thereto. On October 16, the Union is-
sued a bulletin announcing its organizing drive and soliciting
membership . On October 17, the Respondent , through
Charles Giesow, vice president , replied advising employees to
"know the facts and recognize the risks which may result"
and then stated "For over 25 years we have built our business
and have added to our employees well being with continuous
voluntary improvements in wage scales , clean , well-lighted,
air conditioned working conditions to assure your comfort
and safety ." It then advised the employees that unionism is
a serious matter and that they should give it a lot of thought
before making a decision to sign an authorization card and
refer to requirements of paying dues, etc. The letter also states
"We believe that we can give you benefits as good or better
than those which the Union would try to negotiate without
your having to pay for these benefits. As you know, under
President Nixon 's wage and price regulations, businesses are
limited in how much they can increase wages and fringe
benefits . With these limitations in force, a union is not being
5 The old series covered 1957-59 equal 100. In the new series, 1967 equal
100.
467
completely honest with you when they promise you the
moon." The letter goes on "The management of Switchcraft
has always been available to its employees if they have any
gripes or problems. We shall continue to operate that way and
hope that all of our employees will feel that they do not need
a union to intervene in order to get fair and just treatment.
If anyone has any questions about our present policies or
future plans, please come to see me."
On October 22, without any distinction as to employees'
job classifications, Respondent gave a general increase of 10
cents to all its employees at its Chicago plant. On October 25,
Giesow wrote to employees with respect to the Union, accus-
ing it of handbills that made "wild promises in an effort to
mislead" and containing various assertions generally deroga-
tory to the Union and its purposes. The letter asserted "The
high standard of wages, excellent working conditions and
outstanding fringe benefits which we have here at Switchcraft
have been obtained by all of us working together." The letter
then said that "no one has ever been subjected to strikes," etc.
It further stated "If you have any problem on your job talk
to your supervisors or me about it."
Thereafter on October 30, the Union issued a bulletin as-
serting that the management has started the usual antiunion
smear and fear letter writing contest and other tricks and
containing the following:
l0C is not Enough
The biggest disgrace of all is that Management in-
sulted, undermined and ignored the intelligence and dig-
nity of the workers. To keep the workers from joining
the union, the Company gave the workers a 10C wage
increase and a vacation trick. Everybody at Switchcraft
know that the only reason why the l0C crumbs were given
by the Company is because the Union is at the Com-
pany's gates. Any worker in his or her right senses
knows that ten cents is not enough, not even for a down
payment on a decent wage increase. Switchcraft Man-
agement believes that th,; workers have to take their
shoes off to count to twenty. We are sure that the work-
ers are more intelligent than what management thinks.
[Emphasis supplied.]
Vacation Trick
Since the Union got in the picture, Management
reached for the anti-union trick bag, and came up with
a vacation trick. (The gimmick works like this.) The
Company claims to give the workers one week vacation
for 6 months of service and two weeks for one year. First
of all the Company will not let anyone go on vacation
with only 6 months of service. Secondly, the workers
must have one full year of service in order to get the two
weeks vacation. This means that if you have worked 11
months and three weeks you will only get one week
vacation. Actually, you will be working two years in
order to get two weeks vacation. (That's a trick). Of
course, tomorrow is Halloween.
The leaflet concluded with a request for the workers to join
the Union.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent on October 31 responded as follows: The
first paragraph refers to the large number of the handbills
thrown to the pavement by employees and then the letter
continues:
It is unfortunate that the union cannot understand that
it is Unnecessary to engage in Strike Action in order to
get a Wage Increase or Better Vacation Program, when
you work for a Company that Cares for its employees.
Furthermore, they Fail to realize that the friendly rela-
tionship that exists between our employees and us is the
result of the sincere interest we have always taken in the
welfare of our employees during the past 27 years. The
Loyalty that exists between us has proved to be to our
Mutual Benefit, and the Company will do everything
Humanly Possible to improve this relationship and make
Switchcraft a Better Place in which to work.
You may want to know how this Wage Increase and
Better Vacation Program came about. As you know, we
are all subject to Phase IV of the Economic Stabilization
Program of our country and I am sure that all of us want
to comply with the law. As a result, our Company is
limited to 5.5% in wage increases and .7% in improve-
ment of fringe benefits. Due to the fact that we had
already voluntarily given one plant-wide increase since
November 13, 1972, we were limited in granting a se-
cond increase that would result in giving you more than
5.5% in one year. It was necessary for us to compute
how much of this 5.5% was still available for us before
November 13th of this year. We found that a 10 cent an
hour Increase for every hourly paid plant employee
would eat up the balance available to us, and we gave it
to you. Besides, in order not to violate the law, we put
it into effect within the one year period. If we had ex-
ceeded the 10 cent an hour Increase, it could have been
cancelled completely by the Cost of Living Council in
Washington, D.C., and our effort to help you would
have been wiped out.
Now for the Improved Vacation Program. The union is
so jealous of you getting it Without Strike Action, that
they are labelling it a "trick." Nothing could be further
from the Truth and they know it, so they set up a Smoke
Screen by trying to give you the impression that all of
you would have to work 2 years in order to get 2 weeks
vacation. You know that we have a 2 week plant shut-
down in July and August to give every employee the
opportunity to take their vacation with their family or
friends during the best vacation period of the year. Be-
sides, many of our suppliers and customers are also shut
down for their vacation during the same period. Without
supplies or customers to ship our finished products to,
our work schedules would have had to be changed, and
possibly some of our employees laid off. Under the new
Vacation schedule, every present employee will receive
a one, two, two and one-half, or three week vacation
with pay next August.
- Prior to October 31, the improvement in Respondent's .
vacation policy mentioned in the leaflet and previously re-
ferred to above in the correspondence between Giesow and
Dumke had been announced by posting a notice with respect
thereto on the bulletin boards throughout the plant. This then
led to the union handbill and to part of Giesow's letter of the
31st, supra
Evidently, some time the following week, the Respondent
distributed its November copy of its magazine , Echoes. Page
3 thereof consisted of an unsigned open letter to Switchcraft
plant personnel in the column entitled Christmas 1973 writ-
ten by Charles Giesow. The open letter 'states:
For example, why not read and re-read the letter from
Charley Giesow about the pay increase and vacation
change announced last week? Please know that, as he
points out, Uncle Sam has the say (not any non-govern-
mental group) on how much wages can be increased
across the board.
Know, also, that the same Phase IV governmental
limits apply to benefits paid by any company, be they
vacation, holidays, etc. ,
So, no matter what anyone tries to promise or guaran-
tee you in a leaflet, for the present, the two increases
granted this year are all the law will allow.
Such increases are part of a continuing effort to main-
tain good wages and benefits without violating federal
standards.
Another thing: know that no organization can force
any other organization to provide more holidays, longer
vacations, higher pay, etc. In our American system it
just never has worked that way.
Also in the same issue is a column by Giesow headed "Christ-
mas 1973" which reads:
First, this year for the first time, Christmas Eve, Mon-
day, December 24, will be a full day off with full pay.
This means we gain a half-day of pay. When the Party
was held, we got paid for the afternoon of the Party, but
not for Christmas Eve day.
So this year, we will be receiving eight full days off
with pay instead of the normal seven paid holidays plus
the afternoon off when the Party was held.
I am also pleased to announce that this year every one
at Stitchcraft will receive as a Christmas gift a turkey
from the company.
On November 7, Giesow wrote another letter which begins:
Many of our employees have told management that
there is NO NEED for a union in our plant. I agree with
them. These employees recognize that they are getting
appropriate rates of pay and also all of the fringe benefits
which are being paid in our industry. All of these have
been given voluntarily by management without the
necessity of paying any union for them. Besides, no
Switchcraft employee has ever suffered any loss of pay
due to Strikes or other forms of Work Stoppages in our
plant. Our employees have never had to pay Initiation
Fees, Dues, Special Assessments or Fines to any Union.
The letter lists 16 items of benefits that the employees have.
Item 16 states:
SWITCHCRAFT, INC.
You will soon receive an Employees Handbook which
simply but thoroughly explains the Rights, Privileges,
Policies and Procedures that affect you and your work.
It will contain all of the above Benefits, and will be as
legal as any union contract.
The foregoing refers to both the wage increase and also the
Christmas vacation and turkey change from the preceding
year which will be considered hereafter. The General Counsel
asserts that the Respondent's position in its letters was such
as to, when combined with the wage increase , create an im-
proper or illegal impression as to the granting of the wage
increase vis-a-vis the Union with a resultant violation of the
Act. The General Counsel also contends that the granting of
the increased holiday and the giving of the turkey at Christ-
mas in conjunction with Respondent' s announcement thereof
violated Section 8(a)(1) of the Act. He also argues that the
impact thereof, when combined with the granting and discus-
sion of the wage increase , further illustrates the illegality of
the wage increase as announced. The contention is in essence
also urged with respect to the vacation improvements which
were put into effect prior to October 31 to be considered
hereafter.
Respondent attributes the wage and vacation increases and
improvements to competitive pressure , economic conditions,
the stabilization plan and cost of living, etc. As set forth
previously, these matters and others were the subject of inter-
nal discussion prior to union organization and decided and
determined prior thereto. The General Counsel, in asserting
that the wage increases were given to blunt the Union or that
such impression was created by Respondent, refers, among
other items for support thereof, to Respondent's prior
history,' which I do not deem determinative since the issue
can best be resolved by the evidence as to Respondent's con-
duct in light of circumstances during the period prior to
October 16, 1973.
The General Counsel also argues that Giesow's letters did
not announce or explain that Respondent had decided to
grant the increase 5 days before the Union's first handbill and
that the impact of statements, such as "we believe we can give
you benefits as good or better than those which the Union
would try to negotiate without your having to pay for these
benefits," when coupled with the actual increase , created an
improper combination and effect in violation of the Act. He
stresses that the letter of October 17 and the history of Re-
spondent's prior wage changes provided the only background
reference for the employees when the October 22 raise
became effective and also emphasizes the October 25 letter's
assertion , "there's been no need for a union because we have
always worked out our problems on a mutually beneficial
basis." The General Counsel further points to the October 31
letter which referred to a variety of reasons for the wage
increase but mentioned neither Respondent's problems of
cash flow nor its prior determination of the increase. He
argues that the Respondent had so entwined its October wage
increase and improved vacation plan with its vigorous an-
tiunion campaign that by ` failing to explain the legitimate
purpose underlying these changes ... Respondent left these
employees with only Giesow' s letters as a basis for determin-
6 Which Respondent also appears to rely on.
469
ing their employer's purpose. Respondent did not tell the
employees . . . that these benefits were granted at this time
because of the prior cash flow problem or because wages were
too low to attract an adequate number of new employees .
.. . The General Counsel finally contends that the letters
were intentionally worded to convey the limited message to
employees that Respondent would grant benefits better than
the Union could negotiate, that benefits beyond these were
unlawful, that these benefits were the result of antiunion
employees' loyalty to the Company and that all employees
could expect from unionization were dues and strikes.
It is true that there are certain implications in letters writ-
ten by Giesow which, however, appear to be similar to many
letters by employers during union organizational campaigns
concerning the respective positions of employer and union
and the possible impacts of unionization. Also, the letter of
October 31 which refers to the wage increases appears in part
to be a response to the Union's handbill setting forth that "10
cents was not enough." While the Respondent did not go into
all the details of the problems and matters it considered prior
to determination of the wage increase, the issue is whether
under the circumstances it was obligated to set these forth in
its letters. First, were it required to set forth its cash flow
problems, such would mean revelation of current financial
aspects of its business.' A second question is should Re-
spondent be required to state that the determination to in-
crease was made before the Union entered into the picture.
A further question is, if Respondent had done so, whether
such conduct in turn might not have been charged as con-
stituting part of a violation for impliedly saying "see we did
it without the Union and hence you don't need the Union."
Upon analyzing the foregoing in the light of the cases and
authorities, it appears to me that the Respondent, as to this
first wage increase, had determined to put such into effect
prior to union organization and then proceeded to do what
it had a right to do. Respondent's initial letters were in the
form often seen in union campaigns. Its letter of October 31
was essentially in response to the Union's handbill of October
30 and primarily each was in the nature of propaganda. I
accordingly do not believe that the Respondent was obligated
to set forth the other matters or considerations that the Gen-
eral Counsel claims that Respondent should have. The prob-
lem is, what can an employer say under the circumstances
that would not be subject to misinterpretation or dual inter-
pretation? No doubt there can be statements which, in con-
junction with a wage increase, amount to a violation.
However, I do not consider that to be the case herein and
accordingly conclude that neither the wage increase of Octo-
ber 22 nor the statements with regard thereto were violative
of the Act.
C. The Improved Vacation Plan
The improved vacation plan referred to above had been
agreed on prior to October 16; namely, October 15. It was put
into effect in accordance therewith and the bulletins and
letters referring thereto set forth above appear to be in the
same vein as those with respect to the wage increase. I, there-
7 Of course, under certain limited circumstances these may have to be
divulged to a properly designated exclusive bargaining representative.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, also conclude that Respondent 's references to vacation
plan and the improvements therein were not in violation of
the Act.
I call your attention to our previous pattern of consider-
ing and granting increases to our.hourly paid employees
in May and in October.
D. The Pre-Christmas Holiday and Turkey
Prior to 1973, Respondent had a policy of giving a party
some days prior to Christmas in the afternoon at the plant.
The employees came to work in the morning dressed for the
party. Admittedly, their work in the morning was not at
maximum efficiency but they were expected to work. In 1973,
because of changes in operations in the plant, it was not
feasible to clear an area to hold such a party. Therefore, in
lieu of the half holiday for the party, the Respondent decided
to grant the employees a full holiday for the day before
Christmas and to give them a Christmas turkey. The Respon-
dent's computations are that the cost of the party, including
the loss of time from work, was about $10,000 and the cost
of the turkeys about the same.
It is arguable whether Respondent 's computations as to the
total cost of the party and the half day off were complete and
accurate. Assuming arguendo that the cost were accurately
reflected, there is no question that by giving both the turkeys
and the extra half day off, the cost of both was necessarily
somewhat greater in 1973 than it had been in prior years. If
the cost of half a day off in 1972 and prior years were as
estimated at $3,000, then the cost for a whole day would
appear to be at least double that in 1973 and the total cost
in 1973 substantially higher. Actually if 800 persons were
paid a minimum of $2 an hour for an 8-hour day, the cost of
a full day would be at least $12,800, much greater. In any
case, there appears to be a marked difference between a half
day off for a party and the full day off with a turkey which
was granted in 1973.
This was further emphasized to employees by Respon-
dent's statements with respect to this particular holiday. Re-
spondent's statement , supra, from the Echoes publication of
November 1973 with respect thereto clearly implies an addi-
tional benefit granted by the Respondent in 1973. The state-
ment emphasized a full holiday for the first time, the day
before Christmas, a gain of half a day of pay, eight full holi-
days, instead of seven, plus the afternoon of the party, and a
Christmas gift of a turkey. The foregoing clearly appears to
place the granting of the holiday the day before Christmas
and the free turkey in the category of newly granted benefits
by Respondent which would have the purpose and impact of
Fred , May 1st is approaching rapidly and I am writing
to you now because my recommendation is to grant all
hourly paid employees a 20q per hour increase. Our em-
ployees have been extremely patient and cooperative in
the face of this unprecedented increase in the cost of
living.
I make the above recommendation because of the follow-
ing reasons:
1. The EIA letter informing us that we are not exempt
from price and wage controls.
2. May 1st is normally our time of the year to consider
wages.
3. We must consider the coming increase in the mini-
mum wage from $1.60 to $2.00 on May 1st.
Please give this recommendation your earliest considera-
tion.
Dumke responded as follows at the bottom:
4/10/74
Yes, I am sure that May 1st is being anticipated by our
employees. I agree that we have three very pressing rea-
sons, as you mention above, to consider this increase.
However, before we decide, I will call Jack Cusack for
his opinion - in the light of the present union activities.
/s/ Fred Dumke
Fred:- Good idea, please let me know as soon as possible.
/s/ Charlie Giesow 4-11-74
There appears on the side of the memorandum:
Charles Giesow:
4/24/74
undermining the Union's organizational activities (unlike the You have our approval to put through a $.20 per hour
wage and vacation benefits which had been determined prior
to organizational activity under the circumstances set forth).
I accordingly find that the holiday granted before Christmas
and the turkey, in the manner in which they were granted and
announced , constituted a violation of Section 8(a)(1) of the
Act.'
E. The Wage Increase of April 29, 1974
Giesow in an interoffice memorandum to Dumke dated
April 8, 1974, stated:
increase for all hourly paid employees effective 4/29/74.
/s/ F. Dumke
Respondent also received advice from its counsel, John Cu-
sack, by letter dated April 16 to Dumke that he had spoken
to a Board agent who had advised that he did not believe
granting the contemplated increase would be a violation and
expressed counsel's opinion that the contemplated increase
would not be a violation.9
9 It was subsequently stipulated that an unspecified Board agent had been
8 N.L.R .B. v. Exchange Parts Company, 375 U.S. 405 (1964). presented with a hypothetical situation involving a discussion of a general
SWITCHCRAFT, INC.
Dumke testified and Giesow asserted that the reasons for
the increase of April 29 were: their ability to then give such
increase legally, the impact of the increased minimum wages
effective May 1 and the alleged prior pattern of granting
increases on May 1 in prior years. First, although the mini-
mum wage increase would not directly affect Respondent,
conceivably it could have an impact on Respondent because
Respondent's wages were not so much higher as to be un-
related to a change in minimums. Second, while it may be
arguable as to whether or not Respondent had been restricted
by the cost of living council or whether its wage scales were
exempt therefrom, in any case such was an asserted reason
whose validity may or may not have been predicated on fact
or misunderstanding. Third, as to the prior years, although
Respondent in some instances gave increases twice in a year
and also gave some in May, there does not appear to be an
entirely consistent pattern. These and other circumstances
relating to this increase raise questions as to Respondent's
motivation . However , given the change in the minimum
wage, given the expiration of the controls, and given the
substantial increase in the cost of living in the Chicago area,
supra, of some eight to nine points since the prior increase in
October, the April 29 increase appears reasonable for Re-
spondent to have granted. Under these circumstances, I do
not find that the increase granted on April 29 was violative
of the Act.
The General Counsel also urges the context of this raise in
light of the Union's campaign and Respondent's letters dur-
ing said campaign. He points to a letter by Giesow dated
March 19, 1974, and specifically refers to that part of the
following two paragraphs which have been underlined:
These same Strangers also Criticized the Wage Increase,
the Christmas Turkey, the Improvement in the Vacation
Schedule, the Additional Holiday and other Recent
Benefits we have provided for you. They call them
"crumbs." However, they recognized your Appreciation
of all of them, and in an effort to Discredit our Sincere
Motives in giving them, they filed unfair labor practice
charges with the National Labor Relations Board. They
are asking in effect that the Board cancel them, and at
the same time they are claiming credit for forcing the
Company to give them. Until these unfair charges are
disposed of by the Board, the Company is practically
prevented from granting any more of the benefits we
have planned for you. But, let us assure you that the
Company had no selfish motives when we Voluntarily
gave you the above benefits, and we are confident of
proving to the Board it is just another case of "Sour
Grapes."
The wages and working conditions in our plant are known
to you to be among the best in our industry in this area.
Is it likely that any union can bring about great changes,
or any changes at all? We don't think so, and we believe
that you don't think so either. Your Company's program
of benefits and working conditions have always been so
attractive that no union could justify collecting dues to
principle of law and that such did not include or purport to include reference
to any charges or complaints pending at the time.
471
provide the benefitsyou now have Without Cost to you and
Without Strikes
The General Counsel also refers to Respondent's letter of
May 13, 1974, which states, among other matters: "We do
not want a Union and we do not need a Union here at our
Company. We have all benefited wthout one."
Essentially, the General Counsel repeats his agruments (as
to the first wage increase) about the context of the second
wage increase, pointing out that during a 7-month period the
workers benefited by a 30-cent improvement in wages, in
addition to any interim increments. He asserts that this repre-
sents the only period where Respondent's employees received
simultaneous increases , coupled with antiunion letters and an
inadequate explanation for the increases. Had this not been
a period of wage-price controls and a period of severe infla-
tion, the General Counsel's contentions might be more per-
suasive. In light of all the facts and circumstances, I conclude,
as in the case of the October 22 wage increase, that the April
29, 1974, wage increase was also not violative of the Act.
F. Other Alleged Acts of Interference, Restraint, and
Coercion
1. Allegation re Simerson
General Counsel also alleged a violation by statements
made by Respondent's personnel director to an employee
when he applied for work. According to employee Wesley
Pollock, shortly after Christmas 1973 he applied for a job
and, although subject to a physical examination, Respon-
dent's personnel director, Ralph Simerson, and a department
supervisor had agreed to employ Pollock effective January 2.
Pollock testified that Simerson said: "`Before we go over
there, there is one more thing, Wesley,' he said, `We are not
union here,' and he said, 'I just wanted to know what your
feelings were in this area?"' Pollock said he told Simerson he
never belonged to a union. Simerson, who is now retired, did
not recall the conversation with Pollock or much else. He
testified that he had spoken to and interviewed hundreds of
applicants and that the number per month would exceed 30,
of whom he interviewed about half. Simerson said he never
told job applicants "he would like to know your feelings" or
inquired about a union. He said that if the employee inquired
about the Union, he would inform them that the plant was
not union. Although the Respondent employs and interviews
large numbers of employees continuously in its operation of
some 800 people, there is no other evidence of any inquiry of
any employee by Simerson or anyone else about his union
feelings at the time of employment. In light of this and the
limited extent of the alleged inquiry, even assuming that Pol-
lock were to be credited, I am of the opinion that there may
well have been a misunderstanding and, in any event, I am
not crediting the version as set forth by Pollock. I accordingly
find the allegation as to Simerson's10 alleged illegal conduct
to be unsubstantiated.
10 :Complaint was amended to name Simerson instead of Zimmerman.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Alleged illegal conduct with respect to Bessie Agoranos
Bessie Agoranos in January 1974 was told by her supervi-
sor, Mary Anderson, not to talk to employees as she dis-
tributed papers throughout the departments." According to
Agoranos, about the end of January, Anderson said to her,
'Bessie, 'I hear you signed a union card."' According to
Agoranos, after she admitted this, Anderson told her that it
would be very bad for a lot of women if the Union came in
because they would lose their jobs and they couldn't make the
rates and things like that.
Agoranos testified that either that day or the next, her
supervisor, Arthur Wienski, told her that somebody had
complained that she was talking, wasting time talking, while
handing out papers. Agoranos testified she said to Wienski
she could recall only one person, Mary Anderson, whom she
spoke to. It was admitted by Wienski that he was approached
by Anderson, then spoke to Agoranos and reported back to
Anderson, who told him Agoranos, after leaving papers on
the desk, was talking to other employees who were working.
Wienski said he asked Agoranos to return to her station after
distributing, papers, etc., and that she responded "Okay,
Art." Wienski said about 2 days later he told Anderson he
had spoken to Agoranos. Wienski also said Agoranos was
wearing a union button at the time. Agoranos said that after
the incident, Wienski took the papers to other departments
until the week before the hearing. Wienski testified that occa-
sionally he took the papers around that Agoranos had been
taking.
Anderson denied speaking with Agoranos about the Union
except in 1972. I am crediting Agoranos, who appeared to be
a credible witness, as to the statement about signing a
card," thereby creating an impression of surveillance of
union activities, and the threat from Anderson that it
would be bad for the women if the Union came in because
they would lose their jobs. On the basis of this, I am find-
ing a violation of Section 8(a)(I). As to the evidence relat-
ing to Agoranos' allegedly talking too much, I do not be-
lieve that the General Counsel, on the state of the record,
has established an illegal limitation as to union activity
and accordingly find no violation.
3. Alleged illegal conduct with respect to Edgar Tolmie
Prior to March 26, Tolmie worked as an in-process inspec-
tor for the plastic molding department which job caused him
to go into various other departments. According to Tolmie,
on March 7, Arthur Wienski, his supervisor, told him that
Giesow had noticed Tolmie in departments other than the
molding department and asked what he was doing there.
Tolmie testified that Wienski said he told Giesow that was
part of Tolmie's job. Tolmie further testified, "but he said 'I
want to caution you, Ed,' he said, 'that when you go into
those other departments you had better only talk to the fore-
11 Mary Anderson was admitted to be a supervisor in the answer. Early
in the hearing the matter arose on questioning by Respondent, who dropped
the subject upon its being pointed out that such was admitted. Respondent
then, toward the very end of the hearing , endeavored to establish that she
was not a supervisor and amend the answer accordingly. The motion to
amend was denied.
12 Post, in a different context a statement by Giesow to Tolmie respecting
union organization is considered.
man or leadman concerning the particular problem that you
have."'
According to Tolmie, "He [Wienski] said furthermore, 'I
think it would be better in the future' he says, 'When you have
these problems you have to take care of, you have the lead-
man and the incoming inspector, Sidney Delin, take up the
problem for you.' He said 'What we have in mind' he said 'is
to keep you isolated in this department. [Emphasis
supplied.]" With respect to part of the foregoing, Wienski was
asked and testified:
Did you at any time say to Edgar Tolmie, in other
words, Ed, what we have in mind is to keep you isolated
in this department?
A. No, I never said that. I never said that to anybody.
Wienski did not deny other parts of the conversation de-
scribed by Tolmie as occurring on March 7 and I am credit-
ing Tolmie's testimony with respect thereto, and particularly
as to the threat to "isolate" him. On March 18, Giesow
requested that Tolmie come to his office. Tolmie, Wienski,
and another supervisor, Warren Vice (a brother-in-law of
Dumke), testified about the meeting . The facts, with the ex-
ception of testimony concerning the precise sequence of ar-
rival of the participants which I do not consider necessary to
resolve, and one pertinent conflict as to what was said, are
undisputed. Wienski and Vice were in attendance as wit-
nesses . Giesow started off by warning Tolmie about his re-
cord for tardiness. It appears that Tolmie had been tardy on
a number of occasions which he admitted on cross-examina-
tion. After the discussion as to tardiness , Giesow said, ac-
cording to Tolmie, "I want to warn you about your union
activity. You are organizing the Union in this plant." Tolmie
responded that the next time he organized would be the first.
Giesow called Tolmie a liar. There is evidence that Tolmie
had been active for the Union, including a union leaflet pur-
portedly signed by Tolmie which is in evidence as Respon-
dent's Exhibit No. 29, apparently distributed on April 2,
1974.11
Tolmie continued to discuss the matter and, according to
him, Giesow said "Well if I catch you organizing the Union
in this plant, out the door you go, do you understand me."
According to Wienski, the issue of Tolmie's organizing was
brought up by Giesow, who said "Edgar, you can organize
at any time on your own time such as lunch break time, after
work, that is permitted, you know, but not on company
time."
Vice testified:
And then Charlie said, "Yes, I have something else to
discuss with you." And, then Charlie continued to talk,
and in talking, then he mentioned that he had occasion
to know that Edgar was organizing and that he did not
want Edgar to do it on company time.
That was about the extent of the meeting. -
Q. (By Mr. Cusak) Did either one of them speak in an
unusual voice?
13 The leaflet purporting to speak for Tolmie refers to events of March 6,
7, 18, and thereafter. He refers to attending a union meeting on March 6,
and on March 7 going to work "bubbling over with enthusiasm for the
Union," and telling "everybody what I thought." It states that people who
talked to him "were obviously reporting to the company executives," etc.
SWITCHCRAFT, INC 473
A. Edgar got mad when Charlie mentioned that he
was organizing , that he was organizing on company
time.
JUDGE: Did he say anything?
THE WITNESS: Did who say anything?
JUDGE: Edgar?
THE WITNESS: Oh, yes, he denied it. He said, "I am
not," he said, "I am not doing it on company time."
And, then Charlie Giesow mentioned, he said, "Well,
Edgar, you are not telling the truth.
And, then Edgar said , "Well, are you calling me a
liar?"
Charlie said, "If the shoe fits, you wear it."
The difference in the testimony in the latter connection is
that Tolmie does not refer to organizing on "company time,"
while both Vice and Wienski on both direct and cross-exami-
nation testified that Giesow referred to organizing bn com-
pany time. In this instance, I believe that Tolmie became quite
upset and angry at the meeting and that Vice and Wienski's
recollection may be better as to the reference to "organizing
on company time" and I accordingly credit them.
Testimony was adduced to show that there was generally
an annual raffle for the Crusade of Mercy, but whether or not
solicitation was permitted on company time was not deve-
loped. On the record evidence, the General Counsel has not
established discriminatory prohibition of employees by Wien-
ski from talking about the Union on work time. The same also
applies to the allegation that Giesow threatened to discharge
an employee if he engaged in union activity. Whether Giesow
threatened to fire Tolmie for organizing on company time or
merely told him he did not want him to do so, does not, under
the circumstances found above, constitute a violation.
Following these discussions with Wienski and Giesow,
Tolmie was assigned to work in a more limited area which
was about half surrounded by mesh wire and referred to by
Tolmie (and occasionally others) as an inspection "cage."
The area was described as comparable to that of the hearing
room. Tolmie said he was restricted because he no longer
went into certain departments. It does appear that in the new
position Tolmie was more restricted than he had been in
moving about the plant, although not within his department.
Wienski explained the reassignment of Tolmie as follows:
THE WITNESS: No, not really, I did make a transcript
that we abolished one area, and I transferred him to
in-coming inspection, which is a very important section.
This is where we deal with our purchased parts, and we
have to get these parts moving as soon as we can, so this
is where I was in dire need of in-coming inspectors, and
I am still looking for more , and this is the reason I made
this transfer
With respect to the foregoing, the evidence does not appear
sufficient to show the reassignment itself was unnecessary.
However, Wienski's threat, supra, to restrict or isolate Tol-
mie, which I have found, appears to be related to Respon-
dent's stated position at the meeting in Giesow's office that
Tolmie was organizing on company time. While Respondent
may have been entitled to prevent him from organizing on
company time, it does not appear proper to threaten (or
impose) isolation to prevent all organizational activity on the
premises . The threat, which I have found Wienski made,
could be so understood. I find that Respondent thereby vi-
olated Section 8(a)(1).
The complaint also alleges that Giesow on March 18
created the impression of surveillance of union activities. It
would appear that this is predicated on the statement, supra,
that reflected the Respondent knew Tolmie was organizing
the Union. Whatever may be a proper rational inference from
a statement which may have various (or no) implications and
susceptible to various inferences, there does not appear to be
the conveyance of an impression of surveillance as to Tolmie,
who was evidently freely advocating the Union to persons
whom he described as "tattle-tales" reporting to Respondent.
Further, if such statement were a violation under the circum-
stances, how could an employer legally bring up the subject
of work interference? I find no such violation by Giesow.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with- the operations of the -
Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing the free flow thereof.
V THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) of the Act,
I will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Switchcraft, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Warehouse and Mail Order Employees Union Local
743, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening employees with reprisal and loss of em-
ployment as a consequence of unionization, by creating the
impression of surveillance among employees regarding their
union activities, by threatening to restrict or isolate em-
ployees because of union activity, and by granting increased
holiday and other benefits to discourage union organization,
Respondent has interfered with, restrained, and coerced em-
ployees in the exercise of their rights guaranteed by Section
7 of the Act, and thereby has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The General Counsel has failed to establish by a pre-
ponderance of the evidence the remaining allegations of the
complaint herein and it will be recommended that said com-
plaint be, to that extent, dismissed
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER14
Respondent, Switchcraft, Inc., its officers, agents, succes-
sors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with reprisals and loss of em-
ployment because of union activities.
(b) Creating the impression of surveillance among em-
ployees regarding their union activities.
(c) Threatening restriction or isolation for engaging in
union activities.
(d) Granting increased holidays and benefits to discourage
union activities.
(e) In any like or related manner interfering with the right
of employees to self-organization, to form labor organiza-
tions, to join or assist Warehouse and Mail Order Employees
Union Local 743, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization, to bargain collectively through re-
presentatives of their own choosing and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any or all
such activities, except to the extent such right may be affected
by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act.
(a) Post at its premises in Chicago, Illinois, copies of the
14 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided by Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
attached notice marked "Appendix."" Copies of said no-
tice, on forms provided by the Regional Director for Region
13, after being signed by an authorized representative of Re-
spondent, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed in all other respects.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with reprisals and
loss of employment because of union activities
WE WILL NOT create the impression of surveillance
among our employees regarding their union activities.
WE WILL NOT threaten restriction or isolation for en-
gaging in union activities. .
WE WILL NOT grant increased holidays or other bene-
fits to discourage union organization.
WE WILL NOT in any like or related manner interfere
with the rights of employees to self-organization, to form
labor organizations, to join or assist Warehouse and
Mail Order Employees Union Local 743, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organiza-
tion, to bargain collectively through representatives of
their own choosing and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any or
all such activities, except to the extent such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as au-
thorized in Section 8(a)(3) of the Act.
SWITCHCRAFT, INC