H.S.M. Machine Works, Inc. And Cove Aircraft Products, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1987

284 N.L.R.B. 1482 (N.L.R.B. 1987)

1482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H.S.M. Machine Works, Inc. and Cove Aircraft
Products, Inc. and Local 463, International
Union of Electronic, Electrical, Technical Sala-
ried and Machine Employees, AFL-CIO. Cases
29-CA-11289 and 29-CA-11781
29 July 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 16 June 1986 Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent, the General Counsel, and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed a brief in answer
to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
The Respondent, the General Counsel, and the Charging Party have
each excepted to some of the judge's credibility findings. The Board's es-
tablished policy is not to overrule an administrative law judge's credibil-
ity resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
In adopting the judge's finding that Respondent Vice President Ronald
Gale did not initiate and assist in drafting a petition circulated 21 August
1984, we do not rely on the judge's statement in sec. II,(f), par. 5 of his
decision, that Gale denied participating. Gale in fact did not deny partici-
pating. We nevertheless adopt the judge's finding based on employees
Clarke Barley's and Patsy Defio's credited testimony denying Gale's par-
ticipation and because we find no basis for reversing the judge's decision
to discredit employee Peter Weeks' testimony that Gale did participate.
In adopting that finding, we also do not rely on the judge's statement,
"[A]s the [Respondent's] contract offer was so favorable to the [Respond-
ent], it seems somewhat unlikely that management would at the same
time, scheme to have its final offer rejected." We rely instead on the
other reasons the judge cited and his credibility resolutions discussed
above.
We note the following additional errors in the judge's decision:
In sec. II,(b), par. 1, and elsewhere in his decision, the judge spelled
William Lehmaim's surname as "Lehman," Ronald Gale's surname as
"Gayle," and Roy Bartel's surname as "Bartels."
In sec. II,(d), par. 1, and elsewhere in his decision, the judge spelled
Clarke Barley's name as "Clark Early," Patsy Delio's name as "Pat
Deleo," and James Kloppenburg's surname as "Kloppenberg."
In sec. II,(d), par. 5, the judge stated employee Carlos Zuniga, "in a
prior statement made by the Board's agent who investigated this case,"
stated that Clarke Earley asked him to sign a decertification petition.
Zuniga actually made that statement in a telephone conversation with the
Board agent.
In sec. II,(g), pars. 3, 6, and 7 of his decision, the judge stated that the
Respondent told employees "merit increases were not being given while
the petition was pending because it would give the appearance that the
company was buying votes" and that wages "were frozen in order to
prevent the appearance of 'bribery." According to Respondent President
Wigley's uncontradicted testimony, Wigley actually told those employees
who asked for a merit increase that the Respondent "couldn't grant raises
. . . because there was a decertification petition pending . . [a]nd . . it
might be construed as [an] unfair labor practice." Respondent Vice Presi-
dent William Lehmann testified, also without contradiction, that he told
employees who asked for an increase, "we could not grant any increase
conclusions2 only to the extent consistent with this
Decision and Order.
Contrary to the judge, we find that the Respond-
ent violated Section 8(a)(1) of the Act by coercive-
ly interrogating employees Efrain Torres and Mi-
chael Serino, by withholding merit wage increases
from its employees after its employees filed a de-
certification petition, and by placing the onus for
its decision to withhold the increases on the Union.
1. Torres testified that either the day before or
the day after employees began circulating a decer-
tification petition in the plant Respondent President
Frank B. Wigley approached Torres at the plant's
timeclock and said, "[Y-Jou know some people they
are with the union, some people they are with the
company." He then asked Torres, "[W]hat do you
thinkr.1" Torres replied, "I'm with the company."
Wigley did not deny interrogating Torres or oth-
erwise dispute his testimony.
The judge found Wigley's interrogation "at best,
inconsequential." 3 We do not agree. Rather, we
find Wigley's question to Torres coercive under
the circumstances. Wigley's question indicates that
Torres had not previously revealed his support or
while . . . this petition is pending . . . [a]nd we had been advised by
counsel not to do so."
In par. 7 of that section, the judge incorrectly stated the Respondent
told employees that wages "were frozen in order to prevent the appear-
ance of 'bribery." There is no evidence the Respondent made such a
statement. The judge's reference to "bribery" evidently refers to a state-
ment made by an attorney some of the employees hired to help them
with their decertification petition. According to employee Clarke Earley,
the attorney told him that "the NLRB could interpret a merit raise as a
bribe because the petition was pending."
In a chart set out in sec. II,(g), par. 9, the judge referred to "James
Bailery" rather than "James Bailey," "Tony DiaMaleo" rather than
"Tony D'Amalio," "John DeLiso" rather than "John Deliso," and
"Carlos Zunega" rather than "Carlos Zuniga."
In a chart set out in sec. II,(g), par. 4, the judge erroneously indicated
that employee Frank DiGristina did not sign the petition to reject the
parties' collective-bargaining agreement. In fact, he did sign that petition.
The judge's fn. 13 should read "Peter Weeks became a shop steward in
April 1985."
2 In adopting the judge's conclusion that the Respondent violated Sec.
8(a)(5) and (1) by refusing to furnish to the Union information regarding
cash payments it made to its employees, we find it unnecessary to rely on
the judge's citation of Custom Masonry of Topeka, 269 NLRB 532 (1984),
in sec. II,(g), par. 22 of his decision. No exceptions were filed to the sub-
stantive findings in that case and the Board thus did not review them. We
also find it unnecessary to rely on the judge's suggestion in the following
paragraph that "it would not be a bad idea" for the Respondent to "have
an account of such payments."
In adopting the judge's conclusion that the Respondent violated Sec.
8(aX5) and (1) by modifying the parties' contractual cost-of-living wage-
adjustment provision without the Union's consent by giving a 12-cent-
per-hour increase, we note that the contract called for a 10-cent-per-hour
increase. We also note that Respondent Vice President Lehmann an-
nounced on 8 February 1985 that the adjustment would be made on 11
February. Several witnesses testified, however, that the adjustment was
not made until later in the month. The contract called for the adjustment
to be made 22 February.
3 The judge did not clearly credit or discredit Torres' testimony.
Since, as indicated above, Wigley neither denied nor disputed Torres'
claim, we find that conversation occurred as Torres testified. See McDon-
nell Douglas Corp. v. NLRB, 655 F.2d 932, 938 (9th Cir. 1981), cert.
denied 455 U.S. 1017 (1982).
284 NLRB No. 136
H.S.M. MACHINE WORKS 1483
lack of support for the Union to Wigley. Further,
the question specifically sought Torres' personal
sympathies. The question also took place against a
background of other unfair labor practices, one in
particular which demonstrated to employees the
Respondent's hostility to the Union. As discussed
more fully in the judge's decision, during the
Union's plant visits pursuant to the parties' collec-
tive-bargaining agreement, the Respondent fol-
lowed union representatives through the plant and
made or appeared to make notes in a notebook as
employees spoke to the representatives.
Accordingly, we find the Respondent violated
Section 8(a)(1) by coercively interrogating Torres.4
2. We also find that the Respondent violated
Section 8(a)(1) by coercively interrogating machine
operator Michael Serino. The judge did not discuss
Serino's testimony in which he described the inter-
rogation. Serino's testimony, however, is uncontra-
dicted.5
As indicated above, the parties' collective-bar-
gaining agreement permits the Union access to the
plant during working hours to ascertain whether
the contract is being observed and to assist in ad-
justing grievances. While the Union visited the
plant in October 1984, Serino briefly discussed his
eligibility for health benefits with one of the
Union's representatives. About 10 minutes later,
Wigley approached Serino at his machine. Serino
testified, "[Hie came over and asked me how my
job was doing and all and then he asked what I
was talking to the union about." Serino told
Wigley what they discussed.
Wigley told Serino he was not eligible for hospi-
talization benefits and that "it was no good for
[Serino] to send the papers in, that they couldn't do
nothing for [him]."
In December 1984 Serino again spoke to a union
representative in the plant during a contractual
visit, About 10 to 15 minutes later Wigley again
approached Serino at his machine. Serino testified,
"He asked me if me and the union was speaking
about the hospitalization again." Serino said they
were and Wigley told Serino, "The union, you
know, tries to be nice but, you know, sometimes
they can't always help you out."
We find Wigley's questions to Serino coercive
under the circumstances. Although the information
Wigley actually obtained was innocuous, Wigley's
asking Serino what he talked to the union repre-
sentatives about is the type of question that could
reasonably tend to discourage employees from talk-
4 See Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub
nom. Hotel & Restaurant Employees Local II It NLRB, 760 F.26 1006
(9th Or. 1985).
5 See McDonnell Douglas Corp. v. NLRB, supra, 655 F.2d at 938.
lug freely with the representatives in the future or,
perhaps, from talking to them at all.
Accordingly, we fmd that the Respondent violat-
ed Section 8(a)(1) by coercively interrogating
Serino.
3. As indicated, we also find, contrary to the
judge, that the Respondent violated Section 8(a)(1)
of the Act by withholding merit wage increases
from its employees after its employees filed a de-
certification petition, and by placing the onus for
its decision to withhold the increases on the Union.
The Respondent and the Union agreed not to
formalize a merit wage increase practice in their
collective-bargaining agreement. The Union instead
was content to permit the Respondent to continue
its past practice unilaterally. The increases the Re-
spondent traditionally gave were, as the judge
found, "haphazard"; they were fixed in neither
time nor amount.
On 21 June 1984, the day the Respondent's em-
ployees filed a decertification petition with the
Board, the Respondent stopped granting additional
merit wage increases. Initially, it did not generally
announce its decision to its employees. Rather, it
told employees individually when they asked for an
increase, that the Respondent "couldn't grant raises
. . . because there was a decertification petition
pending . . . [a]nd . . it might be construed as
[an] unfair labor practice," or because the Re-
spondent "had been advised by counsel not to do
so."6 There is no evidence as to how many em-
ployees asked for an increase and were given this
explanation.
Also on 21 June 1984 the Respondent barred
Union Representative Arnold Bernardini from
making contractual visits to the plant. The Union
filed an unfair labor practice charge which blocked
the decertification petition from being further proc-
essed. The parties then referred the Respondent's
decision to bar Bemardini to arbitration pursuant
to their collective-bargaining agreement. The Re-
gional Director thus deferred processing the unfair
labor practice charge any further pending arbitra-
tion. The arbitrator died before issuing a decision.
By February 1985 Bernardini had retired.
On 8 February 1985, in its only general an-
nouncement to employees, the Respondent read the
following statement:
1. As you are all aware, the vote you have
requested to determine representation via a de-
certification petition, will not come about until
the Bemardini matter is resolved.
The facts appear here as corrected in fn. 1 of this decision.
1484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This matter is now in an arbitration pro-
ceeding which has dragged on for a period of
over 3 months. As of last week it appeared
that it would continue in that direction for a
long period of time.
To further complicate matters, the state ap-
pointed arbitrator died last week.
The result of his untimely death is that we
will have to begin the arbitration proceedings
all over again with a new arbitrator.
In view of this situation, the management of
H.S.M., in the interest of all parties, has decid-
ed to allow Mr. Bernardini access to the man-
ufacturing areas of the plant.
This action will eliminate the need to arbi-
trate this issue any further.
2. As of February 11, 1985 all bargaining
unit employees will receive a [12-cent] per
hour cost of living adjustment.
3. Over the next several weeks we will
resume our long standing past practice of
granting merit increases.
Each and every employee will be reviewed
as to productivity, attitude, lateness, absentee-
ism, and general conduct, and will be reward-
ed accordingly.
We believe this policy to be fair and will
continue at H.S.M. in the future, as it has in
the past.
The Respondent in fact granted a 12-cent cost-
of-living wage increase in February and granted
merit increases in February and in later months.
The Regional Director dismissed the decertification
petition in July.
As discussed above, the Union agreed to permit
the Respondent to grant merit wage increases pur-
suant to its haphazard past practice. Nevertheless,
the Respondent, like employers faced with initial
representation drives, is not privileged to exercise
its discretion in a manner that coerces employees
or interferes with the election. 7 Thus, the judge
properly borrowed by analogy from the well-set-
tled law that governs employer conduct during an
initial representation drive. Pursuant to that body
of law, the Respondent's obligation while the de-
certification petition remained pending is clear.
An employer is generally required to grant wage
increases while a representation petition remains
pending as if the petition had never been filed.s
'Had the Union not agreed to permit the Respondent to grant merit
wage increases unilaterally, the Respondent would, of course, have been
subject to the ordinary bargaining obligations imposed by Sec. 8(d) of the
Act. See Dresser Industries, 264 NLRB 1088 (1982).
° Great Atlantic & Pacific Tea Co., 166 NLRB 27, 29 fn. 1 (1967) (citing
cases).
Where, however, the employer's past practice is
haphazard, the employer may lack objective evi-
dence 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 employer'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 interfered with the election. s The purpose of
these precautions is to avoid placing the onus for
the employer's decision on the union.1°
Contrary to the judge, we find that the Respond-
ent failed to comply with the Board's requirements.
Thus, the Respondent's 8 February statement to
employees did not attempt to justify its decision to
suspend its wage increase practice. Rather, it
merely implied that the practice had been suspend-
ed because of a prospective decertification vote
and stated explicitly that "the Bernardini matter,"
in turn, delayed the vote. The statement thus fell
far short of satisfying the Respondent's duty to
state that it had merely deferred or postponed the
increases and that it decided to do so only to avoid
the appearance that it interfered with the vote.
While the Respondent's 8 February statement
did not explicitly justify its decision to suspend its
wage increase practice, it surely implied a reason.
The statement unmistakably implied that it ulti-
mately withheld the increases because of "the Ber-
nardini matter," the Union's claim that the Re-
spondent unlawfully denied Union Representative
Bernardini access to its plant. Thus, the Respond-
ent clearly placed the onus for its decision on the
Union.
We recognize that the Respondent in June 1984
told individual employees who asked for merit in-
creases that it "couldn't" grant increases because a
decertification petition was pending and that in-
creases "might be construed as [an] unfair labor
practice" or that the Respondent "had been ad-
vised by counsel" not to give the increases. The
9 Village Thnft Store, 272 NLRB 572, 572-573 (1984); Uarco Inc., 169
NLRB 1153, 1154 (1968); see Smith & Smith Aircraft Co., 264 NLRB 516
fn. 2 (1982), enf. denied on other grounds 735 F.2d 1215 (10th Cir. 1984).
Having stated this exception, we do not mean to imply that in all cases
where the pattern of granting wage increases has been haphazard an em-
ployer may not lawfully withhold such increases during the preelection
period without making a general announcement about its decision and the
reasons for it. See, for example, Singer Co., 199 NLRB 1195, 1196 (1972);
Great Atlantic dt Pacific Tea Co., 192 NLRB 645, 645-646(1971). We find
a violation in this case, however, because as explained below the Re-
spondent withheld the increases for a number of months and then rein-
stated them with an announcement implying that the wages had been de-
layed because of the Union's pursuit of its grievance over the Respond-
ent's refusal to allow the Union's agent into the plant.
10 See Uarco, supra, 169 NLRB at 1154.
H.S.M. MACHINE WORKS

1485
Respondent did not, however, offer this explana-
tion during the 8 February 1985 employee meeting.
Indeed, as noted, it suggested instead that the
Union's pursuit of a grievance had caused the with-
holding. Regardless whether the June 1984 state-
ments were by themselves lawful or unlawful, they
could hardly serve to legitimize this action by the
Respondent in February 1985."
We find that the Respondent violated Section
8(a)(1). 1 2
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraphs 5 and 6 and
renumber the subsequent paragraphs.
"5. The Respondent has violated Section 8(a)(1)
of the Act by coercively interrogating employees
about union support and union activities.
"6. The Respondent has violated Section 8(a)(1)
of the Act by withholding merit wage increases
from its employees after its employees filed a de-
certification petition and by placing the onus for its
decision to withhold the increases on the Union."
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We shall order that the Respondent make its em-
ployees whole for the merit wage increases it with-
held, and the Respondent shall do so in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). We shall
also order the Respondent to provide to the Union
the relevant and necessary information it requested
in February 1985.
ORDER
The National Labor Relations Board orders that
the Respondent, H.S.M. Machine Works, Inc., and
Cove Aircraft Products, Inc., Medford, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Engaging in surveillance of union representa-
tives and employees while union representatives
"In light of our conclusion, we find it unnecessary to pass on wheth-
er the Respondent's June 1984 statements to individual employees, stand-
ing alone, would have satisfied the Board's requirements.
12 The complaint alleged that the Respondent also violated Sec.
8(aX5). Neither the Union nor the General Counsel contend, however,
that the Respondent violated Sec. 8(aX5) specifically by refusing to bar-
gain with the Union before withholding wage increases. Rather, the Gen-
eral Counsel contends the Respondent violated Sec. 8(a)(5) by designing
its entire course of conduct to undermine the Union.
visit its plant pursuant to its collective-bargaining
agreement with the Union.
(b) Denying access to its plant to union repre-
sentatives for visits pursuant to its collective-bar-
gaining agreement with the Union.
(c) Coercively interrogating any employee about
union support or union activities.
(d) Withholding merit wage increases from its
employees after its employees file a decertification
petition and placing the onus for its decision to
withhold the increases on the Union.
(e) Refusing to furnish to the Union relevant and
necessary information.
(f) Unilaterally modifying its collective-bargain-
ing agreement with the Union by granting cost-of-
living wage adjustments in amounts greater than
those to which it agreed in its collective-bargaining
agreement with the Union.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make its employees whole for the merit wage
increases it unlawfully withheld in the manner set
forth in the remedy section of this decision.
(b) Provide to the Union the relevant and neces-
sary information the Union requested in February
1985.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Medford, New York plant copies
of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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, defaced,
or covered by any other material.
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT watch you when you speak with
your union representatives while they visit our
plant pursuant to our collective-bargaining agree-
ment with the Union.
WE WILL NOT deny access to our plant to the
Union's representatives for visits pursuant to our
collective-bargaining agreement with the Union.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT withhold your merit wage in-
creases after you file a decertification petition and
place the onus for our decision to withhold the in-
creases on the Union.
WE WILL NOT refuse to furnish to the Union rel-
evant and necessary information.
WE WILL NOT unilaterally modify our collective-
bargaining agreement with the Union by granting
cost-of-living wage adjustments in amounts greater
than those to which we agreed in our collective-
bargaining agreement with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make you whole for the merit wage
increase we unlawfully withheld from you begin-
ning in June 1984, with interest.
WE WILL provide to the Union the relevant and
necessary information it requested in February
1985.
H.S.M. MACHINE WORKS, INC. AND
COVE AIRCRAFT PRODUCTS, INC.
David S. Cohen, Esq., for the General Counsel.
Benjamin L. Herzweig Esq., and Vanessa M. Sheehan,
Esq. (Pelletreau & Pelletreau), of Patchogue, New
York, for the Respondent.
David Jaffe, Esq., of New York, New York, for the
Charging Party.
Clark Earley, Party in Interest.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge.
These consolidated cases were heard by me in Brooklyn
and Hauppauge, New York, on various days in October
1985. The charge in Case 29-CA-11289 was filed on 28
June 1984 and an amended charge was filed on 14 Feb-
ruary 1985. On 2 April 1985, a charge was filed in Case
29-CA-11781, which thereafter was followed by the is-
suance of a consolidated complaint on 28 June 1985. At
the hearing additional amendments were made.
The allegations, in substance, are as follows:
1.That since January 1984 the Respondent engaged in
surveillance. Basically, it is alleged that during visits to
the plant by union agents as authorized by the collective-
bargaining agreement, officials of the company followed
them as they talked to employees and either took notes
or appeared to take notes.
2. That in June 1984, Respondent by its president,
Frank Wigley, assisted and supported the circulation and
execution of a petition seeking to oust the Union.
3. That from June 1984 through February 1985 Re-
spondent promised wage increases and other benefits in
order to induce its employees to abandon their member-
ship in or support for the Union.
4. That on 21 August 1984 the Respondent by its vice
president, Ronald Gayle, initiated and assisted certain
employees in drafting a petition to reject a contract that
had just been negotiated between the Company and the
Union and had been ratified by the employees.
5. That from 21 June 1984 until 12 February 1985 the
Respondent denied Union Agent Arnold Bernardini
access to its plant notwithstanding the visitation clause in
the collective-bargaining agreement.
6.That in December 1984 and at various times thereaf-
ter, the Respondent granted extra cash Christmas bo-
nuses and also granted "merit raises" to those of its em-
ployees who signed the petitions described above in
paragraphs 2 and 4.
7. That from December 1984 the Respondent withheld
the benefits granted as described above in paragraph 6 to
those employees who did not sign the aforesaid petitions.
8. That since February 1985 the Respondent has re-
fused to furnish to the Union information relating to cer-
tain cash payments made to employees in 1984 and 1985.
9. That in February 1985 the Respondent unilaterally
granted a cost-of-living increase in an amount greater
than what was called for in the collective bargaining
agreement.
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses and
after considering the briefs filed, I make the following
FINDINGS AND CONCLUSIONS
A. Jurisdiction
It is admitted and I find that the two companieS named
in the caption of the complaint constitute a single-inte-
grated enterprise and are engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
H.S.M. MACHINE WORKS

1487
It also is admitted and I fmd that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
B. Background
The president and principal stockholder of the Compa-
ny (95 percent) is Frank B. Wigley. The Company's vice
president is William Lehman who owns 5 percent of its
stock. Lehman conducted the negotiations for a new col-
lective-bargaining agreement in the summer of 1984.
Ronald Gayle, has the title of vice president for manu-
facturing and functions as the plant manager with par-
ticular attention to the day shift. The night shift is under
the supervision of Roy Bartels who has similar functions
for the night shift as Gayle has for the day shift. Based
on the record as a whole, I conclude that each of these
gentlemen is a supervisor and agent within the meaning
of the Act.
The Union became the bargaining agent in 1971 when
it won a Board-conducted election. The first contract
was negotiated in 1971 after a 5-month strike. Since then,
the parties have negotiated successive collective-bargain-
ing agreements.
The unit of employees represented by the Union in-
cludes all "production (including working leadmen),
maintenance, shipping and receiving, draftsmen, and
driver employees, excluding office clerical, professional
and sales people, watchmen, guards and supervisors
within the meaning of the National Labor Relations
Act." In the summer of 1984 the bargaining unit work-
force consisted of about 55 people, about 35 on the day
shift and 20 on the night shift.
In 1981 two events occurred that foreshadowed the
events in the present case. First a decertification petition
was filed with the Board by one of the employees.
(During the summer of 1981?) Secondly, in August 1981
the Company barred from its premises a union represent-
ative named Arnold Bernardini on the grounds that he
allegedly "distracted an employee at work with the
result that the employee very nearly damaged a machine
part worth $1500.00." 1 When the Union's president
James Trenz protested the barring and threatened a
strike, the matter was quickly "settled" and Bemardini
was allowed to resume his visits pursuant to the con-
tract's visitation clause. As to the decertification petition,
although I am not really certain what happened, it ap-
pears that no election was held as the petition either was
dismissed or withdrawn.
C. Alleged Surveillance
The 1981 to 1984 and the subsequent 1984 to 1987 col-
lective bargaining agreements contain the following
clause:
1 From a description of the event given by the Company's witness, I
do not see what Bernardini had to do with the damaged part. It seems
that while he was talking to the machine operator, who was standing 5
feet away from the machine, the machine began to malfunction and made
a noise signaling the malfunction. All the operator could have done,
whether Bernardini was present or not, was to push the stop button,
which he in fact did.
ARTICLE I6—PLANT VISITATION AND
BULLETIN BOARDS
A. Officers or representatives of the Union shall
be admitted to the plant of the Employer during
working hours for the purpose of ascertaining
whether this Agreement is being observed by the
parties or for assisting in the adjustment of griev-
ances, provided however that they have first made
their presence known to management and provided
further that such visitation does not unreasonably
interfere with the work of the employees.
Pursuant to the visitation clause, Arnold Bernardini
was the union agent who generally visited the plant. His
practice was to call ahead of time and, at least in 1984,
to visit the plant at a time that straddled the first and
second shifts. He credibly testified that for safety reasons
he made sure that he spoke to employees when their ma-
chines were either shut off or idling. He visited the shop
about two or three times a month.
It is alleged and, in fact, substantially admitted, that
whenever Bemardini or other agents visited the plant
and talked to employees, the Company's officials, princi-
pally Ronald Gayle and William Lehman followed the
union agents around the plant as they talked to employ-
ees. Also, Gayle tended to stand within 10 and 15 feet of
the union agents when they spoke to employees and
either made or appeared to make notes in a book while
such discussions took place. This practice was carried
out continuously by management since at least 1981 and
as recently as October 1985.
Pursuant to the collective-bargaining agreement, the
Company agreed to allow union agents to visit its prem-
ises during working hours. Obviously, the purpose of this
agreement was to allow union representatives to police
and administer the contract by talking to employees on
company premises and during their working time. Al-
though nothing in the Act or the contract requires man-
agement representatives to cease their normal activities
within the plant while such union visits take place, the
evidence here shows that management went out of its
way to engage in surveillance of the conversations be-
tween the employees and union representatives. There is
no doubt in my mind that such conduct (including the
appearance of taking notes) would tend to inhibit at least
some of the employees in freely talking to their union
representatives. Although a company need not agree to a
visitation clause in a contract, it seems to me that once
such a clause has been executed, the employer may not
subvert its intent by engaging in the type of conduct
which would tend to deter its employees from freely
talking to union representatives. Therefore, based on the
evidence in this case, I find that the Company has en-
gaged in unlawful surveillance. Harvey's Resort Hotel, 236
NLRB 1670, 1681-1682 (1978). Cf. Hoschton Garment
Co., 279 NLRB 565 (1986).
D. The Filing of the Decertification Petition
In 1984 the Union's welfare fund experienced in-
creased medical costs and was therefore forced to in-
crease the deductible for medical insurance. This change
1488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
affected employees because it increased their expenses if
they needed medical services. In early June employees
Clark Early, Pat Deleo, and James Kloppenberg began
talking about getting rid of the Union. Their discussions
focused on the change in the medical plan. Also, accord-
ing to Early, they thought they could do better with
their own IRAs than with the contractually provided
pension plan.
On or about 18 June 1984, Clark Early prepared a pe-
tition which reach
The following employees of H.S.M. Machine
Works, Inc. no longer wants to be represented by
Local 463, International Union of Electrical, Radio
& Machine Works, AFL-CIO as our Bargaining
Agent:
Signatures on this petition were solicited by Early and
Kloppenberg and by 20 June, 18 employees had signed
it. On 21 June Early and Delio called in sick and drove
to the Board's Brooklyn Regional Office where they
filed the decertification petition in Case 29-RD-499.2
The General Counsel contends that Company Presi-
dent Frank Wig,ley solicited employees to sign the above
petition. In support of this contention, he offered the tes-
timony of only one employee, Carlos Zuniga, whose evi-
dence I do not credit.
Zuniga, who operated a computerized lathe, testified
that in mid-June he was given the petition to sign by
Wigley in the latter's office. Nevertheless, in a prior
statement made by the Board's agent who investigated
the case, Zuniga said that he was asked to sign this peti-
tion by Clark Early. I therefore conclude that Zuniga's
testimony is unreliable because of this prior inconsistent
statement. Also, I note that, of some 50 bargaining unit
employees, neither the General Counsel nor the Charg-
ing Party was able to fmd any other employees who
could testify that they too were asked to sign this peti-
tion by Wigley or by any other company supervisor.
Based on the above it seems to me that the General
Counsel has failed to meet his burden as to the allegation
that company supervisors solicited employees to sign the
petition to decertify the Union.3
E. The Denial of Access to Union Representative
Arnold Bernardini
On the afternoon of 19 June Bernardini made one of
his regular visits to the shop. After returning home
(some 80 miles to Staten Island), he received a phone
call from Chief Shop Steward Frank Anderson to the
2 On 19 July 1985 the Regional Director of Region 29 dismissed the
decertification petition because he issued a complaint in these cases alleg-
ing, inter alia, that the Company had assisted and supported the circula-
tion and execution of the decertification petition.
On 13 November 1985 the Board issued an Order making Early a party
in interest in the instant unfair labor practice proceeding, limited to the
receipt of "the Order or other document that fmally disposes of the pro-
ceeding."
3 An employee, Efrain Tones, who did not speak English well testified
that, either one day before 18 June or one day after, Wig,ley told him that
some employees were with the Company and some with the Union.
Torres testified that Wigley then asked him what he thought. Assuming
this to be true, I view this, at best, as an inconsequential mterrogation.
See Rossmore House, 269 NLRB 1176 (1984).
effect that people in the shop were being solicited to sign
a petition to decertify the Union. Bemardini called Shop
Steward Albert Shaw (on the night shift) who confirmed
that such a petition was being circulated by manage-
ment.4 At this point, Bernardini called back to Frank
Anderson and told him to meet him at the plant about 9
p.m.
According to Frank Anderson, while he was waiting
outside the plant he met and told Night-Shift Foreman
Roy Bartels that he was going to have a meeting with
Bernardini because a problem came up.
Bemardini and Anderson entered the plant but could
not fmd Bartels to announce their arrival. They started
asking employees whether they had seen the petition and
what they knew of it. When Bemardini began question-
ing John Deliso about the petition, Delis° reacted by
telling Bernardini to get off his back. At this point, Klop-
penberg who was in the same area left and Roy Bartels
soon arrived, whereupon he told Bernardini to stop both-
ering Deliso. Bartels approached Bemardini, who testi-
fied that Bartels used his rather considerable belly to
push Bernardini back. According to Bernardini, as he
was about to lose his balance, he raised his arm where-
upon Bartels disingeniously began accusing Bernardini of
assaulting him. Regarding this event, I note that Bartels
did not testify and that Deliso who was called as a com-
pany witness testified that, at most, Bernardini poked
Bartels with his fmger. Deliso testified that when this
happened, Bartels jumped back and said, "Oh did you
see that"?3
By letter dated 21 June 1984 (the same date the RD
petition was filed), Wigley wrote to Union President
Trenz as follows:
Please be advised that Arnold Bernardini will no
longer be admitted entry into the manufacturing
area at H.S.M.
We recognize the fact that under our Collective
Bargaining Agreement your Union has a clearly de-
fined visitation rights provision and we respect this.
However, Mr. Bernardini has repeatedly gone to far
and frankly, abused that right. Disruption of pro-
duction, harassment of bargaining unit employees,
and deliberate interference during shift changes are
among his many offenses. The last straw was on
June 19, 1984 when he physically assaulted our
night shift plant manager.
We find this behavior crude, inexcusable and it
will not be tolerated.
Therefore, we formally request you to assign a
new person to the task of plant visitation as this in-
flammatory behavior is unnecessary.
4 Shaw testified that he heard from employee Frank D' Christine that
Wigley had given the petition to James Kloppenberg. Needless to say
this evidence was not received for the truth of the assertions as it would
be heresay for such purpose.
5 Bemardini is a relatively small man who was at that time 67 years
old. He is, by all accounts, however, a rather feisty man, whose energy
belies his age. Bartels by all accounts was, at the time of this incident, a
man in his 50's who was about 6'3" tall and weighed in excess of 250
pounds.
H.S.M. MACHINE WORKS

1489
Subsequently, the Union brought this matter of Ber-
nardini's banishment to arbitration. As a result, the Re-
gional Director on 11 September 1984 deferred further
processing of the unfair labor practice case in Case 29-
CA-11289. In fact the matter was presented to arbitra-
tion but unfortunately the arbitrator died after hearing
the evidence but before issuing a decision. Thereafter, on
12 February 1985 (at a time when Bernardini had retired
from the Union), the Company wrote the following
letter to the State Board of Mediation, copies of which
went to the Union and its counsel. This read:
In view of the untimely passing of Arbitrator
Morris Leibowiz, the employer is hereby granting
I3ernardini access to the manufacturing area of the
plant effective immediately. It is our belief that this
leaves nothing further for the arbitrator to consider.
About the same time, Lehman read a statement to the
employees, which read:
1.As you are all aware, the vote you have re-
quested to determine representation via a decertifi-
cation petition, will not come about until the Ber-
nardini matter is resolved.
This matter is now in an arbitration proceeding
which has dragged on for a period of over 3
months. As of last week it appeared that it would
continue in that direction for a long period of time.
To further complicate matters, the state appoint-
ed arbitrator died last week.
The result of his untimely death is that we will
have to begin the arbitration proceedings all over
again with a new arbitrator.
In view of this situation, the management of
H.S.M., in the interest of all parties, has decided to
allow Mr. Bernardini access to the manufacturing
areas of the plant.
This action will eliminate the need to arbitrate
this issue any further.
2. As of February 11, 1985 all bargaining unit
employees will receive a .120 per hour cost of
living adjustment.
3. Over the next several weeks we will resume
our long standing past practice of granting merit in-
'creases.
Each and every employee will be reviewed as to
productivity, attitude, lateness, absenteeism, and
general conduct, and will be rewarded accordingly.
We believe this policy to be fair and will contin-
, ue at H.S.M. in the future as it has in the past.
On 22 February 1985 the Union wrote to the company
as follows:
We have received a copy of the letter from your
attorney, Ms. Sheehan, to the State Mediation
Board, dated February 12, 1985, advising that Mr.
Bemardini is to be granted access to the manufac-
turing area and further advising that it is "our belief
that this leaves nothing further for the Arbitrator to
consider."
It is our view that there is a great deal more to
be considered. By statements of H.S.M. officials and
especially your letter dated June 21, 1984, Mr. Ber-
nardini has been defamed. We consider this matter
to be unresolved until that letter is, in its entirety,
withdrawn and a notice to that effect is prominently
displayed for at least 60 days so that all employees
in the bargaining unit will understand that the Com-
pany has made a complete retraction.
This is especially important in light of the fact
that you recently made a speech to your employees
announcing that the Company was withdrawing the
ban on Mr. Bemardini so as to expedite a decertifi-
cation election, implying that the Union's request
for arbitration was a delaying tactic. That speech
did not, of course, constitute a retraction.
It is clear to us that the only reason for the Com-
pany's hoisting of the white flag by terminating the
arbitration was that, at the arbitration hearing your
witnesses gave devastating testimony under oath
that they had received cash payments at the same
time that they had received their Christmas bonuses
for 1984. Manifestly, you were fearful that further
devastating testimony would be forthcoming if the
arbitration proceeding were continued.
I await your early reply that your slanderous ac-
cusations against Mr. Bernardini, an agent of the
Union, have been withdrawn and that your employ-
ees have been so notified.
In my opinion the barring of Arnold Bernardini from
the plant after 21 June constitutes a violation of Section
8(aX1) and (5) of the Act. As noted above, the collec-
tive-bargaining agreement at article 16 gave the Union
the right to appoint officers or represenatives to have
access to the plant during working hours "for the pur-
pose of ascertaining whether this Agreement is being ob-
served by the parties. . . ." The contract also provides
that such representatives should first make their presence
known to management and that their visits do not unrea-
sonably interfere with the work of the employees.
Given the rumors that management was circulating a
petition to get rid of the Union (whether or not accu-
rate), Bemardini's visit to the plant on the evening of 19
June was for the purpose of ascertaining whether the
Company was in the process of breaching the recogni-
tion clause of the contract. Moreover, when Chief Shop
Steward Anderson told Night Foreman Bartels that he
was waiting for Bernardini to show up for a meeting, the
Union, in my opinion, adequately fullfilled its obligation
to notify management of the impending visit.
Based on this record, I cannot conclude that Bernar-
dini unreasonably interfered with the work of employees
by his inquiries on 19 June. While it is true that Bemar-
dini pressed Deliso about what the latter knew about a
petition, Deliso in my opinion overreacted to Bernar-
dini's questions. (I note that Delis° was not operating a
machine and therefore no safety or damage possibility
was present). Also I do not believe that Bernardini as-
saulted Bartels as alleged in the Company's 21 June
letter. In this respect, I credit Bernardini's assertion that
1490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bartels pushed him off balance and disingeniously
claimed assault when Bernardini merely touched him.
In light of the above, it is concluded that the Compa-
ny unilaterally altered the terms of the collective-bar-
gaining agreement by refusing access to the Union's ap-
pointed representative. Accordingly, I fmd, in this re-
spect, that the Company's actions were violative of Sec-
tion 8(a)(1) and (5) of the Act. Houston Coca-Cola Bot-
tling Co., 265 NLRB 766, 777 (1982); Tom's Ford, Inc.,
253 NLRB 888, 893 (1980); Harvey's Resort Hotel, 236
NLRB 1670, 1677-1681 (1978).6
F. The Contract Negotiations and the Ratification
Vote
Negotiations for a new contract began in July 1984.
During July and August the parties had four or five
meetings. On 20 August the Company presented its final
contract proposal and on 21 August the Union's repre-
sentatives told the Company that they would not recom-
mend acceptance of the Company's final offer. Lehman,
the Company's spokesman, responded that the Union
should take the offer to the employees and predicted that
they would accept it.
When the Company would not budge on its final offer,
that proposal was taken to the membership for discussion
and vote. According to Trenz, during the discussion it
appeared to him that the people who were most in favor
of rejecting the contract were also the people most inter-
ested in decertifying the Union. He therefore decided to
have a secret-ballot election in which the employees
would choose either to accept the Company's offer or go
on strike. When the votes were counted, the result was a
24 to 24 tie. The Union construed this as constituting ac-
ceptance of the final offer and notified the Company.
According to Trenz when he told Lehman that he Com-
pany's offer was accepted, "He looked at me like I hit
him in the face with a wet fish." At this point a secretary
was assigned to Trenz so that he could have the agree-
ment typed up.
According to Clark Early, after the vote was taken, he
thought that this would adversely affect his efforts to de-
certify the Union and so he called his attorney. 7 Early
asserts that his attorney suggested that he solicit employ-
ees to sign a petition to the effect that they did not
accept the contract. Early and Pat Delio testified that
they wrote up such a petition, obtained 28 signatures and
gave it to management.
Virtually all of the General Counsel's witnesses except
Peter Weeks agreed that signatures for this second peti-
tion were solicited by Clark Early or other employees
who were involved in the decertification effort. Weeks
testified that on 21 August he arrived at the plant after
the ratification vote was held, walked into the final in-
spection area where he saw Supervisor Ron Gayle talk-
6 Although this issue would properly be deferrable to arbitration, the
fact is that due to the untimely death of the arbitrator, the issue was not
decided in accordance with the grievance or arbitration procedures of
the contract. Nor was it resubmitted to another arbitrator for decision.
Under such circumstances, I do not think this matter should be deferred
any further.
7 Assuming that the petition was validly filed, the execution of a new
contract would not deter an election on the petition.
lug with employees Clark Early, Pat Delio, and Tom
Morton. According to Weeks, Gayle expressed surprise
that the contract offer was accepted and said it was a
good time to get this petition written up and signed.
Weeks asserts that the group began discussing how to
word the petition and that after it was signed by Early,
Delio, and Morton, Ron Gayle looked over at Weeks
and said, "We have a fourth signature." At this point, ac-
cording to Weeks, he began to back out of the room and
Clark Early said it was not necessary for him to sign it.
The entire transaction as described by Weeks is denied
by Clark Early, Pat Delio, and Ron Gayle (Tom Morton
did not testify). In this respect, it seems rather improb-
able that Gayle, Early, Delio, and Morton would have
so openly discussed such a petition in the presence of an
employee who just happened to be passing by. More-
over, as the Company's contract offer was so favorable
to the Company, it seems somewhat unlikely that man-
agement would, at the same time, scheme to have its
final offer rejected.8
On 21 August, when the draft agreement was fmally
typed up and presented by Trenz to Lehman for execu-
tion, Lehman said that there was a problem and that his
attorney had advised him not to sign anything. Accord-
ing to Trenz, when the contract was still not signed by
the Company after a couple of weeks, he called Lehman
who said that everything had been turned over to the
Company's attorney. As a result, the Union, on 4 Sep-
tember 1984, filed another unfair labor practice charge in
Case 29-CA-11404 alleging the Company's unlawful re-
fusal to execute the contract. Subsequently, the Compa-
ny agreed to execute the stipulation of agreement that
had been prepared on 21 August and this resulted in the
withdrawal of the charge in Case 29-CA-11404.
G. Merit Increases, Christmas Bonuses, and COLAs
For many years the Company had a practice of giving
cash Christmas bonuses to its employees. In 1981, how-
ever, a system for giving such bonuses was formalized in
the labor agreement. These contractually based bonuses
were given by check. Nevertheless, it appears that de-
spite the contractually agreed on Christmas bonuses,
Wigley continued to give some, but not all, employees
additional cash Christmas bonuses.
In addition to Christmas bonuses, the Company had a
practice of granting merit increases to employees on
what appears to have been an ad hoc basis. That is, merit
increases were not given at any set time and generally
were rather sparingly given. The practice of granting
merit increases was not referred to in the collective-bar-
gaining agreement, the Union being content to have the
Company follow its past practice without it being for-
malized by contract. In 1981 seven bargaining unit em-
ployees received merit increases. In 1982, six bargaining
unit employees received merit increases. In 1983, nine
employees received merit increases and in 1984 four em-
ployees received merit increases. In each year the
median increase was $.25 per hour.
I also note that Weeks as a witness seemed to be very nervous and
uncertain about his testimony.
H.S.M. MACHINE WORKS

1491
After the decertification petition was filed, the Compa-
ny admittedly ceased its practice of giving merit in-
creases. (As discussed below, the practice was resumed
in February 1985.) Although no general announcement
was made of its decision to cease giving merit increases,
employees were told, if they asked for raises, that merit
increases were not being given while the petition was
pending because it would give the appearance that the
Company was buying votes.
When a representation petition is filed with the Board,
employers often find themselves in a precarious legal po-
sition regarding both the granting or withholding of
wage increases. Thus, when such a petition is filed, an
employer may be charged with violating the law if it
grants wage increases or other benefits during the pend-
ency of the representation petition unless it can establish
that such increases or benefits either had been planned
prior to the Union's advent on the scene or were part of
an established past practice. NLRB v. Exchange Parts
Co., 375 U.S. 405 (1964); Baltimore Catering Co., 148
NLRB 970 (1964). Similarly, an employer may likewise
be charged with violating the law if it withholds wage
increases or other benefits during the pendency of an
election if such increases or benefits have already been
planned or are part of an established past practice.
NLRB v. Dan Howard MA. Co., 390 F.2d 304 (7th Cir.
1968);° Liberty Telephone & Communications, 204 NLRB
317, 318(1973).
Clearly the key to threading the needle when faced
with a need to decide whether to grant or withhold ben-
efits in the face of a pending election is to act as if the
representation petition did not exist and to take action in
the present, consistent with the Company's actions in the
past. As pointed out by the court in NLRB v. Dothan
Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970):
At first glance it might appear that the employer
is caught between the proverbial "devil and the
deep blue sea." It is an unfair labor practice to grant
a wage increase during the campaign and bargain-
ing periods, but at the same time it may be an unfair
labor practoce to refuse to grant an increase during
this same period. . . We find little merit in such
arguments. The cases make it crystal clear that the
vice involved in both the unlawful increase situation
and the unlawful refusal to increase situation is that
the employer has changed the existing conditions of
employment. It is this change which is prohibited
and which forms the basis of the nnfair labor prac-
tice charge.' °
In the present case it is conceded that the Company
had a past practice of granting merit increases, which it
admittedly suspended on the filing of the decertification
petition. The record shows, however, that the granting
a In Dan Howard the court found that the employer violated the Act
by withholding a customary wage increase. The court rejected the com-
pany% argument that it had withheld the increase on the advice of coun-
sel who advised that the granting of the increase would be an unfair
labor practice
10 See also GAF Corp., 196 NLRB 38, 544 (1972), and cases cited
therein.
of such merit increases in the past had been on an ad hoc
basis with no uniformity as to timing. In these circum-
stances, the Company was advised to halt merit increases
pending the outcome of an election and when employees
asked for raises, they were told that they could not be
given merit increases at that time because it might look
like the company was buying votes. In Village Thrift
Stores, 272 NLRB 572 (1984), the Board held in similar
circumstances that an employer did not violate the Act
when it told employees that wages would be frozen
pending resolution of the union matter and that to pro-
vide increases at that time would look like bribery. The
Board stated:
Where, as here, the benefits at issue have been pro-
vided only in a "haphazard fashion," the employer
is faced with a Hobson's choice of granting the ben-
efit with no objective evidence available to explain
the timing, thereby risking allegations of unlawful
interference with employees' Section 7 rights or, as
the Respondent chose here, withholding the benefits
and still being subject to charges of unlawful con-
duct. The Board has resolved this dilemma by per-
mitting employers to tell their employees that those
benefits previously provided in an indefinite manner
will be deferred during the pendency of organiza-
tional efforts where they make clear that the pur-
pose in doing so is to avoid the appearance of inter-
ference.
The Respondent's November statement meets
these requirements. Given the Respondent's indefi-
nite manner of granting wage increases, General
Manager Tully's assertion, in response to an em-
ployee's question, that the increases would not then
be provided because it would look like "bribery"
was a legitimate expression of the Respondent's
concern that it not give the appearance of unlawful
interference in the employee's exercise of their Sec-
tion 7 rights. We therefore fmd that the Respondent
did not violate Section 8(aX1) by announcing the
withholding of its erratic individual wage in-
creases."
Inasmuch as the practice of granting merit increases
was decidedly haphazard as to who received them and
when, and as employees were told, when they asked for
raises, that they were frozen in order to prevent the ap-
pearance of "bribery," I conclude that the Company did
not violate the Act in this regard and I shall recommend
that this allegation of the complaint be dismissed.
The complaint alleges that, in December 1984, the
Company by Wigley gave certain employees extra cash
Christmas bonuses in addition to contractually agreed on
Christmas bonuses given to all bargaining unit employ-
ees. It is argued that these additional cash bonuses were
given to those employees who signed both or either of
the petitions to oust the Union or to reject the new labor
contract. As noted above, the record shows that in prior
years the Company has given certain of its employees
11 See also Gossan Co. v. NLRB, 719 F.2d 13513 (7th dr. 1983), dealing
specifically with merit increases.
1492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
added cash Christmas bonuses so that at least in this re-
spect the practice is not something new. The question
really comes down to whether the granting of such cash
bonuses to some employees and the denial to others was
motivated by discriminatory considerations.
At Christmas 1984, all bargaining unit employees
(about 57) were given their contractually mandated bo-
nuses. Additionally, 19 employees got additional cash bo-
nuses from Wigley as follows:
Name Amount
Signed
Petition
Decertify?
Signed
Petition to
Reject
Union
Contract?
Eric Aiken 100 No Yes
John Arocho 200 Yes Yes
James Bailery 200 No Yes
Mike Barnes 100 No Yes
Matt Caccace 100 Yes Yes
Joseph Cintorino 300 No No
Tony DiAmaleo 100 Yes Yes
Dave DeSalvo 100 No Yes
John DeLiso 100 Yes Yes
Clark Early 300 Yes Yes
Farid Zeiden 200 No Yes
James Kloppenberg .. 200 Yes Yes
Ralph Marrera 100 Yes No
Tom Morton 200 Yes Yes
James Nicolosi 100 No Yes
Dominick Roberti 200 No Yes
Peter Starldn 200 Yes Yes
Peter Weeks 200 No No
Carlos Zunega 200 Yes Yes
In relation to the above, James Leone, David Johnson,
and Efrain Torres who signed both petitions did not re-
ceive additional cash Christmas bonuses. John Andruci
who signed the petition to decertify, but not the petition
to reject the contract did not receive an added Christmas
bonus. Finally, Frank DiGristina, Wilfred Piniero, Alan
Keizel, and W. Colbert who signed the petition to reject
the contract but not the petition to decertify did not re-
ceive cash Christmas bonuses.
In February 1985 the Union made a written request
for information as follows:
It has come to our attention that HSM and Cove
have made cash payments to employees in the bar-
gaining unit during 1984 and 1985. Please advise
promptly
(a) the amount paid to each such employee and
the date of each payment;
(b)the reasons or basis for each such payment;
(c) why the payments were made in cash rather
than by checks; and
(d) the reason that such paymments were not in-
cluded in the W-2 forms and other forms filed with
government agencies for the year 1984.
By letter dated 13 February, the Company responded:
We acknowledge your letter dated February 5,
1985.
Please be advised that neither H.S.M. Machine
Works or Cove Aircraft made cash payments to
employees during 1984 and 1985.
With respect to merit raises, the Company by Lehman
announced in February 1985 that it was going to
"resume our longstanding past practice of granting merit
increases." As in the case of the Christmas bonuses, the
General Counsel's contention is that the Company discri-
minatorily granted such merit increases to those who
signed the two petitions while denying similar wage in-
creases to those employees who continued to support the
Union by refusing to sign the petitions. In February 1985
merit increases were granted to 15 employees as follows:
Name Date ofIncrease Amount
Signed
Petition to
Decertity?
Signed
Petition to
reject
Contract?
Eric Aiken 2/17/85 $.27 No Yes
Michael Barnes 2/24/85 .24 No Yes
L. Breitfield 2/24/85 .25 No No
G. Burger 2/24/85 .33 No No
W. Colbert 2/24/85 .27 No Yes
Tony D'Amalio 2/17/85 .38 Yes Yes
David DeSalvo 2/24/85 .25 No Yes
David Johnson 2/17/85 .18 Yes Yes
James Kloppenberg 2/24/85 .45 Yes Yes
Justin Llanes 2/24/85 .27 Yes Yes
Ralph Marrero 2/17/85 .31 Yes No
James Nicolosi 2/17/85 .52 No Yes
S. Whitehead 2/17/85 .18 No No
R. Wood 2/17/85 .27 No No
S. Zielinski 2/24/85 .23 No No
Subsequent to February 1985, additional merit raises
were given as follows:
H.S.M. MACHINE WORKS

1493
Name Date ofIncrease Amount
Signed
Peton to
Decertity?
Signed
Petition to
„ rejectContract?
Eric Aiken 7/22/85 $ .25 No Yes
John Arocho 5/13/85 .23 Yes Yes
James Bailey 4/22/85 .35 No Yes
Michael Barnes 6/3/85 .25 No Yes
Joseph Cintorino 4/28/85 .85 No No
Pat Dello 4/22/85 .50 Yes Yes
David DeSalvo 5/27/85 .50 No Yes
Frank DiGristina 7/8/85 .60 No No
Clark Early 2/29/85 .50 Yes Yes
David Johnson 5/24/85 .25 Yes Yes
Allan Kiezel 3/11/85 .50 No Yes
Zdeneck Liska 4/29/85 .42 No No
Thomas Morton 3125/85 .79 Yes Yes
Henry Mottl 3/25/85 .84 No No
Kenneth Paladino 6/3/85 .53 No No
Dominick Roberti 3/11/85 .50 No Yes
George Schmidt 4/22/85 .25 No isNo
Peter Weeks” 6/17/85 .56 No No
Steven Whitehead 5/20/85 .25 No No
Farid Zeiden 3/11/85 .25 No Yes
8/11/85 .25
John Zenker 3/25/85 .84 Yes No
All in all, the total number of bargaining unit employ-
ees who received merit increases from February 1985
through August 1985 was 32 out of about 50 plus em-
ployees. I also note that although many of the employees
who signed either one or both of the petitions received
merit increases, there were people who signed the peti-
tions who did not receive any merit raises. These includ-
ed Peter Starken, Carlos Zuniga, 14 James Leone, and
Mathew Caccace.15
The General Counsel's theory in support of his con-
tention, that there was a discriminatory selection of em-
ployees to receive added Christmas bonuses and/or merit
increases in 1985, boils down to an assertion that there is
a high statistical correlation between the receipt or
denial of such moneys and the signing of one or both of
the petitions.16
Statistical evidence like any other circumstantial evi-
dence may be used to base an inference of unlawful mo-
tivation in cases involving Section 8(a)(3) of the Act.
NLRB v. Cameo, Inc., 340 F.2d 803, 811 (5th Cir. 1965);
Self Cycle & Marine Distributor Co., 237 NLRB 75, 83 fn.
14 (1978).
12 George Schmidt originally signed the petition to reject the contract,
but then crossed his name off.
15 Peter Weeks became a union shop steward in April 1985.
G.C. Exh. 45, a summary of payroll records shows that Zuniga left
the company during the week ending 25 August 1985.
15 There seems to be some ambiguity in the record as to when Vincent
KlOppeaberg left the Company's employ. The record does show, howev-
er, that certain employees who signed one or the other of the petitions
left the Company before or soon after the merit raises were reinstated.
Thus, Wilfred Piniero left during January 1985, and Anthony Mattaci left
during the week ending 3 March 1985.
15 The General Counsel additionally argues that because the Company
admittedly used "attitude and cooperation" as a criteria for granting
merit increases and cash bonuses, this should translate to mean "antiunion
attitude." I do not agree.
Having reviewed the evidence in this case, I am not
persuaded that the "statistical" evidence is compelling
enough to warrant the fmding of discriminatory intent in
granting or denying merit increases or cash Christmas
bonuses. It is true that many of those employees who re-
ceived merit increases and bonuses signed one or more of
the petitions. Nevertheless it is also true that people who
signed those petitions did not receive merit increases or
cash bonuses and that people who did not sign the peti-
tions did receive such moneys. Further, I tend to view
the petition to decertify the Union as being more signifi-
cant than the petition to reject the contract. Thus I can
more readily see why an employer would want to
reward those employees who expressed a desire to get
rid of a union as opposed to those who simply wanted to
reject the new contract. This is particularly true in this
case as the evidence shows that the new collective-bar-
gaining agreement was more favorable in its terms to the
Company than the previous contract and therefore its re-
jection might reasonably be viewed as contrary to the
Company's interest. Yet when one compares the people
who signed the petition to decertify the Union with
those who received the extra benefits, the degree of 'cor-
relation drops off sharply. In short, it is my opinion that
the statistical evidence and the record as a whole is too
ambiguous to support the General Counsel's contention
that the granting and denials of the cash Christmas bo-
nuses and the merit raises were discriminatorily motivat-
ed.
By the same token I do not view the two cash pay-
ments to employee Carlos Zuniga in January and Febru-
ary 1985 as being violative of the Act. The evidence
shows that Zuniga at that time was the only experienced
operator of a computerized lathe, which was a highly
skilled job needed by the Company. The evidence shows
1494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Zuniga had made it known to supervision that he
could get another job at higher pay unless he got a pay
increase. Thus, when the Company gave him the cash
payments, in lieu of a merit raise (when merit raises were
frozen), I do not construe that as being motivated by
union considerations, but rather by a need to retain the
services of a necessary employee. In short, Zuniga had
the Company over a barrel, and Wigley decided to pay
Zuniga what he wanted.
As noted above, the Union on 5 February 1985 re-
quested information as to cash payments made to bar-
gaining unit employees in 1984 and 1985. The Company
responded by letter and asserted that "neither H.S.M.
Machine Works or Cove Aircraft made cash payments to
employees during 1984 and 1985."
As I understand the Company's position, the Union
was not entitled to this information because the cash pay-
ments (Christmas bonuses) were personal gifts by Wigley
and not payments made by his companies. Also, they
assert that the information was not disclosable because
there were no formal records kept of such payments and
the gifts were not covered by the collective-bargaining
agreement.
To my mind, the contention that the cash Christmas
bonuses were not made by the Respondents is patently
absurd. As Wigley owns 95 percent of the Respondents,
and as these "gifts" were given by him to his employees
for services rendered as employees, the payments (in
amounts from $100 to $300) clearly were employment re-
lated and can only be construed as part of wages. NLRB
v. Rubatex Corp., 601 F.2d 147, 150 (4th Cir. 1979). As
an element of wages, information regarding such bonuses
are therefore presumptively relevant and must be dis-
closed. Custom Masonry of Topeka, 269 NLRB 532
(1984).
Whether or not records were maintained of these pay-
ments is in my view irrelevant in the circumstances of
this case. The factual information requested was not so
complex that it could not have been furnished from
memory. Moreover, if the Company is going to continue
in the future to give cash to its employees at Christmas
time (or any other time), it would not be a bad idea, for
any number of legal reasons, to have an account of such
payments.
Finally, I reject the Company's argument that the in-
formation was not required because the cash payments
were outside the scope of the collective-bargaining
agreement. In this regard, I note that under the contract
when a benefit exists by virtue of past practice, the com-
pany is obligated to continue the benefit unless expressly
waived by the contract. Secondly, pursuant to article 18
of the contract, the parties agreed that there "shall be no
discrimination against any employee . . . with respect to
any. . . terms or conditions of employment, because of
such employees' Union membership or activity, age, sex,
race, creed, color or religious affiliation. To my mind the
Union was therefore entitled to the factual information
regarding the cash payments, at the very least, to deter-
mine if Article 18 was being complied with." NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Ruba-
tex Corp., supra.
The next issue relates to the cost-of-living adjustment
that was given to employees in February 1985. As previ-
ously noted, the Company gave a 12-cent-per-hour cost-
of-living increase to its employees which was more than
called for in the recently negotiated collective-bargaining
agreement. No notice of this unilateral change was given
to the Union and the Union's consent was neither sought
nor obtained. Pursuant to Section 8(d) of the Act a col-
lective-bargaining agreement may not be altered or
modified by one party without the consent of the
other." Moreover, it is immaterial under the Act wheth-
er the party making the change has offered to bargain, or
has in fact bargained about the modification, as it is only
the other party's consent that will make the action legal.
C & S Industries, 158 NLRB 454 (1966). Accordingly, I
conclude that the Company, by altering the existing con-
tract without the consent of the Union, violated Section
8(a)(1) and (5) of the Act."
H. Interrogation of Peter Weeks
About April 1985 Peter Weeks became a shop stew-
ard. About 2 weeks later Ronald Gayle called Weeks
into his office where he asked Weeks why he had
become a shop steward and whether Weeks felt he could
handle the responsibility in view of his extensive duties
as the person who maintained the Company's machines.
According to Weeks, Gayle "asked me more or less that
I should resign my position as shop steward," an asser-
tion denied by Gayle. Weeks also testified that Gayle
asked him what the Union's plans were with respect to
the decertification petition and the merit increases that
had recently been given by the Company. (I presume, in
context, that Gayle was asking Weeks, as a union repre-
sentative, if he knew what legal plans the Union had
with respect to those items.)
There is no dispute that Gayle asked Weeks about his
election to shop steward and whether Weeks felt up to
the responsibility. However, in light of Weeks' weak tes-
timony I do not believe that Gayle asked him to resign,
although that may have been the implied and unspoken
message Weeks was getting during the conversation.
Nevertheless, I do not think that the evidence is suffi-
cient to show that the Respondent violated the Act in
such manner. Also, as Weeks had just become a union
official, I see nothing wrong in a company representative
17 In defining the obligation to bargain in good faith, Sec. 8(d) states,
in pertinent part:
[The duties so imposed shall not be construed as requiring either
party to discuss or agree to any modification of the terms and condi-
tions contained in a contract for a fixed period, if such modification
is to become effective before such terms and conditions can be re-
opened under the provisions of the contrast.
18 The Company argues that the Union waived its rights concerning
the change when it subsequently requested the Company to apply the
night differential provision of the contract to the COLA as it affected the
night-shift employees. I disagree. The Company's unilateral increase in
the contractual benefits was put into effect without union consultation or
knowledge. As it was an increase in benefits, presented as a fait accompli,
I do not believe that the Act requires the Union to demand a retraction
of the benefits that were given as a result of bypassing the Union. Such
an action is, in my view, inherently destructive of the Union's position as
the bargaining representative.
II.S.M. MACHINE WORKS 1495
making inquiry of him as to the Union's position regard-
ing various pending legal matters.
CONCLUSIONS OF LAW
1. H.S.M. Machine Works, Inc. and Cove Aircraft
Products, Inc. are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 463, International Union of Electronic, Elec-
trical, Technical, Salaried and Machine Employees,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondents have violated Section 8(a)(1) of the
Act by engaging in surveillance of visits made to its
plant, pursuant to the collective-bargaining agreement,
by representatives of the Union.
4. Respondents have violated Section 8(a)(1) and (5) of
the Act by refusing access to representatives selected by
the Union to make visits to Respondents' plant in ac-
cordance with the terms of the collective-bargaining
agreement.
5. Respondents have violated Section 8(aX1) and (5) of
the Act by refusing to furnish to the Union information
regarding cash payments made to its employees.
6. Respondents have violated Section 8(a)(1) and (5) of
the Act by modifying the collective bargaining agree-
ment's COLA provision without the consent of the
Union.
7. The aforesaid unfair labor practice affect commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
8. The Respondents have not violated the Act in any
other manner as alleged in the complaint
[Recommended Order omitted from publication.]