Ball Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1974

211 N.L.R.B. 787 (N.L.R.B. 1974)

JEFFCO MFG. CO.
Jeffco Manufacturing Co., a Division of Ball Corpora-
tion and Teamsters, Chauffeurs, Warehousemen,
Helpers, Miscellaneous, Brewery and Soft Drink
Workers, Local 822, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
5-CA-6359
June 20, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 25, 1974, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and supporting brief, and the General Counsel filed
cross-exceptions and a memorandum in support.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as amended herein.'
The Administrative Law Judge, in his recommend-
ed Remedy, did not find it necessary to require
Respondent to post notice in connection with the
unfair labor practices. In this regard the Administra-
tive Law Judge noted that Respondent was in "good
faith" in its withholding the merit increases, that the
Union won the election, that bargaining was in
process at the time of the hearing, and that many of
the employees will receive backpay, and thus be
appraised in a meaningful matter that the Company
made a mistake. We disagree.
Here, we have found that Respondent has violated
the employees Section 7 rights in a manner which
seriously affected their wages. Moreover, because of
the litigation involved, a lengthy period of time may
elapse before these unfair labor practices will be
remedied. In these circumstances, we perceive no
reason for departing from our customary practice of
requiring the posting of notice regarding the unlaw-
ful withholding of merit pay increases.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
1 Respondent's request for oral argument is hereby denied as the record,
exceptions, and brief adequately present the issues and the positions of the
parties.
787
,ed Order of the Administrative Law Judge, as
amended, and hereby orders that Respondent, Jeffco
Manufacturing Co., a Division of Ball Corporation,
Williamsburg, Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as amended below:
1. Reletter paragraph 2(c) of the Administrative
Law Judge's recommended Order to 2(d) and insert
the following as paragraph 2(c):
"c. Post at its plant in Williamsburg, Virginia,
copies of the notice marked `Appendix."O Copies of
said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
"10 In the event the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading 'Posted
by Order of the National Labor Relations Board ' shall read 'Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT withhold benefits from you because
a union has filed a representation petition seeking an
election.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exercise
of your rights protected by Section 7 of the Act.
WE WILL make whole all employees for any losses
suffered by virtue of the withholding of the merit
increases during the pendency of the Union's
petition.
211 NLRB No. 117
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JEFFCO MANUFACTURING
CO., A DIVISION OF
BALL CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Federal Building, Room 1019,
Charles Center, Baltimore , Maryland 21201, Tele-
phone 301 -962-2822.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES , Administrative Law Judge : This case
was heard at Newport News , Virginia, on January 10,
1974, based on charges filed October 9, 1973, and a
complaint issued November 23, 1973 , alleging that Res-
pondent violated Section 8(a)(1) of the Act. Respondent
has filed a brief.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent is an Indiana corporation engaged in the
manufacture and sale of cans at its plant in Williamsburg,
Virginia . It annually sells and ships products valued in
excess of $50,000 to points located outside the Common-
wealth of Virginia . I find , as Respondent admits, that it is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Charging Party is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Issues
The basic issue in this case is whether a company, after a
union has filed a representation petition , can lawfully
withhold discretionary merit increases that would have
been granted if the petition had not been filed.' The
complaint also alleges that Respondent violated Section
I The complaint specifies a company bulletin and various statements by
management personnel to the employees of the withholding of the merit
increases , rather than the withholding itself , as violative of Section 8(a)(i),
but it is clear from the way the case was tried and the arguments of counsel
that the issue is more the legality of the withholding than the statements
concerning the withholding Indeed , Respondent's bnef states the issue in
this respect as follows: "Whether the discontinuance by the Respondent of
8(a)(1) by soliciting complaints and grievances by means of
questionnanes and individual interviews, between the filing
of the Union 's petition and the election . Finally, the
complaint alleges that Respondent unlawfully interrogated
employees about their union activities and sympathies.
B. Facts and Discussion
Although precisely what was told individual employees
by some supervisors is in mild dispute , there is no dispute
about the basic facts concerning the merit increase
program and the way it was handled following the filing of
the Union 's petition . The Company's plant in Williams-
burg started actual operations in September 1972. In
December of that year , the merit review plan was
instituted . It provided that each employee , following his
90-day probationary period , was to receive a merit review
each 90 days , with the amount of any increase ranging
from nothing at all to 20 cents per hour . Guidelines for the
various classifications , with rating scales for some dozen or
more factors , such as "quality of work ," "efficiency,"
"following of safety procedures and rules," "reliability,"
and the like, were used by the supervisors to determine if a
merit increase was to be given and its amount. A few weeks
before the Union filed its petition, it had written to the
Company , requesting recognition , stating that it was filing
a petition with the Board, and adding "It is suggested that
pending the outcome of these proceedings that you make
no changes in personnel , wages or working conditions." 2
Shortly after the petition was filed , Plant Manager Mann
mailed to each employee a letter stating , in part , "Once a
union files an election petition, the company cannot make
any promises , pay raises or give you any new benefits that
might influence your vote ." On August 18, Respondent
posted a notice on all bulletin boards at the plant stating:
Upon advice of our attorney , no merit increases are to
be granted until the outcome of the secret ballot
election , the date of which has not been established by
the National Labor Relations Board.
This decision is based on the National Labor Relations
Act which defines merit increases as discretionary. The
Company cannot make any discretionary changes in
wages or benefits during this period.
This decision does not affect promotion or promotion
increases or the automatic progression increases during
the probationery period (30, 60, 90 days after employ-
ment).
Thereafter, a number of supervisors told different
employees, usually in connection with conducting the
merit review, and in response to employees' questions, that
they could not receive any increase, referring to the
bulletin, and stating, for example, that "the merit increases
were being discontinued due to the discretionary nature of
granting discretionary merit increases subsequent to the filing of the
Union's Election Petition on July 18, 1973, constituted a violation of Section
8(a)(1) .
2 Although this letter was not in evidence , a copy is attached to
Respondent' s bnef, there is little doubt but that the letter was sent and
received , and Respondent does use the letter as a basis, in part , for arguing
its position . For purposes of discussion, I will assume the fact of the matter
JEFFCO MFG. CO. 789
the increases" (Supervisor Wallen to employee Palmer), or
"Because of the involvement with the union and the Labor
Relations Board that no merit increases could be given that
you could only be review for it but that they could not give
any raises" (Supervisor Cummings to employee Crum).
Employee Kerley testified that he was told by several
company officials or supervisors, Martin Kitt, Clell Lyons,
and Ramon DePalm, that if the union was voted out he
would get the raise retroactively, but if the union won, he
would probably not receive the increase or retroactive pay.
Personnel Manager Martin Kitt, one of the company
officials , denied Kerley's version , testifying that all he ever
told anyone was that the merit system was discontinued
until after the Union election. Clell Lyons and Ramon
DePalm also denied having responded to Kerley as the
latter testified; stating that they said approximately what
Kitt said-as DePalm put it, that the "merit reviews were
being held in abeyance."
There is no really significant difference between Kerley
and DePalm in this respect, for by saying the increases
would be held "in abeyance," it is apparent that the
"abeyance" would be removed if the Union lost the
election . I am inclined to believe that Kitt, as personnel
manager, would have chosen his words more carefully. But
the net of the Company's whole position being that its
lawful tack was to continue the reviews but withhold any
discretionary fruits thereof while the petition was pending,
the explanatory statements of the supervisors do not really
affect the basic issue . Stated otherwise, if the withholding
was unlawful, so were the statements to the employees
about the withholding and the reasons therefor. I return to
consideration of this basic issue after discussing the other
allegations in the case.
As to the alleged interrogation about union sympathies
and activities, one employee, Richard Crum, testified that
one supervisor, Cummings, asked him how he felt about
the Union and why he felt the employees needed a union,
with another employee, Dwain Moore,3 present. Although
Cummings, no longer with Respondent, did not testify
because he was prevented by weather conditions from
leaving Boston , it was in effect stipulated that his
testimony would be the same as Moore's. Moore testified
that Crum brought up the subject of the Union, stating that
he felt the Company needed a union, and Cummings
responded by asking him why he thought that. In this plant
of some 225 employees, with an election campaign during
which the Company "was very fair" (testimony of
employee Mitchell), made no promises or threats of any
kind, I cannot believe that Cummings would have strayed
from the prescribed path in a single instance , and therefore
credit Moore's testimony that Crum initiated the conversa-
tion by stating he thought the Company needed a union.
The mild response by Cummings, even though "interro-
3 The complaint originally alleged Moore to be a supervisor, but the
General Counsel amended the complaint at the hearing to withdraw that
allegation . It appears that Moore is in the bargaining unit , and was assisting
Cummings , at the time of the meeting with Crum , in getting certain forms
filled out by employees.
4 As noted above , Cummings did not testify because he was snow-bound
on the day of the hearing. I have assumed that the facts were as testified to
by Moore , who was Respondent's witness . Had I been of the view that the
violation was made out by that testimony , I would have reopened the record
gating" in form, scarcely reaches the status of "coercive
interrogation" so as to violate the Act. I shall accordingly
dismiss this allegation of the complaint .4
At some time during the pendency of the Union's
petition, late in August, Respondent put out a new form,
entitled "Speak Up," to enable employees to submit their
complaints, comments, and questions to management. At
least one supervisor, Cummings, called employees into his
office to have them fill out the form if they wished to.5 As
noted before, this was a relatively new plant. Management
was obviously, as its "Employees Handbook" in evidence
demonstrates, endeavouring to use the most modern and
enlightened personnel policies. It has an "open door,"
policy, as does the entire Jeffco operation, not only in
Williamsburg, under which "any employee who has any
particular problem or complaint which he has been unable
to get resolved . . . can go to his boss's immediate superior
all the way up to the plant manager ... or the assistant
plant manager, or to the personnel department." The
"Employees Handbook" itself states "Differences of
opinion may develop from misunderstandings regarding
promotions, salaries or interpretation of Company policies
and practices. Whatever the problem might be, we are
anxious that the person concerned be given a fair and
thorough opportunity to discuss it openly. If problems
occur, bring them to the attention of your Supervisor or the
Personnel Manager immediately." The "Speak Up" form,
as well as another form entitled "To Know My Employees
Better," instituted at about the same time, were both in
furtherance of, and implemented, the policies of the
Company as set forth in the employees handbook and
exemplified by the open door policy. It is true that these
forms were put into effect after the Union's petition was
filed, and hence constituted a stepped-up procedure, a
change which, reviewed simplistically, might be said to be
unlawful, to be a method for soliciting and resolving
complaints and grievances that would have the effect of
keeping its employees from selecting the union, even if not
so intended .6
But, in the light of the otherwise clean campaign
adverted to earlier, the fact that the Union won the
election, the parties' stipulation that the Company and the
Union were bargaining pursuant to the Union's certifica-
tion, and the fact that Respondent has always had a
program, even though less specific, for the airing of
employee complaints, even if the "Speak Up" program
might be said to have in a very technical sense violated
Section 8(a)(1), and I do not think it did, no useful purpose
would be served by so finding. I shall accordingly dismiss
this allegation of the complaint as well.
The key issue in this case is also "technical" in
nature-in that I am satisfied that the Company was in
good faith in not bestowing such merit increases as would
to take Cummings' testimony, as was in effect agreed to at the hearing.
5 Based on the testimony of Crum and Moore, who was questioning
employees while Cummings was on vacation . Cummings had been on
vacation when the program began, and called the employees on the night
shift in separately because there was no other way for him to get access to
them.
6 I credit assistant Plant Manager David Wiley's testimony that the filing
of the petition had nothing to do with the institution of the "Speak Up"
program.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normally have been given during the period in a belief that
the giving of them was "discretionary," and would have
been unlawful . I am constrained in this instance , however,
to find that the Company was legally wrong. Respondent's
merit increase program had been in effect since the plant's
opening. As noted above, it provided for an automatic
review each 3 months following an employee's initial 90-
day probationary period. Whether a raise was granted, and
its precise amount, varied, and was in that sense'discretion-
ary, but the standards were carefully set forth, and
supervisors were given lengthy rating sheets for the various
classifications . The amount of any particular increase was
dependent on these ratings . But it was an established
condition of employment both that the review be held and
the increases be given if warranted by the supervisor's
rating . Indeed, during the preelection period, reviews were
given but any increases normally resulting therefrom were
withheld , or, as Respondent puts it in its brief "Only the
merit increases, i.e., discretionary increases in wages, were
discontinued" (emphasis supplied).?
Respondent , in its excellent brief , points particularly to
two Second Circuit cases, J. J. Newberry Company v.
N.L.R.B., 442 F.2d 897 (1971), and N.L.R.B. v. Dorn's
Transportation Company, 405 F.2d 706 (1969), as requiring
a dismissal here , and argues also that the thrust of the
Supreme Court's decision in N.L. R.B. v. Benne Katz, d/b/a
Williamsburg Steel Products Co., 369 U.S. 736 (1962),
where violations of the Act were found when an employer
gave benefits without bargaining with the certified union,
mandated its good-faith determination not to give the
merit increases in the instant case . There is a short answer
to Respondent's reliance on Newberry and Dorn's, both
reversed the Board, and the Second Circuit's position has
not been accepted by the Board, which has since those
cases continued to reiterate the principle that "during an
organizational campaign an employer must decide whether
or not to grant improvements in wages and benefits in the
same manner as it would absent the presence of the
Union." Sinclair & Rush, Inc., 189 NLRB 25; Liberty
Telephone & Communications, Inc., 204 NLRB No. 54. As
the Board's decisions in Newberry, Sinclair & Rush, and
Liberty Telephone all followed the Supreme Court's
decision in Katz, manifestly the Board does not view Katz
as impinging upon its line of decisions in this respects
That this case is controlled by the Board's holdings in
Newberry, Dorn's, Sinclair & Rush, etc., is evident from
Respondent 's own statements in its brief, which, as set
forth above, emphasize that the failure to bestow the merit
increases was "an established past practice," which was
"discontinued" because of the pendency of the Union's
petition. Indeed, this case is a fortiori to Newberry, where
the timing of the reviews "might vary," and were only
"fairly regular ." Here , the timing of the merit increase
review was fixed at 90-day intervals. Thus, in Newberry, the
company could have refrained from giving an increase to
any particular employee during the preelection period
without departing, on the face of the matter, from its
"fairly regular" practice. The question of whether an
increase would be given and its amount were "subjective
and discretionary" in Newberry and Dorn's, as well as in the
instant case , so no distinction exists on that score.
In Katz, the Supreme Court found that the company
violated Section 8(a)(5) of the Act by instituting a new
system of merit increases unilaterally which, the Court
pointed out, were not "a mere continuation of the status
quo." (Id. at 746.) That case does not, in my opinion,
establish that the bestowal of the increases here , pursuant
to the preexisting program that Respondent had in effect,
could have violated Section 8(a)(l), and hence cannot
establish that the withholding of the increase does not
violate Section 8(a)(1).
With regard to the Union's letter to the Company, to the
extent it requested the Company to do or not to do
anything, it would have nothing to do with what the
Company was legally obligated to do. In fact, the language
of the letter quoted only asked the Company not to make
changes, and the gravamen of the violation here is that the
Company did make changes-it withheld increases that
would have been given to employees because of the
Union's petition . For all these reasons, I find that
Respondent violated Section 8(a)(1) of the Act by
withholding the merit increases.
CONCLUSIONS OF LAW
1. Respondent, by withholding merit increases from its
employees during the pendency of the Union's representa-
tion petition , has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. Respondent has not violated the Act in any other
respect.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, and that it make the
employees whole for any losses they have sustained as a
consequence of withholding merit increases during the
preelection period, with interest computed as in Isis
Plumbing & Heating Co., 138 NLRB 716. I have found that
Respondent was in "good faith" in its withholding of the
merit increases. In view of the further fact that the Union
won the election, and that bargaining was in process at the
time of the hearing, I see no need in this case for the
posting of a notice, particularly because the vast bulk of
the employees will receive "back pay," and thus be
apprised in a meaningful manner that the Company made
a mistake. I shall accordingly refrain from requiring
Respondent to post any notice. i
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
r At other points in its brief , Respondent reiterates "The discontinuation 9 "Manifestly" because, although the Board does not deem itself bound
of the merit increase program ," or "Jeffco had an established past practice of by contrary views of the Courts of Appeals, it does, of course , follow the law
granting merit reviews and increases prior to the petitioned-for election" as set forth by the Sunreme Court.
(emphasis supplied throughout).
JEFFCO MFG. CO.
ORDERS
Respondent, Jeffco Manufacturing Company, a division
of Ball Corporation, Williamsburg, Virginia, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Withholding benefits from its employees because a
union has filed a representation petition seeking an
election among them.
(b) In any like or related manner interfering with,
restraining, or coercing their employees in the exercise of
their rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
791
(a) Make its employees whole, in the manner described
in the section hereof entitled "The Remedy," for any losses
suffered by virtue of the witholding of the merit increases
during the pendency of the Union's petition.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms hereof.
(c) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.