Robotron Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1975

216 N.L.R.B. 396 (N.L.R.B. 1975)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robotron Corporation and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW. Cases
7-CA-10884 and 7-RC-12005
January 30, 1975
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
CERTIFICATION OF RESULTS OF
ELECTION 3
It is hereby certified that a majority of the valid
ballots has not been cast for International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, and that said
labor organization is not the exclusive representative
of all the employees, in the unit herein involved,
within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 27, 1974, Administrative Law Judge
Thomas S. Wilson issued the attached Decision and
Report on Objections in this proceeding. Thereafter,
the General Counsel filed exceptions and a support-
ing brief; and the Respondent filed an answering
brief, cross-exceptions, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision and Report on Objections in light
of the exceptions, cross-exceptions, and briefs and
has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
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-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Robotron Corporation, Detroit, Michigan, its
officers , agents , successors , and assigns , shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 1(a):
"(a) Interfering with, restraining, and coercing its
employees in the rights guaranteed them in Section 7
of the Act, by coercively interrogating its employees
about their union sympathies; systematically solicit-
ing gripes , grievances , and complaints from its
employees; maintaining and repromulgating its
illegal no-solicitation and no-distribution rules; and
unilaterally making changes and improvements for
the correction and improvement of the gripes,
grievances, and complaints voiced by its employees."
2. Substitute the attached notice for that of the
Administrative Law Judge.
216 NLRB No. 79
i In agreeing with the Administrative Law Judge that the Respondent's
no-solicitation and no-distribution rules are in violation of the Act , we note
our respective positions set forth in Essex Internationa l,, Inc, 211 NLRB 749
(1974).
2 Although the Administrative Law Judge found that the Respondent
unlawfully interrogated employees , he inadvertently omitted reference
thereto in his recommended Order , and we shall amend the Order in this
regard.
3 The Administrative Law Judge recommended in Case 7-RC-12005
that the Union 's objection to the rerun election of January 17, 1974, be
overruled . On January 8, 1975, the Union filed with the Board a request to
withdraw its objection to that election and , thereafter , the General Counsel
requested withdrawal of his exceptions to the disposition of that objection in
the reprepentation case by the Administrative Law Judge. These requests
are hereby granted . Accordingly, we need not rule on the recommendation
relating to the Union 's election objection . However , as a majority of the
valid ballots were not cast for the Union in the election of January 17, 1974,
we shall issue a certification of the results of that election
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
give evidence, the National Labor Relations Board
found that we, Robotron Corporation, Detroit,
Michigan, violated the National Labor Relations Act
and ordered us to post this notice. We intend to carry
out the Order of the Board and abide by the
following:
The law gives you the right:
To form, join, or help unions
To choose a union to represent you in
bargaining with us
To act together for your common interest
or protection
To refuse to participate in any or all of
these things.
WE WILL NOT coercively interrogate you about
your union sympathies.
WE WILL NOT interfere with these rights.
WE WILL NOT systematically solicit your gripes,
grievances, and complaints in order to discourage
union membership and activities.
WE WILL NOT unilaterally make changes and
improvements for the purpose of correcting or
improving the gripes, grievances, and complaints
ROBOTRON CORPORATION
you have voiced to us at our solicitation for the
purpose of discouraging membership and activi-
ties on behalf of International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, or any other
union of your choice.
We hereby notify you that we have rescinded
our illegal no-solicitation and no-distribution
rules.
WE WILL NOT, in any other manner, interfere
with, restrain, or coerce our employees for the
purposes of interfering with the rights of the
employees to engage in union activities as
guaranteed in Section 7 of the Act.
ROBOTRON CORPORATION
DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge duly filed on February 4, 1974, by International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, herein referred to
as the Union or UAW, the General Counsel of the
National Labor Relations Board, herein referred to as the
General Counsels and the Board, respectively, by the
Regional Director for Region 7 (Detroit, Michigan), issued
its complaint dated March 22, 1974, against Robotron
Corporation, herein referred to as the Respondent or the
Company.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the National Labor Relations Act, as amended,
herein referred to as the Act.
Included in this complaint and consolidated therewith
"for the purpose of hearing, ruling and decision by an
Administrative Law Judge" is the Union's objection to the
results of the rerun election held on January 16, 1974,
which objection is also included in the complaint herein as
one of the alleged violations of Section 8(a)(l) of the Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice, a hearing on such issues was held
before me in Detroit, Michigan, on May 23, 1974. All
parties were represented by counsel or representative and
were afforded full opportunity to be heard, to produce and
cross-examine witnesses , and to introduce evidence and
material pertinent to the issues . At the conclusion of the
hearing, oral argument was waived. Briefs were received
from General Counsel and Respondent on July 8, 1974.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
I This term specifically includes the attorney appearing for the General
Counsel at the hearing.
2 All dates are in the year 1973 unless otherwise specified . Sparschu
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
397
The complaint alleged, the answer admitted, and I,
therefore, find that:
Robotron Corporation is, and has been at all times
material herein, a corporation duly organized under,. and
existing by virtue of, the laws of the State of Michigan. At
all times material herein, Respondent has maintained its
only office and place of business at 21300 West 8-Mile
Road, in the city of Southville, and State of Michigan,
herein called the Southville plant. Respondent is, and has
been at all times material herein, engaged in the design and
manufacture, sale, and distribution of electronic welding
controls and induction heating machines and related
products. Respondent's plant located at Southville, Michi-
gan, is the only facility involved in this proceeding. During
the year ending December 31, 1973, which period is
representative of its operations during all times material
hereto, Respondent, in the course and conduct of its
business operations, purchased and caused to be transport-
ed and delivered at its Southville plant goods and materials
valued in excess of $1 million of which goods and materials
valued in excess of $50,000 were transported and delivered
to its plant in Southville, Michigan, directly from points
located outside the State of Michigan.
Accordingly, I find that Respondent is now and has been
at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aerospace and
Agricultural Implement Workers of America , UAW, is a
labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
On June 27, 1973, Respondent and its assistant general
manager, Thomas M. Sparschu, learned that there was
union organizational activity among Respondent's employ-
ees.
Respondent wasted no time. Immediately thereafter in
July 1973,2 Sparschu, accompanied by other high corpo-
rate officials, began systematically holding meetings with
various small groups of employees by departments.
About these meetings Sparschu testified as follows:
A. The purpose of the meetings was we had heard
at that point and [of ] time unofficially that there was a
potential union activity in the plant; that our employ-
ees were dissatisfied with something. None of them had
come forward through the complaint procedure or
suggestion box or any petitions at that time. So we
called a group of employees together at that time, small
testified that these meetings occurred in "June and July" but Respondent's
written announcements of the time refer only to July.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
groups, usually departmental groups and we indicated
that we were aware that there apparently was union
activity going on ; that we were making no promises
and no threats, and that the purpose of our meeting
was simply to inquire of them what they thought
Robotron could do better in virtually all areas. And we
received from them suggestions from fixing water
fountains, doubling my wages, firing my superior, and
215 comments covering all areas . And during these
meetings we virtually listened only unless somebody
put a specific question to us about clarification of a
policy, such as, 'Mr. Sparschu, what is the overtime
policy,' and that type of thing. But basically we listed
- we listened and recorded the comments of the
employees and we ended each meeting again with the
statement there were no promises, no threats implied or
otherwise . So we were basically listening to employees'
suggestions about what could be done to improve the
situation at Robotron.
Thus from the complaints , gripes, grievances, and
suggestions expressed during these systematic meetings,
Respondent received and recorded no less than 215
criticisms of all sorts and varieties from the employees.
Thereafter management considered these matters in
private.
Although Respondent 's beef suggests that the employees
"volunteered" the above information , Sparschu ended his
testimony by admitting : "We solicited comments and
suggestions from all employees in the corporation."
In a Robotroniques news release to all Respondent's
employees dated September 6 Respondent announced:
Working hour regulations
New working hour rules and regulations effective
October 1, 1973, will be published in the very near
future . The final details of these new rules are now
being developed; however, in order to provide suffi-
cient time for review and analysis by our employees, we
are hereby releasing the broad principles of these
anticipated new rules.
1. Tardiness will be measured from the exact shift's
starting time ; however, a 3 minute grace period will be
allowed before any wages are docked.
2. A compromise compulsory and voluntary over-
time system will be included to provide employees with
working hour flexibility.
3. All Saturday working hours will be paid at time
and one-half.
4. Lunch period will be increased to 42 minutes for
all departments except sales which will continue to
have 1 hour.
5. All employees will be allowed to prepare for
lunch or to stop work at the appropriate 5-minute
signals as required , but all employees will be required
to remain at Robotron until the correct lunch or
quitting time.
6. Coffee and other liquid refreshments may be
obtained and consumed at any time during the day.
This issue of Robotroniques ended as follows:
Employee - Management meetings
"A new series of Employee - Management meetings
will be held early in October to assess Robotron's
progress in resolving the many employee complaints
which were registered during our July Employee-
Management meetings."
As luck would have it, the next day, September 7, the
Union filed its representation petition for an election in the
appropriate unit described as follows:
All full-time and regular part-time production and
maintenance employees, shipping-receiving employees,
truckdrivers, including electricians and toolmakers
employed at the employer's two buildings commonly
known as 21300 W. 8-Mile Road, Southville, Michigan,
but excluding office clerical employees, professional
employees, draftsmen, guards and supervisors as
defined in the Act.
At the hearing the parties stipulated and, therefore, I find
that "during the month of October, 1973, but before the
election of October 24, [admitted supervisor ] Roger Dean
asked Marcia Rich, Sue Devore and Sun Lewis , employees
of Robotron at the time , whether they were for or against
the Union, the charging party herein, in the upcoming
election."
On October 1, as a result of the meetings with employees,
Respondent published its newly revised "work rules and
regulations ." In this document under a section entitled
"rules of conduct" Respondent repromulgated , or repub-
1 ished, the following rules , among others:
11. Unauthorized soliciting or collecting contrib-
utions during working hours.
12. Unauthorized distribution of literature on
company property.3
On October 3 Sparschu for Respondent issued, in his
phraseology , "a tabulation of some changes , or improve-
ment that were made in the general situation at Robotron"
which were distributed to a number of the employees. The
first paragraph of this document reads as follows:
Employment/Management meetings were held in
July, 1973, during which 210 employee complaints were
registered . Since that time the following 33 items have
been completed which had corrected or improved 97 of
the 210 complaints.
Among other improvements mentioned in the above
documents were the following:
1. Vacation plan revised and improved.
3. Absenteeism and tardiness system simplified
and made more flexible.
3 It was stipulated at the hearing that "Robotron Corporation did not take any action to enforce said rules."
ROBOTRON CORPORATION 399
4. Attendance award installed.
s • r s s
12. Saturday overtime pay.
/ R • i ►
19. Tardiness grace period established.
w r s s s
24. Refreshments allowed at any time.
25. Approximately 30 personal problems have been
reviewed by management and/or Al Koehler.
26. Second tier wage levels published which affect
approximately 27 employees.
Among the other improvements mentioned therein were
the purchase of some six pieces of machinery and certain
environmental improvements which were made, especially
to the water fountain and to the upstairs ladies' restroom.
On October 24 the scheduled representation election was
conducted among Respondent 's employees resulting in a
vote of 60 to 51 against union representation.
On October 29 the Union filed objections to the conduct
of this election based in large part on the matters
mentioned heretofore.
November 28 proved to be a busy day.
Through a Robotroniques dated that day Respondent
notified its employees as follows:
Wage Adjustment
We have completed our analysis of Robotron's wage
structure and will put a general increase for all
employees into effect on December 3, 1973 (paycheck
issued December 12, 1973).
Historically many factors influenced our decision on
the magnitude of this wage increase. It has evolved into
a truly general increase inasmuch as we have given
consideration to all of the following items.
1. Government Anti-Inflation Program.
2. Cost of Living.
3. Productivity
4. Competitive Wage Conditions.
5. Robotron's Financial Condition.4
Also on that same day the Regional Director issued and
had served on Respondent an order sustaining Union's
Objection I to the election of October 24, i.e., that
Respondent's no-solicitation and no-distribution rules
were illegal and inhibited the employee's freedom of choice
in the representation election , so that he recommended
that said election be set aside . In pertinent part the
Regional Director held:
This objections [sic] contends that the Employer's
rules prohibiting solicitation and distribution of litera-
ture are unlawful . These rules , which had been in effect
for a substantial period of time and were repromulgat-
ed effective October 1, 1973, during the preelection
period and, inter alia, prohibiting certain conduct are
verbatim as follows:
11. Unauthorized soliciting or collecting
contributions during working hours.
12. Unauthorized distribution of literature
on company property.
Violation of these rules subject an employee to a
four-step disciplinary action procedure, culminating in
discharge.
The evidence is undisputed that these rules were
maintained by the Employer during the preelection
period. Moreover, these rules were repromulgated
effective October 1, 1973, so that the employees would
know that they were still in effect. Under Board
precedent, any rule of this nature is presumptively
invalid . Campbell Soup Company, 159 NLRB 71, 81-82
(1966); Southern Electronics Co., Inc., 175 NLRB 69, 72
(1969); Avon Convalescent Center, 200 NLRB 702
(1973). The Ohio Masonic Home, 205 NLRB 357 (1973).
The Board has held that the mere existence of an
unlawful no-solicitation or distribution rule, irrespec-
tive of enforcement, warrants a new election as its mere
existence chills freedom of permissible conduct. P. R.
Mallory & Co., 167 NLRB 647, 648 (1967); Edmont,
Inc., 139 NLRB 1528 (1962); Sterling Faucet Company,
Texas Division, 203 NLRB 1031 (1973).
The Employer avers that the phrase "working hours"
was understood by employees not to apply to their own
time such as coffee breaks and lunch time; yet the term
"working hours" has been held presumptively invalid
on its face and the rules mere existence has a
hampering impact on legitimate organizational activi-
ties . ESB, Inc., Exide Alkaline Battery Div., 177 NLRB
778, 785 (1969). Rex Disposables Division of DHJ
Industries Inc., 201 NLRB 727 (1973). Accordingly, it is
recommended that Petitioner's Objection No. 1 be
sustained.
As of December 4 Respondent- supplied its supervisors
with a list of wage increases for each employee under that
supervisor's supervision. The supervisors then informed the
employees under them individually as to the wage increase
each had received.
These December 4 wage increases which Respondent
granted consisted of a 21 -cent cost-of-living increase plus a
4-percent wage increase to each of its employees which
totaled around 40 cents per hour per employee, the largest
wage increase Respondent had ever granted.5
This 1973 wage increase was first reflected in the
paychecks received by its employees on December 13,
1973.
On December 21 a Board panel consisting of Chairman
Miller and Members Fanning and Penello approved, in the
absence of exceptions , the Regional Director's decision of
November 2, and ordered the October 24 election set aside
and a second election to be held. The payroll eligibility
date for voters in the rerun election was December 23,
4 The above announcement was a verbatim copy of an announcement
Respondent made to its employees in a Robotroniques dated November 29,
1972.
5 The December 1972 wage increase had been between 12-14 cents per
hour, the 1971 increase had been a 3 -percent wage increase and in 1970 it
had been 15 cents per hour.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973.6
The second election was held on January 17, 1974. This
time the vote was 64 to 55 against representation.
On January 22, 1974, the Union filed its objections to the
rerun election . On March 20, 1974, the Union withdrew all
its objections to that election except the one pertaining to
the December 4, 1973 , wage increases.
On March 22 the instant complaint together with the
objections to the rerun election was issued by the Region.
B. Conclusions
Thus the facts here prove that in July 1973, immediately
upon the Respondent's discovery of the union organizing
campaign among its employees, Respondent for the first
time in its history solicited from all its employees through a
systematic series of meetings held by and with Sparschu
and other top echelon management personnel all the
gripes, grievances, and/or suggested improvements for
Respondent that they had or could think of. In all
Respondent received-and recorded-210 or 215 of these
suggestions.
Of course, as Sparschu testified, Respondent was careful
to begin and conclude each of the systematic inquiry
meetings by stating that "we are making no promises and
no threats." Despite their reiteration these words must be
classed solely as pure rhetoric.
Few, if any, employees would be so naive as to believe
that Respondent was soliciting their gripes , grievances, etc.
at these systematic meetings and at the cost of production
just for the fun of it or to waste time . This is particularly so
in view of the timing of these systematic meetings followed
so immediately after the beginning of the Union's
organizational drive. Despite Sparschu's statements, the
implication from these meetings that the Respondent
intended to satisfy such grievances and thus block the
Union's organizational drive is so clear as to be unmistaka-
ble. Remove the dissatisfactions and there would be no
need for a uiiion.
Under the circumstances here Respondent's systematic
solicitation of employees' dissatisfactions immediately on
learning of the organizational drive constitutes interfer-
ence, restraint, and coercion of its employees in the
exercise of their Section 7 rights in violation of Section
8(a)(l) of the Act.7 It is so found.
If there could be any doubt remaining about the
implications ansing as to the purposes of the employee-
management meetings , that doubt was resolved by Spar-
schu's announcement of September 6 of the "New
Working Hour Rules and Regulations effective October 1.
1973."8 The implicit had thus become explicit. This, of
course, was followed on October 3 with the announcement
of the 33 unilaterally made changes in wages, hours, and
working conditions which Respondent announced "im-
proved or corrected 97 of the 210 complaints" received
from the employees . Once again the timing of these
announcements alone proved the interconnection between
the benefits promised and the union organizing campaign.
As the possibility existed that these 33 changes might
prove insufficient for Respondent 's purposes , Respondent
had carefully in its September 6 announcement presented
the employees with yet another "carrot" by announcing
that further employee-management meetings would be
held "early in October ." The election, of course, was
scheduled for October 24.
The facts require , and therefore I find , that the benefits
so conferred by Respondent on its employees on October
1, 1973, were conferred for the purpose of interfering with,
restraining, and coercing its employees in the exercise of
their Section 7 rights by thereby purportedly eliminating
the necessity or reason for union representation in
violation of Section 8(axl) of the Act . See N.L.R.B. v.
Exchange Parts Co., 375 U .S. 405 ( 1964).
Finally as to events prior to the first election of October
24, based upon the stipulation, I must find that Respond-
ent interrogated three of its then employees as to whether
they were for or against the Union in the upcoming
election . This is such a well-known violation of Section
8(a)(1) of the Act as not to require any citation of
authority.
On October 1 Respondent republished or repromulgated
its existing no-solicitation rule prohibiting unauthorized
solicitations "during working hours" and its no-distribu-
tion rule prohibiting unauthorized distributions without
time limitation.
As of that time, as the Regional Director found, Board
law was settled that such rules were ambiguous as to time,
were to be interpreted against the maker thereof and were
illegal as constituting interference, restraint , and coercion
of the employees by depriving them of the rights guaran-
teed them in Section 7 of the Act thus violating Section
8(a)(1) of the Act. The Regional Director's November 28
ruling was a correct exposition of the then settled Board
law. If perchance his ruling was not correct, then the Board
was remiss in its December 21 affirmance thereof even in
the absence of exceptions thereto.
However, recently certain members of the Board have
begun to perceive a purported distinction between the use
of the words "company time," "work time ," and "working
time" in these rules in that the first two were ambiguous as
to time because the break periods, lunchtime , and time in
the restrooms were not specifically excluded from the
prohibition of the rule. These Board members appeared to
believe that the phrase "working time " or "while people are
working" 9 was not ambiguous apparently because the
legally trained mind recognized that one was not "work-
6 If the Regional Director's citation of the law applicable to the no-
solicitation and no-distribution rules of Respondent had been incorrect as
of that time , it would appear that even in the absence of exceptions it was
incumbent upon the Board to correct the Regional Director.
r Landis Tool Co, Div. of Litton Industries v. N.LR.B., 460 F.2d 23 (C.A.
3, 1972), cert. denied 409 U.S. 915 (1972). N.LR.B. v. Tom Wood Pontiac,
Inc., 447 F.2d 383 (C.A. 7, 1971). N.LR.B. v. Delight Bakery, Inc., 353 F.2d
344 (C.A. 5, 1965).
8 The following day, September 7, the Union filed its petition for
representation.
8 In Litho Press of San Antonio, 211 NLRB 1014 (1974), the Board held:
The above rule while containing some ambiguity in its first sentence
reference to "company time" goes on to make clear that it was intended
to restrict union solicitation only "while people are working " and thus
leaves the employees free to engage in union solicitation during the
employees' nonworking time. Accordingly as it is clear from the
context that the rule does not apply to nonworking time, we find that
the rule does not violate Section 8(ax1) of the Act.
ROBOTRON CORPORATION 401
ing" while on breaks , at lunch, or in the restroom. The
trouble with this, of course, is that this rule was made
applicable to employees, very few, if any, of whom have
been trained in such sophisticated legal technicalities.
Rules covering employees should be phrased so as to be
understandable to the employees to whom they are
applicable.
I find the phrase in Respondent's no-solicitation "during
working hours" to be ambiguous in that this phrase may
include all the hours from the beginning of work to the end
of the workday and thus includes at least break periods,
lunches, and visits to the restrooms, if not the lunch period.
As the phrase is thus ambiguous as to time, the rule must
be interpreted against the party promulgating the same in
accordance with the rule of law settled during the early
days of the English common law.10
Hence I find that both Respondent's republished no-
solicitation and no-distribution rules violate Section 8(aXl)
of the Act.
Even if perchance I am wrong on the no-solicitation rule
containing the words "during working hours ," the no-
distribution rule without any stated time limitation is still
in violation of Section 8(aXl) of the Act.
Respondent spends only 8 out of 26 pages in its brief on
the three unfair labor practices found above. It argues that
Respondent has always encouraged employees to present
grievances and has corrected them in the past . But never
before in its history has Respondent ever held systematic
meetings with all its employees actively soliciting their
grievances . The brief also argues that there is no proof of
any "antiunion attitude" on Respondent's part "through its
action." But the brief also acknowledges that "the
knowledge of possible organization activity caused the
meeting [the July series of employee -management meet-
ings ] to be held at that time." Hence Respondent knew
that something was "bothering" its employees and creating
interest in union representation which Respondent wanted
to know about-and correct, as it did-before the election.
Respondent's brief also argues that Respondent's no-
solicitation and no-distribution rules were so buried in
Respondent's 72 pages of rules and regulations that they
could not have bothered the employees. But Respondent
forgets that on October 1, just before the election, it
reduced those 72 pages of rules into 3 pages of which the
illegal rules were numbers 11 and 12 so that they were no
longer buried . The brief also argues that after the Regional
Director's decision it eliminated those rules . That was too
late. Respondent 's brief further claims that on September 6
when Sparschu announced the new rules effective as of
October 1, Respondent thought the union activity had
come to an end . But the next day the Union filed its R
petition . The brief excuses Dean 's illegal interrogation of
Hence, finding no ambiguity , the Board did not interpret the rule against
the maker thereof, the respondent-employer.
ie In Coleman Co., 212 NLRB 927 (1974), a majority of the Board
consisting of Chairman Miller and Members Kennedy and Penello, arguing
that "but even assuming that the requirement of an application for charter
membership is susceptible of that interpretation, that is not the only
construction that is permissible ; and therein lies the difficulty with the
dissent," held as follows:
We think that the requirement in the case before us of an application
for charter membership is at least equally ambiguous and just as
susceptible of an interpretation by the employees as it is to their benefit
three employees on the ground that supervisors had been
cautioned not to do this and that the interrogation was an
"isolated event." One might agree on this last point if the
other violations were not there. Finally, Respondent's brief
suggests that "any wrongdoing on the part of the employer
as it relates to those areas which were the subject matter of
the first objection to the conduct of the election were
remedied by the holding of a new election and the
campaign period preceding the second election was
unfettered with any like activities." While it is true that the
Regional Director and the Board ordered a rerun election
because of the illegal no-solicitation and no-distribution
rules , neither did anything to "remedy" any of these three
unfair labor practices nor could they as this was only an
objection to election case . Nor in the light of the December
4 wage increases can one say that the "campaign period
preceding the second election was unfettered with any like
activities."
Thus the facts here do not appear to justify the last part
of the above-quoted sentence from Respondent's brief.
At this point of time the Union had lost the election of
October 24, had filed objections to that election and was
awaiting a ruling thereon so that the possibility of a rerun
election was still present. By a decision dated November 28
the Regional Director, as noted above, considered one
objection, sustained it, and recommended a rerun election
which was subsequently approved by the Board on
December 21. Hence from October 29 on , a rerun election
was a distinct possibility and from December 21 on, such
rerun election was definite.
By a Robotroniques dated "11-29-73" Respondent
announced that Respondent would "put a general wage
increase for all employees into effect on December 4, 1973
(paycheck issued December 13, 1973)."
It is true that at least since 1969 Respondent had
annually announced a general wage increase for its
employees during the month of November. In fact the 1972
increase had been accounced in a Robotroniques dated
"11-28-72" in identical terms with the announcement
made in 1973. So that in 1973 Respondent was merely
following- the established custom of several years' standing.
Hence Respondent cannot be faulted for following its
regular custom as to the pay increase in 1973 even with a
rerun election in the offing.
On "11-24-73" 11 Sparschu worked out four different
options for figuring the 1973 wage increases : (1) a straight
41-cent per hour increase; (2) a 26-cent cost-of-living
increase plus 3-percent increase of wages; (3) 21 cents for
cost of living plus 4 percent of wages; and (4) 26 cents or 8
percent of wages.
Thereafter Respondent chose option number 3 which
resulted roughly in a 40-cent per hour increase per
to make a union comnuttment before the election , and thereby "come
in at the ground floor," to avoid paying the initiation fee. If the letter
was not intended to be thus read , it was petitioner's duty, as explained
in Inland Shoe Manufacturing Co., Inc., to clarify that ambiguity or
settle whatever consequences might attach to employees ' possible
interpretations of the ambiguity. '
In my opinion "working hours" is also susceptible of at least two different
interpretations so the Coleman rule should be applied both in Litho and the
instant case.
11 Sparschu 's work sheets are so dated.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee figured as a 31-cent per hour or 11.8-percent
increase for the low paid employees, 41 cent per hour for
the medium paid and 50 cents per hour or 6.9 percent for
the higher paid employees. The increase was applicable to
all employees, supervisors, and officers of Respondent
except its president, Sparschu, and one other.
It is undisputed that this 1973 increase was the largest
ever granted by Respondent as the 1972 increase was 12 -
14 cents per hour, the 1971 increase was 3 percent of wages
and the 1970 increase was 15 cents per hour.
On December 4 Respondent supplied each of its
supervisors with a paper showing the wage increase for
each employee under his supervision which the supervisor
then took to the individual employee and notified him of
his own individual increase . This record does not indicate
that this method was not the customary method by which
the individual employee learned of his annual increase so
that, in the absence of any such evidence, it must be here
assumed that this method of notification also was custom-
ary.
Under the economic conditions then existing the
employees were surprised, gratified, and grateful when they
received the December 13 checks containing the increase
thus granted.
As noted, the vote on January 17 was 64 to 55 against
representation which was just about the same margin as in
the October 24 election.
Under these facts General Counsel in his brief argues:
Effective December 3, 1973, Respondent granted to
its employees a wage increase that averaged 40 cents
per hour per employee. The General Counsel does not
contend that the timing of the wage increase is suspect,
as it has been Respondent's practice to give a yearly
plant-wide wage increase in November or December.
However, Respondent took advantage of its past
practice to give its employees an increase much larger
than they had ever before received in order to induce
them to vote against the charging party.
On the other hand Respondent argues in its brief that the
December 4 increase "was rooted in historical pattern and
traditions" of Respondent. I agree that the facts show this
to be true both as to timing and factors considered.
Respondent argues that the increase was economically
required because at that time Respondent's wage rates had
fallen so far out of line with area wage standards as not to
be competitive in the job market especially with its rival
Weltronics. It cites the fact that its turnover rate "doub-
led." It fails to cite the facts that its employment
complement in 1973 increased rather dramatically and that
most of the turnover occurred among new hires which fails
to confirm Respondent 's contention. Respondent also cites
the fact that in two departments it was having trouble in
hiring or so Sparschu testified . This argument is weakened
by the fact that Respondent made "wage adjustments" in
these two departments in May 1973 which, of course, was
supposed to correct that situation.
Finally, it is argued in Respondent 's brief that there is no
showing in this record that Respondent had "an antiunion
attitude through its actions" nor was there any antiunion
motivation for the wage increases of December 4. To the
contrary Respondent's antiunion attitude was clearly
demonstrated by the systematic solicitation of grievances
immediately upon its learning of the union organizational
campaign and because of that campaign. Respondent's
correction of 97 of the 210 grievances received through the
solicitation thereof proves the same antiunion motivation
on Respondent's part.
No doubt because of the anticipated rerun election,
Respondent was not at all sorry to be able to grant its
employees the largest wage increase ever prior to the
holding of the anticipated election. In the absence of the
past history of Respondent's policy of giving raises in
November and December, Respondent's antiunion moti-
vation here could hardly have been clearer. But here that
past history of annual November - December raises
required that Respondent give raises as usual even with the
knowledge of the forthcoming election. Under the circum-
stances it seems quite clear that Respondent gave thanks
for the past history in November - December 1973.
That leaves only what General Counsel refers to as "the
unusually large general wage increase" of December. As
noted , this December 4 increase was admittedly the largest
by far Respondent had ever granted its employees. If that
increase was out of line then it appears that Respondent
thereby was clearly attempting to induce the employees to
vote against representation in the coming election.
The sockdolager here is the fact that in September 1973,
this same Union had negotiated a wage increase with
Weltronic, Respondent's rival, located a mile or so away,
under its contract with Weltronic. According to the
undisputed evidence here, that negotiated wage increase at
Weltronic amounted to 25 cents for cost of living plus 35
cents per hour or 60 cents per hour in total. In the light of
this how can Respondent's 40 cents per hour increase be
considered out of line particularly after enjoying a
profitable year in 1973?
These figures, however, raise a bothersome question.
Sparschu's testimony here indicates that in 1973 Respond-
ent's wages had fallen so far behind those of Weltronic that
Respondent 's were not competitive . Yet even after Wel-
tronic's 60-cent wage increase , according to Sparschu,
Respondent's 40-cent increase once again made Respond-
ent's wage rates competitive . Taken at face value these
figures would appear to put Respondent's wages another
20 cents per hour lower, or less competitive, than those of
Weltronic's. General Counsel's brief fails to mention this
apparent discrepancy and I fail to find anything in this
record to explain this phenomenon.
However, under the testimony in this record, while
suspicious , I can only. fmd that Respondent's December 4
wage increase under the circumstances was economically
justified and hence I recommend the dismissal of this
allegation of the complaint.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , set forth in section III,
above, and occurring in connection with Respondent's
operation described in section I, above , have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
ROBOTRON CORPORATION 403
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
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:
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Respondent argues and General Counsel's brief, as I
read it, appears to agree that the three unfair labor
practices found above, to wit, the systematic solicitation of
gripes, grievances, and complaints from its employees, the
no-solicitation and no-distribution rules, and the 33
announced improvements made unilaterally by Respond-
ent as a result of the 215 solicited employees' suggestions,
were "remedied" by the holding of the rerun election on
January 17, 1974. I cannot agree.
The Regional Director merely had objections to the
election of October 24 before him, not unfair labor
practices. He had no authority to find unfair labor practice
violations and made no such findings. Hence he found no
unfair labor practices and, therefore, corrected none. The
three unfair labor practices mentioned heretofore are
consequently still unremedied.
Because of the timing, the type, and extent of the unfair
labor practices engaged in by Respondent, it is clear that
Respondent has an opposition to the policies of the Act in
general, and, therefore, I deem it necessary to order
Respondent to cease and desist from in any manner
interfering with the rights guaranteed to its employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record herein, I make the following:
CONCLUSIONS OF LAW
1. Robotron Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union, United Automobile, Aero-
space, Agricultural Workers of America, UAW, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By systematically soliciting the gripes, grievances,
and complaints from its employees, by maintaining and
repromulgating its illegal no-solicitation and no-distribu-
tion rules, and by unilaterally making changes and
improvements intended to correct or improve the gripes,
grievances, and complaints voiced by its employees in
order to discourage union membership and activities
among its employees , Respondent ir}terfered with, re-
strained , and coerced in the rights guaranteed them in
Section 7 of the Act in violation of Section 8(axl) of the
Act.
4. By granting the December 4, 1973, wage increase to
all its employees, Respondent did not violate Section
8(a)(1) of the Act.
12 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.
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.
ORDER 12
Respondent, Robotron Corporation, Detroit, Michigan,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Interfering with, restraining, and coercing its employ-
ees in the rights guaranteed them in Section 7 of the Act
by: systematically soliciting gripes, grievances, and com-
plaints from its employees: maintaining and repromulgat-
ing its illegal no-solicitation and no-distribution rules; and
unilaterally making changes and improvements for the
correction and improvement of the gripes, grievances, and
complaints voiced by its employees.
(b) In any other manner interfering with, restraining, or
coercing our employees in the exercise of their rights to
self-organization, to form, join, or assist International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection or to refrain from any
or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify the employees that Respondent has rescinded
its illegal no-solicitation and no-distribution rules.
(b) Post at its Detroit, Michigan, plant copies of the
attached notice marked "Appendix." 13 Copies of said
notice on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
It is hereby found that the only objection to the election
of January 17, 1974, to wit, the wage increase granted by
Respondent on December 4, 1973, be, and the same is,
hereby overruled.
IT IS FURTHER RECOMMENDED that, unless Respondent
notified said Regional Director within 20 days from the
receipt hereof that it will take the action here ordered, the
Board issue an Order directing Respondent to take the
action here ordered.
13 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."