TW Services

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 698 (N.L.R.B. 1992)

307
309 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 Not included in bound volumes.
1 The Respondent’s corrections to the transcript are hereby made
a part of the record.
Canteen Company—Division of TW Services, Inc.
and Wholesale & Retail Food Distribution
Local 63, International Brotherhood of Team-
sters, AFL–CIO.1 Case 31–CA–17691
November 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 25, 1990, Administrative Law Judge Ger-
ald A. Wacknov issued the attached decision. The
General Counsel filed limited exceptions to the judge’s
decision and a supporting brief.
On January 8, 1992, the Board issued an order re-
manding pProceeding to the administrative law judge
for his consideration of the complaint allegations that
the Respondent had withheld a lump-sum payment
from its Redlands employees in violation of Section
8(a)(3) and (1) of the Act.2 The judge had found that
the Respondent violated Section 8(a)(1) by announcing
that the annual wage review policy had been discon-
tinued and that the employees, should they elect the
Union as their bargaining representative, would receive
no wage increases or additional benefits ‘‘until a con-
tract is negotiated.’’ He did not, however, specifically
rule on the 8(a)(3) allegations in the complaint.
On March 18, 1992, the judge issued the attached
supplemental decision, concluding that the Respondent
has not violated Section 8(a)(3) and (1) of the Act as
alleged, and he reaffirmed his original decision and
recommended Order.
The General Counsel filed exceptions and a support-
ing brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision, the supple-
mental decision, and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Canteen Company—Divi-
sion of TW Services, Inc., Redlands, California, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
Raymond Norton, Esq., for the General Counsel.
Susan S. Grover, Esq. (Lillick & McHose), of Los Angeles,
California, for the Respondent.
John A. Siequeiros, Esq. (Wohlner, Kaplon, Phillips, Vogel,
Shelley & Young), of Encino, California, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing with respect to this matter was held
before me in Los Angeles, California, on December 14 and
15, 1989. The initial charge was filed on May 22, 1989, by
Wholesale & Retail Food Distribution Local 63, International
Brotherhood of Teamsters AFL–CIO (the Union).
Thereafter, on June 30, 1989, the Regional Director for
Region 31 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing in Case 31–CA–
17691 alleging a violation by Canteen Company—Division
of TW Services, Inc. (Respondent) of Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act).
Pursuant to a representation petition filed by the Union on
May 4, 1989, in Case 31–RC–6578, an election by secret
ballot was conducted on June 16, 1989. The tally of ballots
reflects that of the approximately 27 eligible employees, 25
cast ballots, of which 12 were cast for the Union, and 13
were cast against the Union. There were no challenged or
void ballots. Thereafter, the Union filed timely objections to
the election. On July 11, 1989, pursuant to a Report on Ob-
jections, order directing hearing, notice of hearing, and order
consolidating cases, the objections issue was consolidated by
the Regional Director with the unfair labor practice proceed-
ing for the purpose of hearing, ruling, and decision by an ad-
ministrative law judge.
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from the General Counsel, counsel for
the Union, and counsel for Respondent.
On the entire record,1 and based on my observation of the
witnesses and considerations of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation, with an office
and place of business located in Redlands, California, where
it is engaged in providing contract food and vending serv-
ices. In the course and conduct of its business operations, the
Respondent annually purchases and receives goods or serv-
ices valued in excess of $50,000 directly from suppliers lo-
cated outside the State of California.
It is admitted, and I find, that the Respondent is now, and
has been at all times material, an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is now, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONABLE CONDUCT
A. The Issue
The principal issue raised by the pleadings and the Report
on Objections is whether the Respondent’s announcement of
the withholding of a bonus or wage increase prior to the
election, and the deferral of such bonus or wage increase
until shortly after the election, violated Section 8(a)(1) and
(3) of the Act, and constituted conduct requiring the setting
aside of the results of the election and the conducting of a
rerun election.
B. The Facts
On or about May 16, 1987, and April 16, 1988, the Re-
spondent granted bonuses in the amount of $500 for regular
full-time employees and in the amount of $250 for regular
part-time employees. The Respondent variously refers to
such increases as bonuses, lump-sum payments, wage in-
creases, or cost-of-living increases, but the record clearly
shows, and the Respondent emphasizes, that however the ad-
ditional compensation is characterized, it constitutes the em-
ployees’ wage increase for the year.
On May 4, 1989, the Union filed a petition for an election
in the following described unit:
All full-time and regular part-time route service em-
ployees, utility employees, maintenance employees,
warehouse employees, and vending attendants employed
by the Employer at, or who report to or who work out
of, the Employer’s location at 505 New Jersey Ave.,
Redlands, California; excluding office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act.
In mid-May 1989, prior to the time that an election date
has been scheduled, the Respondent’s district manager,
James Whitlock, held several meetings with different groups
of unit employees, and read a prepared speech to them. The
route service employees, who apparently constitute over 50
percent of the aforementioned unit, were assembled at one of
these meetings. Whitlock’s speech to these and the other
groups of employees is as follows:
There is going to be an Election conducted by
NLRB, an Agency of the Federal Government. This
will be a secret ballot election. No date has been set for
this election, but I expect a June date.
This is very important for you, your family and the
Company. It will determine if you are to be represented
by a Union. Election will be by majority vote.
If any of you have signed a Union Card, you do not
have to vote for the Union, as it will be a secret ballot
and no one will know how you vote.
I am concerned about promises that the Union may
have made to you. Union promises are like politican
[sic] promises, easy to make, hard to keep.
The only guarantee you will have if the Union is
voted in, is that the Company will sit down and bargain
in good faith.
But the Company does not have to do anything that
it feels is not in its best interest when it bargains with
the Union.
Bargaining means starting with a clean slate. Every-
thing you have is on the table and can be negotiated.
There are no guarantees as to what you will end up
with in negotiations. If anyone has guaranteed you any-
thing, have them put it in writing. They will not do it.
Right now, some of you are wondering where your
annual wage increase is. By law, now that an election
petition has been filed, I cannot give you any wage in-
creases or change any benefits you currently have.
If you select the Union as your representative, there
will be no change in wages or benefits until a contract
is negotiated.
Negotiations can be a long drawn out procedure, es-
pecially with a First Contract (Quote—L.A. Contract).
Nothing will change during this process.
If you vote no for the Union, I can’t promise you
what will happen as far as wages and benefits because
Federal Law forbids my promising you anything as that
could be viewed as trying to buy your vote.
I will be talking to you some more about other issues
I am concerned about. I want to make sure you have
both sides of this story before you make this very im-
portant decision.
If you have any questions, I will try to answer them.
If I don’t know the answers, or if there are legal issues,
I will get back to you.
Whitlock testified that during a question-and-answer pe-
riod following his speech, he was asked by one of the route
drivers whether the employees were going to receive their
annual bonuses. Whitlock replied that ‘‘Federal law prohibits
me from promising you anything that could be viewed as try-
ing to buy your vote.’’ Further, he told the employees that
‘‘the contract in L.A. had not been signed and that we would
be reviewing wages and compensation once the contract in
L.A. had been signed.’’
According to Whitlock, his reference to the signing of a
contract in Los Angeles was understood by the employees to
mean that the Redlands bonuses were dependent on the out-
come of current bargaining negotiations which were then tak-
ing place in the Los Angeles area between another Teamsters
local and a different facility of the Respondent, which con-
tract is viewed as a ‘‘bench mark’’ for the increases that the
Redlands employees will receive. In fact, Whitlock testified
that well before the petition herein was filed, and thereafter,
employees who inquired about their anticipated bonus were
told by Whitlock and other supervisors that the bonus was
dependent upon the terms of the succeeding 3-year Los An-
geles contract.
Thus, Whitlock testified that a year earlier, at a breakfast
meeting on April 20, 1988, during which he distributed the
1988 bonus checks, he referred to the 1989 wage increase
evaluation as follows:
I specifically stated that nothing would change in
Redlands until after the [1989] L.A. contract was
signed. . . . that is the procedure we had used in pre-
309TW SERVICES
vious contract talks, and, you know, that was going to
be the format in 1989, that we would not change any-
thing until the L.A. contract had signed and we had a
chance to review what was being done in L.A.
Respondent’s maintenance supervisor, Lon Guest, testified
that when the employees under his supervision asked him
whether they would be getting a raise in the form of a bonus
or a weekly wage increase in 1989, Guest told them that he
did not know but that ‘‘like in the past, we’ll use [the Los
Angeles contract] as a guideline.’’
Neil Hulick, Respondent’s corporate general manager, tes-
tified that the Los Angeles contract set the precedent for
wage increases in Redlands.
Route Supervisor Marvin Rhine testified that ‘‘The L.A.
contract or the L.A. union contract is always revised yearly,
and we base our compensation on that review.’’
Several supervisors corroborated Whitlock’s testimony re-
garding the statements Whitlock made about the bonus dur-
ing the mid-May 1989 question-and-answer period, and about
the employees’ general knowledge that the Respondent’s
wage increase policy was tied to the Los Angeles contract.
David Daigle, a former employee, testified that after
Whitlock read his prepared speech, he was asked by one of
the employees when the employees could expect their bonus
check. Whitlock replied that ‘‘we would not be getting the
[bonus] checks because of this Union thing and he didn’t
know whether or not we were going to get them until this
Union thing had come to an end, until it was over.’’ This
reply by Whitlock precipitated a heated discussion among the
assembled employees and it was suggested that the employ-
ees vote against the Union in order to get their bonus checks.
According to Daigle, there was no question that the employ-
ees would not be receiving their bonus checks ‘‘until this
Union thing was over. And we all needed the bonus
checks.’’ During this discussion Whitlock was standing be-
hind the desk ‘‘with a kind of Cheshire Cat smile,’’ and at
no time did Whitlock state or imply that the bonus checks
were dependent upon the outcome of the Los Angeles con-
tract negotiations.
Alfred Cromwell, a former employee, testified that in re-
sponse to the question about the bonus checks, Whitlock re-
plied, ‘‘There will be no pay increase or bonus check until
such time this Union dispute is solved.’’ Cromwell testified
that while Whitlock mentioned something about the Los An-
geles contract during the course of his prepared speech, at
no time either during the speech or thereafter did Whitlock
tell the group of employees that whatever bonus they would
be receiving was dependent upon the outcome of the Los
Angeles negotiations.
Steven Farley, a current employee, testified that Whitlock
did not state or imply that the bonuses could not be paid
until the Los Angeles contract had been negotiated.
The election was held on June 16, 1989. The vote was 13
to 12 against the Union. The Los Angeles contract was
signed by the parties on June 2, 1989. On June 26, 1989, the
Respondent granted the employees a weekly wage increase,
retroactive to May 31, 1989, in the total annual amount of
$500. The following letter, announcing the wage increase,
was distributed to each of the employees:
I want to express my personal thanks to the majority
of you who expressed their confidence in Canteen Man-
agement by voting NO UNION on June l6th. To those
of you who did vote for the union, I want to assure you
that there will be no discrimination against you because
of your actions, and I can assure you that all employees
will be treated in a fair and consistent manner.
Even though the Teamsters lost the election, they
have protested the vote claiming that the Company
postponed a scheduled yearly wage increase because of
the election campaign. THIS IS ABSOLUTELY
FALSE. At the time the Teamsters filed their petition,
the Company had made no decision on the amount of
any wage increase, or the date when it would go into
effect. We were waiting for the conclusion of the Com-
pany’s negotiations in Los Angeles before deciding
these increases.
The Teamsters are attempting to convince the NLRB
that the Company held up a ‘‘scheduled’’ increase to
influence your vote. WHY ARE THEY DOING THIS?
IN ORDER TO GET A RE-VOTE WITHOUT HAV-
ING TO WAIT ONE YEAR. What really makes me
mad is that if the Company had given a wage increase
during the election campaign, and the union lost, they
probably still would have protested the vote claiming
that we gave the increase just to influence you to vote
no union.
The legal challenges to the election could go on for
months. I do not want to see any employees suffer be-
cause of these legal challenges. Therefore, we have de-
cided to give a wage increase retroactive to May 31,
1989, on the following basis:
*Commission Employees: $16.00 per week
*Hourly Employees: 40 cents per hour
In addition, hereafter, the Company will review
wages and benefits on May 31st of each year.
Again, I want to thank you for the confidence you
have shown in the Canteen Management Team.
Analysis and Conclusions
The record is clear that although the employees anticipated
a bonus or wage increase in April or May of 1989 similar
to the bonuses granted at about the same time in 1987 and
1988, no specific wage increase was promised to the employ-
ees prior to the time the election petition was filed. In mid-
May 1989, during Whitlock’s speech to the employees about
the Union, the employees were told for the first time that be-
cause of the filing of the election petition they would no
longer be receiving the annual wage increase they had antici-
pated; and that any annual wage increase which they may
otherwise have received would not be granted in the event
that a majority of the employees voted for the Union be-
cause, as Whitlock said, ‘‘If you select the Union as your
representative, there will be no change in wages or benefits
until a contract is negotiated.’’
In fact, however, the Respondent’s policy had always been
to use the Los Angeles contract as a ‘‘bench mark’’ or stand-
ard for adjusting the compensation of the Redlands employ-
ees. Indeed, as the evidence proffered by the Respondent
abundantly demonstrates, the employees had been made well
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The General Counsel’s belated request, in his brief, to amend the
complaint by including an allegation that the Respondent’s post-
election granting of the wage increase is violative of the Act is de-
nied.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
aware of this policy on various occasions prior to the advent
of the Union.
I do not credit the testimony of Whitlock and those indi-
viduals who corroborated his testimony regarding his alleged
statement to the assembled employees in mid-May 1989
about the Los Angeles negotiations. It is highly unlikely that
Whitlock would have refrained from mentioning a matter of
such significant import to the employees during his prepared
speech to the employees, and relegate the dissemination of
this information to the question-and-answer period thereafter.
Thus, I find that Whitlock did not tell the employees that the
Respondent would be reviewing the wages and compensation
once the Los Angeles contract was signed. In this regard I
credit the testimony of employees Daigle, Cromwell, and
Foley, each of whom impressed me as a credible witness
with an accurate recollection of the event.
Thus it follows that Whitlock, by omitting any reference
to the continuation of this policy during his speech to the
employees, effectively nullified this policy by advising the
employees that any future wage increases were dependent
upon the outcome of the election rather than, as the Re-
spondent has demonstrated, upon the outcome of contract ne-
gotiations.
I find that the Respondent’s policy of using the Los Ange-
les contract as a benchmark for evaluating the annual wage
increases for its Redlands employees had become a well-pub-
licized and consistently applied past practice, to the extent
that the Redlands employees had been made fully aware that
they could expect the Respondent to evaluate their wages
upon the signing of each Los Angeles contract, and annually
thereafter. Under the foregoing circumstances, the Respond-
ent was required to continue this past practice subsequent to
the filing of the election petition.
In H.S.M. Machine Works, 284 NLRB 1482, 1484 (1987),
the Board stated as follows:
An employer is generally required to grant wage in-
creases while a representation petition remains pending
as if the petition had never been filed. Where, however,
the employer’s past practice is haphazard, the employer
may lack objective evidence to substantiate its claim
that the increases it gave are the same as they would
have been in the absence of the petition. Accordingly,
the Board has fashioned a limited exception to the em-
ployer’s general duty to act as if the petition had not
been filed: The employer may withhold the increases
provided it truthfully tells its employees that it has
merely postponed or deferred the increases and that it
has done so only to avoid the appearance that it inter-
fered with the election. The purpose of these pre-
cautions is to avoid placing the onus for the employer’s
decision on the union. [Footnote citations omitted.]
In Uarco, Inc., 169 NLRB 1153 (1968), the Board set
forth its rationale in a case involving the employer’s post-
ponement of expected, but nonspecific, benefits:
The Employer made clear in its campaign statements,
as set forth above, that whether or not its employees
were represented by a union, it planned to continue its
established practice of adjusting wage rates in early
April of each year, pursuant to its annual wage survey,
to bring them into conformity with prevailing rates in
the area; and that the sole purpose of its announcement
postponing the expected adjustments in wage rates and
benefits for the employees involved was to avoid the
appearance that it sought to interfere with their free
choice in any elections which might be directed. In the
circumstances, we do not believe that the employees
could reasonably have concluded, nor do we conclude,
that the Employer’s postponement of adjustments in
their rates and benefits was intended to influence their
decision in the question concerning their representation
for purposes of collective bargaining. [Footnote omit-
ted.]
Thus, Board law requires that, as in Uarco, where an em-
ployer has an established past practice or policy of adjusting
wages, the employer may postpone expected adjustments in
employees’ wages in order to avoid the appearance of elec-
tion interference provided that it makes clear in its campaign
statements that it will continue its established past practices
regardless of whether or not its employees elect to be rep-
resented by a union. Cf. Singer Co., 199 NLRB 1195 (1972);
The Great Atlantic & Pacific Tea Co., 192 NLRB 645
(1971).
The Respondent’s conduct herein does not comport with
the aforementioned case precedent. Thus, during the course
of an antiunion speech, Whitlock in effect advised the em-
ployees that the Respondent’s annual wage review policy had
been discontinued and that the employees, should they elect
the Union as their bargaining representative, would receive
no wage increases or additional benefits ‘‘until a contract is
negotiated.’’ By such statements the Respondent caused the
employees to believe that any wage increase they may have
otherwise received would not be granted because of their
union activity. Such conduct, I find, is violative of Section
8(a)(1) of the Act and, moreover, mandates that the election
be set aside.2
CONCLUSIONS OF LAW
1. The Respondent, Canteen Company—Division of TW
Services, Inc., is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the Act
as alleged and, by the same conduct, has interfered with the
election previously conducted.
THE REMEDY
The Respondent shall be ordered to cease and desist from
engaging in the unfair labor practices found herein, and to
post an appropriate notice, attached hereto as ‘‘Appendix.’’
Based on the foregoing findings of fact, conclusions of
law, and the entire record herein, I hereby issue the follow-
ing recommended3
311TW SERVICES
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 The Respondent filed no exceptions to my original decision, and
on July 20, 1990, the Board granted the General Counsel’s motion
to sever and remand representation Case 31–RC–6578, setting aside
the election conducted, insofar as the record evidence shows, on on
June 16, 1989. While the Board states in its remand order at footnote
1 that the first election was conducted on May 4, 1989, this appears
to be an inadvertent error.
ORDER
The Respondent, Canteen Company—Division of TW
Services, Inc., Relands, California, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Telling employees that any wage increase they may
otherwise have received will no longer be granted to them
because of their activity on behalf of the Union.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Redlands, California facility copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the notice,
on forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the Union’s objection
to the election held by the Board in Case 31–RC–6578 be
sustained, that the results of said election be set aside, and
that the case be remanded to the Regional Director for Re-
gion 31 for the purpose of conducting a second election.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT tell employees that they will not be entitled
to receive or be considered for an annual wage increase if
they select the Union as their bargaining representative.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed by the National Labor Relations Act.
CANTEEN COMPANY—DIVISION OF TW SERV-
ICES, INC.
SUPPLEMENTAL DECISION
By Order dated January 8, 1992, the Board remanded this
matter to me for consideration of two related matters, name-
ly, whether, as alleged in the complaint, Respondent withheld
a lump-sum payment from its Redlands employees in viola-
tion of Section 8(a)(3) and (1) of the Act; and/or whether it
delayed the granting of a wage increase in violation of Sec-
tion 8(a)(3) and (1) of the Act.
In my initial decision I found that:
[T]he Respondent’s policy of using the Los Angeles
contract as a benchmark for evaluating the annual wage
increases for its Redlands employees had become a
well-publicized and consistently applied past practice,
to the extent that the Redlands employees had been
made fully aware that they could expect the Respondent
to evaluate their wages upon the signing of each Los
Angeles contract, and annually thereafter. Under the
foregoing circumstances, the Respondent was required
to continue this past practice subsequent to the filing of
the election petition.
I concluded that:
[D]uring the course of an antiunion speech, Whitlock
[the Respondent’s district manager] in effect advised
the employees that the Respondent’s annual wage re-
view policy had been discontinued and that the employ-
ees, should they elect the Union as their bargaining rep-
resentative, would receive no wage increases or addi-
tional benefits ‘‘until a contract is negotiated.’’ By such
statements the Respondent caused the employees to be-
lieve that any wage increase they may have otherwise
received would not be granted because of their union
activity. Such conduct, I find, is violative of Section
8(a)(1) of the Act and, moreover, mandates that the
election be set aside.1
The facts, as set forth in my initial decision, show that the
Respondent’s Los Angeles contract, which was used as a
benchmark for evaluating the wage increase for its Redlands
employees, was entered into on June 2, 1989. Thereafter, on
June 26, 1989, 10 days after the June 16, 1989 representation
election, the Respondent granted a wage increase to its Red-
lands employees, retroactive to May 31, 1989. The an-
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nouncement of the wage increase was made on June 26,
1989, by letter, which contained, inter alia, the following:
At the time the Teamsters filed their petition, the
Company had made no decision on the amount of any
wage increase, or the date when it would go into effect.
We were waiting for the conclusion of the Company’s
negotiations in Los Angeles before deciding these in-
creases.
. . . .
The legal challenges to the election could go on for
months. I do not want to see any employees suffer be-
cause of these legal challenges. Therefore, we have de-
cided to give a wage increase retroactive to May 31,
1989, on the following basis:
*Commission Employees: $16.00 per week
*Hourly Employees: 40 cents per hour
In addition, hereafter, the Company will review wages
and benefits on May 31st of each year.
The Respondent did not grant its employees a bonus or
lump-sum payment in 1989 as it did in 1987 and 1988. As
stated in my initial decision, the Respondent variously refers
to increases in employees’ compensation as bonuses, lump-
sum payments, wage increases, or cost-of-living increases.
The credible record evidence shows that the Respondent may
elect any of these methods of increasing its employees’ com-
pensation, or may elect to grant no increase in compensation;
further, it is clear that historically only one increase per year,
regardless of how it is characterized, is mutually exclusive
of the other types of possible increases. Thus, there is no
record evidence that the Respondent has ever given both a
bonus and an hourly or weekly wage increase to its employ-
ees.
The Los Angeles contract, executed on June 2, 1989, pro-
vided for a wage increase retroactive to January 1, 1989; the
amount of the increase was of 40 cents per hour, or $16 per
week for the employees covered by that contract. The Red-
lands employees were given the identical wage increase, but
it was made retroactive only to May 31, 1989. In 1987 and
1988, bonuses, rather than a wage increase, were given to the
Redlands employees on or about May 16 and April 16, re-
spectively. There was no established date for the granting of
such bonuses, but the employees had come to expect them
within the same general time frame.
As found in my initial decision, but explained more fully
herein, the gravamen of the violation of Section 8(a)(1) of
the Act was the fact that the Respondent, rather than advis-
ing its employees that they would be receiving an increase
of some sort when the Los Angeles contract had been signed,
unlawfully placed the onus of the delay on the filing of the
representation petition and the scheduled election, and caused
the employees to believe that, contrary to past practice, they
would not be any type of increase upon the signing of the
Los Angeles contract. Had the Respondent told its employees
that they would be receiving an increase of some sort which
would be determined following the signing of the Los Ange-
les contract, which was in fact the case, I would have found
no violation. Further, had the Respondent told its employees
that they could expect a wage increase after the election,
with the accompanying explanation that the increase was
being postponed in order to avoid the appearance that the
Respondent sought to interfere with the election, I similarly
would have found no violation because, historically, the Re-
spondent did not always grant increases at the same time or
in the same amount. Thus, the Respondent violated Section
8(a)(1) of the Act by attempting to make it appear that there
would be no increase whatsoever as a result of the advent
of the Union, rather than advising its employees of the true
reason for delaying the 1989 increase.
James Whitlock, district manager of the Respondent’s
Redlands facility, testified that although the Los Angeles
contract was signed on June 2, 1989, he and other represent-
atives of the Respondent, Neil Hulick, general manager of
the Respondent’s Compton, California facility and
Whitlock’s superior, and Harold Taegel, a representative of
the corporate office, did not commence their deliberations re-
garding the amount of the Redlands increase until June 16,
1989, the day of the election. There were ongoing discus-
sions thereafter, and the agreed-upon increase was announced
to the employees on June 26, 1989, the very day that the de-
cision was made. When asked why he and the other individ-
ual did not meet around the first part of June or shortly
thereafter to discuss the Redlands increase, Whitlock ex-
plained:
It is my understanding that for me to enter into nego-
tiations as far as increasing wages and that kind of
thing when we were looking at a NLRB election, and
that, you know, we felt that it would be viewed as, you
know, trying to change the outcome of the election.
You know, if we got together on June 1st and decided
on June 15th that we were going to give a pay increase
and June 16th is the date of the election, you know, I
think we would have a problem with that. I think our
people would have a problem with that because I think
even they would have thought we were trying to buy
their votes.
Whitlock said that he did not attempt to contact Hulick or
Taegel at any time between the Los Angeles contract settle-
ment date and the election, and agreed that the delay in con-
sidering the increase was a ‘‘conscious decision’’ on the part
of management, because it was believed that to put it into
effect prior to the election would have been misconstrued as
an unlawful attempt to influence the election. Whitlock said,
however, that there also was a problem of ‘‘timing’’ in-
volved, as Tagel, who did not testify in this proceeding, may
not have been available to discuss the matter.
Neil ‘‘Bud’’ Hulick, is general manager of the Compton,
California facility, and directs the activities of the Greater
Los Angeles Area of the Respondent, including the Redlands
facility. Hulick negotiated the Los Angeles contract. He testi-
fied that during these negotiations he knew that the Redlands
employees would be getting an increase upon the signing of
the agreement; but he did not know the form or the amount
of the increase, as this could not be known, or even dis-
cussed, until after a contract had been reached. Hulick testi-
fied that there were no discussions concerning any increase
for the Redlands employees until June 16, 1989, ‘‘because
we were waiting I think to see what the results of the elec-
tion were.’’ He also testified that, ‘‘The election was a key
to any type of activity, obviously. We had settled the con-
tract, and then we had to wait until the election was over.’’
313TW SERVICES
2 In my initial decision, p. 6, L. 8, I erroneously stated that the
total amount of the 1989 wage increase was $500. Rather, it appears
that the total yearly amount is approximately $832.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Hulick also credibly explained that while the Los Angeles
contract is a key factor in the equation, the Redlands em-
ployees do not automatically receive the amount or type of
increase contained in the Los Angeles contract. Rather, other
variable must be considered, including the economic market
in which the Redlands facility is located, the profitability of
the Redlands facility, and the wages paid by non-union com-
petitors of the Respondent in the Redlands geographic area.
Supplemental Analysis and Conclusions
The record evidence is clear that there is only one yearly
increase paid to the Redlands employees, and that, contrary
to the apparent contention of the General Counsel, the Red-
lands employees would not have received both an hourly
wage increase and a bonus in 1989. I so find.
It is also clear that, as Hulick credibly testified, the
amount or type of increase for the Redlands employees,
while dependent upon the increase in the Los Angeles con-
tract, is not necessarily always the same as the wage rates
of that contract, as the Redlands facility competes with non-
union competitors, and various factors in addition to the Los
Angeles wage rates, are weighed prior to determining the
yearly increase at the Redlands facility.
It is admitted that the Respondent delayed the implementa-
tion of its wage increase for the Redlands employees until
after the election. I find that since it took the Respondent’s
representatives only 10 days to decide upon the type and
amount of raise (from June 16 to June 26, 1989), the Re-
spondent would have been able to grant this raise within the
fourteen day period between the signing of the Los Angeles
contract (June 2) and the date of the election (June 16).
However, I conclude that it was not unlawful for the Re-
spondent to delay the implementation of the raise because,
in agreement with Whitlock and Hulick, to grant such a raise
shortly before the election would have created the appear-
ance of attempting to influence the results. This is because
the Respondent had no usual and customary method of grant-
ing increases; the amount and type of the raise was not read-
ily ascertainable, but was dependent upon a subjective eval-
uation of profitability and the competitive situation in the
Redlands geographic area; and the increase in hourly and
weekly wages implemented after the signing of the Los An-
geles contract differed both in amount2 and type from the bo-
nuses or lump-sum increases granted the Redlands employees
in the 2 preceding years.
Therefore, even though, as set forth in my initial decision,
the Respondent has violated Section 8(a)(1) of the Act by
making untruthful statements regarding its reasons for delay-
ing the expected increase, I further find that the Respondent
did not violate Section 8(a)(3) and (1) of the Act by delaying
the increase until after the election. See H.S.M. Machine
Works, 284 NLRB 1482 (1987); Uarco, Inc., 169 NLRB
1153 (1968).
CONCLUSION OF LAW
The Respondent has not violated Section 8(a)(3) and (1)
of the Act as alleged.
ORDER
I reaffirm the conclusions of law, remedy, and order con-
tained in my initial decision in this matter.3