Rike's

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rike's, a Division of Federated Department Stores, Inc. and Retail Clerks Local 1552, Retail Clerks In- ternational Association, AFL-CIO. Cases 9-CA- 11287-1 and 9-RC- 11876 March 20, 1979 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On September 15, 1978, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has excepted to the Administrative Law Judge's crediting of Melinda Longenecker over Marsha Moritz on the basis of the findings that Moritz was still employed by Respondent at the time of the hearing and that Moritz had voluntarily appeared and testified at the hearing on Respon- dent's behalf. In support of its exception, Respondent submitted an affidavit of Moritz in which she stated that at the time of the hearing she was no longer in Respondent's employ and that she had testified pursuant to a sub- pena. The Administrative Law Judge independently found, however, that based upon "comparative testimonial demeanor" he preferred Longenecker's testimony over that of Moritz. Accordingly, we find it unnecessary to pass upon the Administrative Law Judge's findings regarding Moritz' employ- ment status at the time of the hearing or whether she testified pursuant to a subpena. Respondent also has excepted to the Administrative Law Judge's crediting of employee Frieda Hensley, in part at least, because of her "religious con- victions." Federal Rule of Evidence 610 states: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or en- hanced." We agree that a witness' religious convictions or lack thereof has no bearing whatsoever on that witness' credibility. Accordingly, we find that the Administrative Law Judge erred in relying on Hensley's "religious con- victions." However, since the Administrative Law Judge also based his credi- bility resolution independently on Hensley's "testimonial demeanor," we adopt the Administrative Law Judge's credibility finding. 2 In the absence of exceptions thereto, we adopt proforma the Administra- tive Law Judge's dismissal of the allegation that Respondent violated Sec. 8(aXl) of the Act when Supervisor Jerry Severt told employee Henry Yospur that because of Yospur's lack of seniority he might be out of a job if the Union won the election. Further, since we are setting the election aside on other grounds, we find it unnecessary to pass upon the Administrative Law Judge's obiter dictum re- garding Objection 2 as set forth in fn. 40 of his Decision. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Rike's, a Division of Federated Department Stores, Inc., Dayton, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, ex- cept that the attached Appendix B is substituted for that of the Administrative Law Judge. IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the election held at Dayton, Ohio, on April 14, 1977, in Case 9-RC- 11876 be, and the same hereby is, set aside, and that Case 9-RC- 11876 be, and the same hereby is, severed from Case 9-CA-11287-1 and remanded to the Re- gional Director for Region 9 for the purpose of con- ducting a new election. DIRECTION OF SECOND ELECTION A second election by secret ballot shall be con- ducted among the employees in the unit found appro- priate, at such time as the Regional Director deems appropriate. The Regional Director for Region 9 shall direct and supervise the election, subject to the National Labor Relations Board Rules and Regula- tions, Series 8, as amended. Eligible to vote are those in the unit who were employed during the payroll period ending immediately before the date of issu- ance of the Notice of Second Election, including em- ployees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements. Those in the military services of the United States may vote if they appear in person at the polls. Ineligi- ble to vote are employees who have quit or been dis- charged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the commencement thereof, and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike which commenced more than 12 months before the election date and who have been permanently replaced.3 Those eligible shall vote I In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- 241 NLRB No. 25 240 RIKE'S, A DIV. OF FEDERATED DEPFT. S.ORES whether or not they desire to be represented for col- lective-bargaining purposes by Retail Clerks Local 1552, Retail Clerks International Association, AFL- CIO. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had an opportuni- ty to present evidence, the National Labor Relations Board has found that we committed certain unfair labor practices and has ordered us to post this notice. We intend to abide by the following: The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT violate these rights of yours. WE WILL NOT question you in violation of the Act about your or other employees' union views, sympathies, activities, voting intentions, or exer- cise of any right under the National Labor Rela- tions Act. WE WILL NOT discriminatorily enforce or ap- ply against any employees who advocate or are in favor of a union any rule forbidding solicita- tion on our premises in any way differently from the way in which we enforce or apply (or fail to enforce or apply, or relax the enforcement or ap- plication of) and such rule. WE WILL NOT threaten any employee with the loss, cancellation, or withdrawal of any job-re- lated benefit (including, but not limited to, dis- counts on store purchases) or with layoff or other dresses which may be used to communicate with them. Excelsior Underwear Inc., 156 NLRB 1236 (1966); N.LR.B. v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is hereby directed that an election eligibility list, con- taining the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 9 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. reprisal because of union affiliation, support, or voting or in case of unionization. WE WILL NOT offer or suggest that we will ad- just employee grievances in exchange for, or in the event of, any employee abandonment of his or her union support or for urging other employ- ees to do so or to vote against the Union in any election conducted by the National Labor Rela- tions Board, or in case of unionization. WE WILL NOT offer or hold out to any em- ployee the prospect of a promotion for speaking out against the Union or if he or she ceases his or her union activity or support. WE WILL NOT physically assault, restrain, co- erce, or otherwise unlawfully interfere with any employee in connection with his or her free right to vote in accordance with his or her conscience in any Board-conducted election. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the rights guaranteed them in Section 7 of the Act. The election held on April 14, 1977, by the National Labor Relations Board has been set aside and its results voided because of our conduct affecting the outcome of that election, as found by the Board, during the period preceding the holding of that election. In due time, an- other election will be held, and you will be notified of the date, time, and place. All of our employees are free to join or not to join, to be active or not to be active on behalf of, or to vote for or not to vote for Retail Clerks Local 1552, Retail Clerks International Association, AFL-CIO, or other labor organizations of their choice, as they see fit, without interference, restraint, or coercion from us. RIKE'S, A DIVISION OF FEDERATED DEPART- MENT STORES, INC. DECISION PRELIMINARY STATEMENT; ISSuES STANLEY N. OHLBAUM, Administrative Law Judge: This consolidated proceeding' under the National Labor Rela- t Case 9-CA-11287-1: Complaint issued June 30, growing out of charge filed April 20, 1977. Case 9-RC-11876: Upon the basis of an RC petition for certification of representative filed by the Union on January 20, 1977, a Decision and Direction of Election was issued by the Board's Regional Di- rector on March 25. A representation election was conducted under the Regional Director's auspices on April 14, 1977, resulting in 164 votes for and 234 against representation by the Union and in 398 valid ballots cast and 7 additional ballots challenged (total 405) out of approximately 448 eligible voters, the challenges being numerically insufficient to affect the election outcome. However, on or about April 19 or 20, 1977, the Union interposed timely objections to the conduct of the election and to employer conduct allegedly affecting its result. On September 2, the Regional Director issued a Supplemental Decision overruling certain of these objections and setting the remainder down for hearing, consolidating for that purpose the foregoing RC and CA cases, and, upon the coming in of the Administrative Law Judge's decision. transfernng the RC case to the Board. Unless otherwise indicated, dates are 1977 throughout. 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Act, as amended, 29 U.S.C. §151, et seq. (The Act) was heard by me in Dayton, Ohio, on October 25-28 and November 7-10, 1977, (8 hearing days), with all parties par- ticipating throughout by counsel, who were afforded full opportunity to present evidence and arguments, as well as to file briefs and proposed findings and conclusions2 which, after unopposed application for time extension, were re- ceived by January 18, 1978. Record, proposed findings and conclusions, and briefs have been carefully considered. The principal issues presented are whether, in violation of Section 8(a)(1) of the Act, Respondent on various dates and occasions between January and mid-April--the eve of a Board-conducted union representation election-engaged in improper surveillance over employees' lawful union or- ganizational activities, conducted coercive interrogation with respect to employees' union views and activities, dispa- rately enforced against union-sympathizing employees an otherwise valid no-solicitation rule, threatened employees with loss of economic benefits and with layoff for union support or in the event of unionization, offered to adjust employee grievances if employees abandoned support of the Union and dissuaded other employees from voting for the Union, offered promotion to an employee for proselytiz- ing other employees against the Union, offered financial assistance to an employee for dissuading other employees from voting for the Union, exercised physical restraint against and attempted to seize an employee's personal property supposedly relating to employees' union activity, and physically assaulted and instructed an employee to vote against the Union. The union objections to the ensuing election, also here for resolution by consolidation (fn. I, supra), cover most of the same issues, as will be shown. Upon the entire record and my observation of the testi- monial demeanor of the witnesses, I make the following: FINDINGS AND CONC(LUSIONS I. JURISDICTION At all material times, Respondent has been and is a Dela- ware corporation engaged in operation of department stores in and around Dayton, Ohio, including its 5200 Sa- lem Avenue store about 7 miles northwest of Dayton (with over 400 employees, of 50 or more retail establishments comprising the Dayton Mall shopping center), the only lo- cation here involved. During the 12 months immediately antedating issuance of the complaint, a representative pe- riod, the gross volume of Respondent's business exceeded $500,000, and it purchased and received at its Dayton Mall store, through direct shipments in interstate commerce from places outside of Ohio, goods and materials valued at over $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce and in operations af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act and that at all of those times Charging Party-Petitioner Union has been and is a labor organization as defined in Section 2(5) of the Act. 2 These alone total almost 300 pages. II. ALLEGED UNFAIR LABOR PRACTICES Respondent is alleged to have engaged in an assortment of 8(a)(1) violations during the 3-month period (January- mid-April) up to the very eve of the April 14 Board-con- ducted representation election. These will be considered by subject categories. A. Surveillance. January-April (Complaint Pars. 5(m)(i) and (ii)) It is alleged3 that Ms. Billie M. Shortt maintained unlaw- ful surveillance over Respondent's employees during the months of January through April. Shortt is the supervisor of security of Respondent's department store. As to this, Respondent's cosmetics saleslady Francine Harvey (a member of the union organizing committee) tes- tified that from November 1976 on, while she and others handbilled, usually at the employee entrance at the auto pickup door, she observed Shortt watching; and that on one occasion in February4 she noticed Shortt leaning on a store counter, chin in hand, observing or "staring" at her-a practice and stance which, according to Harvey, Shortt fol- lowed and affected for periods of around 15 minutes, inter- mittently during the day, over a period of months; and that from January to or through April, Shortt followed nonem- ployee union representatives (the latter sometimes accom- panied by store employees) throughout the store. Conced- edly, Shortt made no accusation or comment to Harvey. Also concerning this, Respondent's plant saleslady (and union organizing committee member) Jane Rousseau testi- fied that on April 13 (the evening before the election), while she was shopping in the store with fellow employee Harvey after work, she and Harvey were "followed" by Shortt (in the company of several others) to the jewelry counter, where they were asked by one of Shortt's associates or sub- ordinates (Wysong) what they were doing there. They re- plied that they were just shopping. When Harvey volun- teered, "Tomorrow is our big [Union election] day," Shortt rejoined, "[You] shouldn't get [your] hopes up." Rousseau and Harvey continued their shopping without interrup- tion-concededly neither at work nor engaged in any union or other concerted activity within the Act's protection. Further, according to Respondent's budget store lead saleslady of draperies, Lois Weist (also a union organizing committeeperson) and cashier-clerk Frieda Hensley, on or about March , while they were handbilling with other em- ployees just outside of the back entrance to the store (lead- ing to a parking lot), they observed Shortt looking through the door and taking notes.5 Regarding these alleged surveillance activities on her part, Shortt merely testified, in effect, that in her capacity as Respondent's security supervisor at its Salem Avenue store 3 Complaint pars. 5(m)(i) as amended at the heanng (to include April) and 5(m)(ii). 'Seemingly testifying concerning the same or another such incident, Re- spondent's sportswear saleslady Theresa M. Clark dates it early in March. I Hensley testified additionally that on the following morning while at work, Department Manager Knox remarked to her that she had heard she had been handbilling at the back door on the previous evening and that if she had seen her "I would have kicked your butt," to which Hensley re- sponded that she had a right to her views. 242 RIKE'S, A DIV. OF FEDERATED DEPT. STORES (with Wysong and other subordinates), she is on the con- stant lookout for shoplifters, particularly in high pilferage sections of the store, for this purpose frequently or usually positioning herself in the cosmetics department near the "high shortage" ladies' and junior sportswear sections: that she is unable specifically to recall any occasion on which she rested on her elbow for an extended period of time concentrating her stare or attention on Harvey; and that it was her practice to intermittently leave and return to her perch in the cosmetics department. Concerning these alleged surveillance activities on the part of Shortt, while I credit the employees' testimony de- scribing them, I nevertheless am unable to regard them as violative of the Act. As Respondent's store supervisor of security, it was Shortt's responsibility to observe and see what was going on concerning shoplifting and other secu- rity matters and in that connection to resort to appropriate measures and techniques, including positioning herself at strategic vantage points, to combat store crime or impropri- ety. If, as here, in the course of the exercise of that respon- sibility, employees-here seemingly not even engaged in protected concerted activity in the store-came within the range of or fell under Shortt's roving eyes, I am unable to perceive any illegality about that under the Act. Nor do I regard Shortt's observation of the employees' open and un- concealed handbilling activities as violative of the Act, since those activities were carried on in the plain view of all. There was no element of "spying" or secret, illicit surveil- lance thereof on the part of Shortt. Nor was Shortt's note- taking of what was in her plain view to see, on Respon- dent's own premises or with immediate access thereto, and her presumed relaying of her observations to her employer in her capacity as its agent and supervisor, violative of the Act. Cf., e.g., Beaird-Poulan Division, Emerson Electric Company, 233 NLRB 736, 739-740 (1977); Tarrant Manu- facturing Company, 196 NLRB 794. 798 (1972); Schrementi Bros., Inc., 179 NLRB 853 (1969); Emerson Electric Com- pany, 177 NLRB 75, 87 (1969); The Deutsch Company, etc., 165 NLRB 140. 144 (1967). It is accordingly found that the complaint allegations concerning surveillance by Shortt in violation of the Act have not been sustained.6 B. Interrogation: February-April The complaint' alleges that Respondent, through various of its supervisors and agents,' engaged in coercive interro- gation of employees concerning their union views, sympa- thies, activities, and voting intentions. 1. Melinda Longenecker: Mid-February and March 29 (complaint pars. 5(e) and 5(g)) On this subject (complaint par. 5(e)), the testimony of Re- spondent's former saleslady for young men's clothing, Me- ' A further possible instance of alleged surveillance on the part of Shortt (complaint par. 5(m)(ii)), involving alleged interrogation of Respondent's for- mer saleslady Melinda Longenecker by Security Chief Larry Kroger, is dealt with under the subject of sec. B. "Interrogation," infra, B, I, fn. 9. See also fn. 40, infra. 7 Complaint pars. 5(e) (c), (bXi), (g), (nXi), and (nXii). I All persons identified herein as Respondent's supervisors and agents are admitted by the answer to be such. linda Longenecker-currently employed in internal security work for stores including Respondent's-is uncontradicted. Longenecker's testimony shows that while she was at work one afternoon in February, she was beckoned to the tele- phone by Respondent's Security Supervisor Billie Shortt.9 Respondent's Security Chief Larry Kroger-who, without explanation, was not called to testify-on the wire asked Longenecker what she had been talking about to her (and her fellow-employee Ryan's) worktime store visitor Fuchs, a union representative not employed at the store. Prevari- cating, Longenecker responded, "[A]bout an old white- haired lady." Although the incident is uncontradicted, I can see no illegality in it under the Act. As has been said, "Working time is for work" (Republic A viation Corporation v. N.L.R.B., 324 U.S. 793, 803, fn. 10 (1945), quoting from Peyton Packing Company, 49 NLRB 828, 843 (1943)). A storekeeper may not be faulted for noncoercively inquiring, as here, of an employee what business-store or personal- the employee is transacting during paid working time, in- cluding with a union organizer not employed in the store. Cf., e.g., Mason & Hanger-Silas Mason Co., Inc., 167 NLRB 894, 910,(1967), enfd. in relevant part 405 F.2d 1 (5th Cir. 1968): Sarkes Tarzian, Inc., 157 NLRB 1193, 1205 (1966), enfd. 374 F.2d 734 (7th Cir. 1967), cert. denied 389 U.S. 839 (1967); Threads-Incorporated, 124 NLRB 968, 976-977 (1959). There is no indication that anything further was made or came of the described incident, which I find not to have been violative of the Act under the circumstances de- scribed. Another alleged incident involving interrogation of Lon- genecker is set forth in the complaint (par. 5(g)). As to this, Longenecker testified that on March 29 she was ap- proached at work by her department manager, Marsha Moritz, who asked her how she was going to vote in the upcoming union election. Longenecker responded that she had not yet made up her mind. Flatly denying that she asked Longenecker how she intended to vote, Moritz' ver- sion of this incident is that she merely responded to an inquiry initiated by Longenecker to Moritz that Longe- necker was "interested in familiarizing herself with both sides," in order to make up her mind about the Union, and that Moritz merely answered Longenecker's questions. Moritz' version thus throws an entirely different cast upon the entire episode. However, upon comparative testimonial demeanor observations, I prefer and accept Longenecker's version. I found Longenecker to be an extremely impressive witness not prone to fictionalizing, exaggeration, or selec- tive recall. I was not similarly impressed by Moritz, who professed a somewhat selective memory. Furthermore, Longenecker, who is engaged in police-type work and who selected her words with care and did not deviate from her testimony, is no longer an employee of Respondent and attended under subpena, unlike Moritz, who is still in Re- spondent's employ and at least potentially an interested witness. In any event, on comparative testimonial demea- nor observations, as already indicated, I have no hesitancy in preferring the testimony of Longenecker. It is accord- ' See fn. 6, .rura. I do not regard Shortt's calling Longenecker to the telephone, or any immediately preceding observations of Longenecker by Shortt, under the circumstances described, as constituting surveillance or other action violative of the Act on the part of Shortt. 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly found that this incident of interrogation is established by a fair preponderance of substantial credible evidence upon the record as a whole. 2. Frieda Hensley: February 24 (complaint para. 5(c)) Respondent's cashier-clerk Frieda Hensley testified with great credibility that while in the office of Respondent's personnel administrator, Millie Griffin, on or about Febru- ary 25, concerning a possible vacation pay discrepancy,' ° Griffin questioned her about whether she had received a letter from the Union and why anybody would want to join a union. Hensley replied that she had gone to the union meeting to learn and judge for herself, and that "had you been there and seen the people opening up their hearts to those union people about their problems, it was almost like being in church." Griffin thereupon indicated that the Union was coming between the employees and the Com- pany, prompting the response from Hensley that the trou- ble was that the employees got nowhere by going to the Company directly and that this was one of the reasons the employees had sought out the Union. Griffin said she would not work there if the Union came in because of union graft, as at her husband's place of employment. This drew from Hensley the rejoinder that her own husband's working con- ditions had improved under a union. Griffin pressed Hens- ley as to why Hensley wanted to continue on with the Union "rather than come [to us] .... that's what [we are here] for." Calling attention to such matters as her lack of seniority after 19 years, working until I p.m. before Christ- mas, and cutbacks in vacations, Hensley defended her union adherence, describing it as "like going to church." Salem Mall Personnel Administrator Millie Griffin (and prior thereto its Director of Personnel Relations in its downtown store) throws an entirely different cast upon this episode. Conceding that Hensley was in her office to discuss an unremembered personal problem, after Hensley de- scribed the problem, she (Hensley)-according to Griffin- added, "This is why others are interested in a Union," drawing from Griffin the rejoinder that "I wish I knew what those things were so that I could help.... We could do it together and we didn't need someone else to help us do it," and a reference to her husband's problems in a union shop (succeeded by a counterreference by Hensley regarding her own husband). According to Griffin, she added, "Only if the [employees] would come to us and talk to us. That we couldn't do anything about problems if they didn't talk to us about them." Also according to Griffin, when she spoke of her husband's experiences with "dishonesty" under a union, Griffin could "not recall" (seemingly in possible con- trast to her earlier testimony, described above) whether there was any response by Hensley. Although Griffin con- cedes she did indeed ask Hensley "why would anyone want to have someone else .. referring to the Union . . help them with their problems when we could help them if we knew what they were," Griffin professes to be unable to "recall" Hensley's response. According to Griffin, Hensley did liken her attendance at a union meeting to attendance '0 To Hensley's inquiry as to why she had received only 35 hours instead of her 40-hour working week, Griffin explained that Hensley's sick time was deducted or prorated. at a "church service," but (still according to Griffin) Hens- ley indicated she was not interested in the Union but had gone merely to listen to others; and, in turn, Griffin listened to Hensley. After carefully comparing and weighing my testimonial demeanor observations of these two witnesses, I have grave difficulty in accepting Griffin's bland description of the epi- sode in question (to the extent of her imperfect or selective memory recall"), and after observing Hensley as she testi- fied, I simply cannot believe that Hensley-an extremely impressive witness, with religious convictions, who contin- ues in Respondent's employ since 1958, about 20 years' 2- brazenly fabricated her described version of the episode in question. Accordingly preferring and crediting Hensley's version, I find that this alleged incident of interrogation is established by a fair preponderance of substantial credible evidence upon the record as a whole. 3. James C. Gilroy: Last week of March (complaint para. 5(b)(ii)) Respondent's housekeeping maintenanceman James C. Gilroy, a union activist and member of the union organiz- ing committee, testified that around the end of March he was called into the office of Dresses and Coats Department Manager Margaret J. Ford, who, after reminding him of past discussions, asked him outright how he was going to vote in the upcoming union election. He replied that, just as in the presidential election, it was his own business, where- upon, persisting, Ford asked him to speak to his coworker Lydia Willingham with a view to changing her mind, add- ing that employees could gain advantages from manage- ment not available through the Union. At this, Gilroy re- marked that he hoped she had her head screwed on right, and he left. Respondent's Dresses and Coats Department Manager Ford displayed a rather eclectic recollection of this episode, which she concedes occurred but which she insists involved an uninvited visit to her office by Gilroy. Although Ford denies she reminded Gilroy of past discussions, questioned him concerning his voting intentions, asked him to inter- cede with Willingham, or indicated the possibility of advan- tages flowing from management, she admits that Gilroy spoke of the privacy of his voting intentions but she pro- fesses-quite unconvincingly, to my view-to be unable to recall the context in which this subject arose. First denying that Gilroy made any remark about her (Ford's) head being screwed on right, Ford then seemingly backtracked and tes- tified she merely could not "recall" that. I found Gilroy, who was not cross-examined by Respon- 1 Regarding Griffin's professed difficulties of recall, although she con- ceded on cross-examination that she had instructed supervisory employees to observe and report back to her on employees' handbilling activities, she professed to be unable to "recall" whether the handbilling activities of Hens- ley-open and notorious as they seemingly were-were observed by her or reported to her. I find this somewhat difficult to accept. 12 We have been instructed that currently employed witnesses, exposing themselves to employer displeasure through their adverse testimony and thus to potential risk of job reprisal, may merit an extra meed of credibility. Cf. Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961), enfd. as modified, 308 F.2d 89 (5th Cir. 1962); Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14, 16 (4th Cir. 1962). 244 RIKE'S, A DIV. OF FEDERATED DEPT. STORES dent, to be a highly credible witness whose testimony had the solid ring of truth. Ford, on the other hand, observed as she testified, impressed me as to a degree evasive, in addi- tion to having a professedly clouded recollective sensorium. Since, upon comparative testimonial demeanor observa- tions. I have no hesitancy in preferring and crediting Gil- roy's testimony, it is found that the described additional instance of interrogation has been established by a fair pre- ponderance of substantial credible evidence upon the rec- ord as a whole. 4. Francine Harvey: March 31 (complaint par. 5(n)(i)) Respondent's cosmetics saleslady Francine Harvey testi- fied credibly and without contradiction that on March 31 Sunday Manager Fred Walker approached her at work and, after saying he wished to talk to her, indicated he had been instructed by the Company to "find out what the problems were and why [the employees] wanted a union," explaining that "N.C.R. [National Cash Register] . . . had moved out of town and that hundreds of people were out of jobs ... because the union came in and lots of people [are] out of jobs.... [I can't] grasp the fact that anybody [wants] a union." At this point Harvey indicated she did not wish to be drawn into this discussion, and Walker left. Since without explanation Walker was not produced to controvert this testimony by Hanrvey, which I credit, I find the incident as testified to by Harvey established. Although Harvey declined to become enmeshed in the discussion on unionization and her views which Walker instigated, the incident in question may be and is nevertheless viewed as coercive, restraintful, and violative of the Act. Contrary to Respondent's apparent argument, it is unessential to viola- tion of the Act that an employee be stung to respond affir- matively to attempted employer interrogation. Such em- ployer activity may be coercive, restraintful, and in interference with employees' rights protected under the Act even if the employee at whom it is leveled fails to respond affirmatively. Moreover, if, as in this case, the employee does respond affirmatively to the extent of specifically refus- ing to be drawn into the discussion provoked by the Em- ployer, that in itself may serve as a clue to the Employer that it is because the employee is harboring prounion senti- ments that he is not responding with a resounding dis- avowal of such sentiments, else why should he not un- equivocally deny them when asked? Under all of the undisputed circumstances, it is found that the interrogation episode in question stands estab- lished. 5. Jane Rousseau: April 5 (complaint par. 5(n)(ii)) A final alleged instance of interrogation involves Respon- dent's plant saleslady Jane Rousseau, who testified-also without contradiction-that on or about April 5 she was approached at work by Respondent's Sunday manager, Fred Walker, who put the direct question to her. "[H]ow [do you feel] about the 3rd party ... the union." Notwith- standing Rousseau's response that she "didn't think we were supposed to talk about [it] on store time," Walker continued in the same vein, adding something to the effect that he liked to work for Respondent and did not under- stand why the employees would want the Union. As in the instance of Harvey, supra, the testimony of Rousseau stands wholly uncontradicted, and, for the same reasons as in the Harvey instance, I find the interrogation incident involving Rousseau established. C. Disparate enforcement of no-solicitation rule. February and April 7 (complaint Par. 5(o)) It is alleged' that during February and on or about April 7 (a week before the union representation election) Respon- dent enforced its otherwise valid no-solicitation rule dis- criminatorily against prounion employees while permitting antiunion employees to speak and campaign against the Union. It is agreed that at all material times Respondent has had in effect the following no-solicitation rule: 1. Any solicitation by any persons who are not em- ployed by Rike's is prohibited at all times throughout all Rike's locations. 2. It is the policy of the company that solicitation by our associates is prohibited on all selling floors during all hours when the store is open to the public. Solicita- tion by associates is also prohibited in all sales support- ing areas during an employee actual working sales sup- porting areas during an employee actual working time, i.e., actual 'productive time,' not including lunch time, paid break, etc. 3. This rule applies at all Rike's locations and in- cludes solicitation for lotteries, raffles, charitable or policital [sic] organizations, labor organizations, frater- nal organizations, and the like. The only exceptions to this policy are the annual United Fund Campaign and the semi-annual Group Blood Drive, both of which are total company projects. 4. This policy will be strictly enforced at all loca- tions. Violations should be reported to the Personnel Department immediately. Violators will be subject to appropriate discipline. The aggregate, mutually corroborative, credited testi- mony of General Counsel witnesses Harvey, Longenecker, Pullen, Rousseau, Booher, Weist, Clark, and Eastridge-all Respondent's employees now or at the time-fairly estab- lishes that although Respondent enforced this no-solicita- tion rule with determination and rigor against union advo- cates, it at least tolerated and condoned, if it did not sanction and authorize, its breach by nonsupervisory (as well as supervisory) personnel opposed to the Union. In illustration of Respondent's condonation, if not sup- port, of antiunion solicitational activities by its staff, cred- ited testimony of employees Harvey and Rousseau concern- ing Sunday Manager Walker's solicitous antiunion advances upon them will be recalled. Additionally, about a week before the April 14 Board-conducted election, accord- ing to uncontroverted testimony of Respondent's former shipping-receiving-mailing and relief security clerk Julia Anne Booher, whom I credit, Booher was approached 1 Complaint par. 5(0). 245 DI)4l.ISIONS OF NA IIONAI. LABOR RELATIONS BOARD while at working by Mary Riley, a rank-and-file pay clerk and secretarial employee (who later served as the company observer at the Board-conducted election). Riley solicited Booher to sign a paper about "Rike's not needing a union." Booher declined. Later in the day, while Booher was dis- tributing mail in the office. Riley again on working time renewed her request to Booher that the latter sign the docu- ment. When Booher again refused, Riley remarked that she (Riley) was worried about Booher's job, but that if Booher changed her mind about signing the antiunion document it would be available in the office of Shoe Department Man- ager Margaret Greene fir Booher's signature. When Boo- her later, out of curiosity, checked in Department Manager Greene's office, she did indeed see that document there, to the effect that the signers did not desire a Union. Since, without explanation, neither Riley nor Greene was called to controvert the foregoing, the described testimony of Booher stands uncontradicted and is credited. In March or April, again shortly prior to the election, as established by the mutually corroborative credited testi- mony of Respondent's employees Eastridge, Pullen, Longe- necker, and Rousseau. at the employees' regular Saturday morning assemblage, shoe salesman Rick Couture who was not called to controvert this in any way was permit- ted, in the presence of and without interference from or disavowal then or thereafter by any of Respondent's super- visory personnel, including Store Manager Gary E. Molin, to take the podium (allegedly set up for the first time) and from prepared notes to make an antiunion speech, pro- claiming that "the 3rd party or the union was upsetting our store and that . . . if the people in the store didn't like the way the store was run, they should get the hell out." Var- ious department managers applauded these remarks. When Store Manager Molin then went to the podium. he stated that although he did not know the speech was going to be made he nevertheless agreed "we did not need the 3rd party [Union]." In no way did Molin or any other of the numer- ous store supervisors there seek to prevent Couture from talking, interrupt him, or in any way disavow what he said. In his testimony concerning this episode, Molin acknowl- edged that in his office prior to the assemblage in question, although he had been informed by his high-ranking sub- ordinate, Divisional Group Manager Spano, that Spano had learned from Couture's supervisor, Shoe Department Manager Margaret Greene, that Couture was going "to give the speech today," Molin did nothing to stop Couture. Molin attempted to justify this at the hearing- -in contra- distinction to his pretrial affidavit-by explaining that he had done nothing to stop Couture's intended speech (which he apparently had also been alerted about by Spano during the previous week) because it was only "hearsay" and that, besides, it would have been "rude" as well as "poor judg- ment" for him to interrupt Couture. In dramatic contrast to Respondent's toleration, it not sanctioning of, acquiescence in, and approbation of; these antiunion solicitations of its employees in relaxation or vio- lation of its professed no-solicitation rule is its rigorous en- forcement of that rule against its union-adherent employ- ees. Thus, subsequent to the described Couture speech incident and about a week prior to the April 14 election as established by the mutually corroborative. credited testi- mony of General Counsel witnesses Harvey, Weist, and ('lark- Respondent's cosmetics saleslady and union pro- tagonist Harvey was, during her breaktime", carrying a let- ter to Budget Men's Department employees Kennedy and Wells for their signature, requesting a talk by a union repre- sentative. Harvey was accosted by Department Manager Philip Parker, who demanded to know what she had with her that was "disturbing [my] people." When Harvey told him it was none of his business, Parker refused to permit her to return to work before she showed him the document, chasing her back and forth around a clothes rack and roughly grabbing her by the arm as well as attempting to seize her purse (into which she had placed the paper). When Parker exclaimed that that was "strike three and . .. [you] evidently [have] something to hide," Harvey showed him the document (G.C. Exh. 2), which then bore 18 employee signatures. After Parker read it, he told Harvey she should not be doing this "on store time." She pointed out to Parker that antiunion personnel were being permitted to do so. The document in question, with many additional signa- tures, was subsequently delivered to Store Manager Molin. According to employee Weist, who had typed the docu- ment, it was provoked by Respondent's having permitted Couture earlier to make the aforedescribed antiunion speech to employees, and the prounion employees merely wanted equal treatment. Molin's response, however, was that he would not "let the store be a forum for the union" and that "there [will] be no invitation sent to the union." The nature and quality of Respondent's application and entorcement of its no-solicitation rule is thus revealed as rather startlingly different, depending upon to whom it was applied-in favor of whom it was relaxed, and against whom it was enforced. As here shown and established be- yond peradventure of doubt, Respondent relaxed or failed to apply that rule against antiunion advocates, while it ap- plied the rule with strict severity and rigor against union advocates. General Counsel does not contend that the rule itself is violative of the Act but merely that it was dispa- rately and discriminatorily applied against union-advocat- ing employees in violation of the Act. Cf, e.g., Rockwell International C'orporation, 226 NLRB 870, 875-876 (1976); The Contract Knitter, Inc., 220 NLRB 558, 560 (1975); Ma- son & Hanger-Silas Mason Co., Inc., 167 NLRB 894 (1967), enfd. as modified 405 F.2d 1 (5th Cir. 1968). As shown, disparate and discriminatory application of Respondent's own rule in relation to different rank-and-file employees has been amply demonstrated by preponderating credible evi- dence, much of it uncontradicted. It is accordingly found that these allegations of the complaint have been estab- lished.' 5 14 While Harvey was on breaktime, the two employees (Kennedy and Wells) in the Budget Men's Department apparently were not, although they were not waiting on customers but merely hanging pants on a rack. 1 This is not to suggest that an employer is under obligation to invite or permit a union to utilize or have access to the employer's premises for the purpose of addressing employee assemblages there (particularly in absence of proof of nonexistence of reasonable alternative modes of reaching the employees): or that an employer may not prohibit union solicitation during the worktime of solicitor or solicitee; or that an employer may not itself conduct employee assemblages to present its views. without thereby creating an obligation to permit a union to do likewise. Cf.. e.g., Republic Aviation Corporation v.,V LR. B., 324 U.S. 793 (1945). It means only that, under the circumstances here shown, Respondent was required to apply its own no- 246 RIKE'S. A DIV. OF FEDERATED )EPT. SORES D. Threats of Loss of Economic Benefits and of 'Latof/: February-April (Complaint pars. 5(1)(i). (h)(i) and (ii), (a), (j)(i), ()(ii). (i)(ii), (f), (k), and (h)(iii)) 1. Henry Yospur: February (Complaint par. 5(1)(i)) Respondent's stockman Henry Yospur testified that while at lunch in the employees' lounge in February, with his supervisor, Shipping and Receiving head Jerry Severt the latter remarked to him, "I'd hate for the union to come in and put you out on the breadlines ... because [you don't] have that much seniority." While Severt (no longer in Re- spondent's employ) denies or is unable to recall any such specific conversation and I credit Yospur, I do not view this particular remark by Severt as being other than in the cate- gory of a random expression of personal opinion or predic- tive hyperbole, readily evaluatable by Yospur for what it was as such and not rising to the level of a threat imputable to the employer as a violation of the Act. I therefore find this allegation of the complaint (Par. 5(1)(i)). to the effect that Yospur was told in violation of the Act that he "could be laid off if he chose to support the Union," not sustained. 2. Francine Harvey, Gregory Brown, et al.: February 26 (Complaint pars. 5(h)(i) & (ii)) The complaint alleges that on or about February 26 Store Manager Gary E. Molin told an assemblage of em- ployees that they would lose their employee discounts and other benefits and would be laid off in the event of union- ization. In support of this allegation, the composite credited testi- mony of employees Francine Harvey and Melinda Longe- necker establishes'" that at a regular Saturday morning em- ployees' assemblage on the date in question, Molin. while consulting a paper "occasionally" only, stated that "There [is] an outside 3rd party knocking at the door which we didn't need and the outside 3rd party was the union and that if the union came into the store, that the hours would be cut, extras would be laid off; we would lose our benefits. our discount; no more store picnics. Kings Island days that we had.... [about benefits that would be taken away, he] mentioned our profit sharing.... He said that we would lose our profit sharing." This was said to an assemblage of 75 to 100 employees and supervisors. apparently most em- distribution rules to its own rank-and-file employees in an evenhanded. non- discnminatory manner. in contrast to the situation here, where. notwith- standing rules under which essentially all employee solicitation is proscribed. antiunion solicitation by some rank-and-file employees was sanctioned while at the same time prounion solicitation by other such employees was not tolerated. Cf. Walton Manufacturing Company, 126 NI.RB 697, 698 (1960). enfd. 289 F.2d 177 (5th Cir. 1961); The Wm. H Block Companv. 150 NLRB 341, 343, fn. 6 (1964): State Chemical Compans, 166 NLRB 455 (1967): The Sardis Luggage Company, 170 NLRB 1649, 1654-55 1968). J6 Although Molin testified that he did no more than read from a "Fact Sheet" (Resp. Exh. 8a) without departing from its wording, I found him to be a far less than satisfactory witness, at times given to evasion and even seem- ing departure from or equivocation concerning his pretrial affidavit. as well as to implausible and unpersuasivepostfacto rationalizations (e.g . his unper suasive "explanations" for not stopping or interrupting employee ('outure's antiunion speech, supra), and accordingly prefer and credit the employees' described testimony indicating that as is not unusual in cases of this na- ture-the "reader" departed from, added to, or embellished the precise wording of the text before him. Cf., e.g.. Georgetown Dress (orpraitin. 201 NLRB 102. 113 114 (1973). ployees (including Longenecker) being part-timers or "ex- tras." The statements, aimed directly at all employees' pocketbooks and beamed largely at its many part-timers or "extras." were clearly coercive and in that category of threats explicitly excepted from the Section 8(c) statutory freedom of expression provision. As such, they ran afoul of the Act and were plainly unlawful. Cf., e.g.. N.L.R.B. v. Gissel Packing Co.. Itc(., 395 U.S. 575, 617 620 (1969); N.I..R.B. v. Echange Parts Co., 375 U.S. 405. 409 410 (1964); Henry 1. Siegel (o.. Inc. v. N.L.R.B., 417 F.2d 1206, 1208, 1214 (6th Cir. 1969), cert. denied 398 U.S. 959 (1970); N.L.R.B. v. Kings/ord, 313 F.2d 826, 832, and cases cited (6th ('ir. 1963); .I..R.B %. ederbush Co., Inc., 121 F.2d 954, 957 (2d Cir. 1941 (Components, Inc., 197 NLRB 663 (1972); Wigvsnl Mills, Inc., 149 NL.RB 1601, 1611, 1618 (1964), enfd. 351 F.2d 591 (7th Cir. 1965). 1 accordingly find these allegations of the complaint sustained by a fair preponderance of substantial credible evidence upon the record as a whole. 3. Gregory Brown: February 28 (complaint par. 5(i)i)) The complaint alleges that on or about February 28, '7 Respondent's Department Manager (Areas No. II, 31, and 32) Patrick A. O'Connell told employees that Respondent "would take away existing benefits if the Union was voted in." Testif'ing in support of this allegation, Respondent's sporting goods employee Gregory A. Brown stated that at his departmental meeting on the date in question. Depart- ment Manager O'(Connell appearing to read from a paper, stated that Rike's employees had better wages than those at unionized stores and that "there would be layoffs if the union came in because the Company couldn't afford to pay the higher wages and extra benefits." O'Connell denies say- ing this. While I was well impressed by the testimonial de- meanor of Brown. I was also favorably impressed by that of O'Connell. and, in the face of O'Connell's flat denial, would have no rationally persuasive basis, in regard to this par- ticular incident, fr preferring Brown's assertion as clearly, substantially, or airl preponderating over O'Connell's de- nial. I accordingly find that General Counsel has failed to sustain the burden of proof w hich is his in this regard, and grant Respondent's motion to dismiss this allegation of the complaint. (Cf. (Consolided Edison Co. v. N.L.R.B., 305 U.S. 197. 230 (1938): cf. Beaird-Poulan Division, Emerson Electric C(., 233 NI.RB 736 (1977): AAA Lapco. Inc., 197 NLRB 274 (1972); Blue Flash Express, Inc., 109 NLRB 591. 592 (1954) 4. Francine lfarve: March I (complaint par. 5(a)) It is further alleged that on or about March I Respon- dent's Cosmetics and Fine Jewelry Department Manager Vickie S. Eib threatened employees with loss of existing benefits in the event of unionization. In support of this, Respondent's cosmetics saleslady Francine Harve) testified that at her departmental meeting on March 1. her department manager Vickie Eib. ad- 'D I)ate as amended a t the hearing. 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dressed the department employees, extemporizing with or from a paper in her hand, telling the assembled employees that employees at a local discount store (Goldman's) were not receiving the pay the Union had "promised," that union dues were the only moneys a union could promise and these would go for union officials' "trips to Hawaii," that under a union employees could no longer go to the department head,' that employee grievances could take a year to re- solve, that under a union employees would "lose all of [your] rights as an individual," that "[your] hours would be cut and that the union couldn't protect you from being laid off," and that "everything would be wiped out . . . [you] would have to start from zero." While Eib denies making at least some of these state- ments, her testimony as Respondent's witness indicates that she did indeed extemporize, utilizing the document or docu- ments ("Fact Sheet[s]") before her merely as a guide, par- tially, or only "basically" (Eib's expression), while "ex- pounding on the facts" (also Eib's expression), and that she did indeed range therefrom while addressing her employ- ees'9 (26 or so) on paid company time, sometimes during customer business hours, from 4 to 8 times per week. For this and other reasons based upon testimonial demeanor observations20 and her demonstrated zealous promanage- ment bias, I received an adverse impression of her credibil- ity, and I much prefer the testimonial tone and caliber of Harvey. Accordingly crediting Harvey's described testi- mony over that of Eib, I find the complaint allegations in question established by a fair preponderance of substantial credible evidence upon the record as a whole. 5. Lois Weist: March 7 (complaint par. 5(j)(i)) The complaint speaks of another instance of economic threat, this one on March 7 by Respondent's Budget Men's, Domestics, Children's, and Boy's Department Manager Philip R. Parker. In support of this, Respondent's budget draperies lead saleslady Lois Weist, in its employ for over 20 years, testi- fied that at a departmental assemblage of some 10 to 12 employees on March 7 Department Manager Parker, after making some allegedly inaccurate, misleading, or critical antiunion statements, told the assembled employees that in the event of unionization the store would "have to take away something like [your] store discount, employee dis- count. [T]he newest people, the extras, would be laid off because if Rike's gave something, they would have to take away something and [you] could start out with zero.... IS This constitutes a misstatement of the law, there being an express statu- tory provision to the contrary in Sec. 9(a) of the Act. Cf. Henry 1. Siegel Co., Inc v. N.L.R.B., 417 F.2d 1206, 1215 (6th Cir. 1969), cert. denied 398 U.S. 959 (1970); N L.R.B. v. Graber Manufacturing Company, 382 F.2d 990. 991 (7th Cir. 1967); Dixisteel Buildings, Inc., 186 NLRB 393, 395-396, fn. 6 (1970), enfd. 445 F.2d 1260 (8th Cir. 1971). At the hearing, Eib attempted unpersuasively, during cross-examination, to alter, water down, or equivo- cate concerning her pretrial sworn statement to the same effect, impairing any favorable assessment of her credibility. 19 Cf. fn. 16, supra, and case cited. Eib conceded her average meetings lasted 15 to 30 minutes, of which only 2 to 3 involved reading the "Fact Sheet." Among other things, she testified that she is certain that she told employees that "if the Union came in and we had a closed shop ... everyone would be forced to join the Union." But cf. the Act 17 and 8(aX3). On cross- examination she denied knowing the meaning of "checkoff." ° See, e.g., fn. 18, final sentence, supra. Another thing he said was that if the union got in and ... if we were written up a couple of times for something or we were late, we could be fired. He also said that we could lose our profit sharing.... He said that we'd have to pay union dues, regardless of the number of hours we worked and we would, if the union got in, we would have to join or or [sic] quit." While Parker's version of this episode is at odds with that of Weist, Parker's version is interlaced with professed recol- lective lapses and alleged inabilities to "recall"; and, al- though he no longer works for Respondent, Respondent is now one of his customers in his current capacity as a cos- metics salesman, so that he may be regarded as having a potential interest or bias favoring Respondent. Further- more, while poorly impressed with Parker's testimonial per- formance based upon my demeanor observations and his seeming equivocations and professed patchy memory, I was, by contrast, extremely favorably impressed by Weist, who demonstrated herself to be a highly persuasive witness. Under these circumstances, I credit Weist in preference to Parker, whose statements not only presented to the employ- ees an economically doleful prospect in the event of union- ization, threatening to their jobs and livelihood, but without demonstrated basis he also misleadingly portrayed the Union as the seeming antagonist rather than the protago- nist of the employees' interests. At any rate, his threats to the employees' jobs and their existing economic benefits in the event of unionization were beyond the pale of permissi- ble fair comment, since they directly linked unionization with consequent detriment to employees' existing economic status and even with loss of their jobs. Crediting Weist, as indicated, it is found that this allega- tion of the complaint is established by a fair preponderance of substantial credible evidence upon the record as a whole. 6. Henry Yospur: March (complaint par. 5(l)(ii)) Respondent's current Assistant Stock Supervisor Henry Yospur, handling receipt and distribution of its merchan- dise-a rank-and-file stockman at the time of the events to be described-is said to have been involved in still another instance of unlawful economic threat during the interreg- num while awaiting the Board-conducted April election. According to Yospur, a most impressive, uncross-exam- ined witness who, because of his intervening promotion, testified at potential risk to his improved status, if not his job,2' swore that while on a company delivery truck with his superior, Shipping and Receiving Supervisor Jerry Severt, in March, Severt informed him that the Company had asked him (Severt) to make out a scheduling for use in case of unionization and that in that contingency Yospur would have "zero hours" because of "[not] enough seniority."22 Although Severt, a somewhat unprepossessing witness who is no longer employed by Respondent but whose 21 See fn. 12, supra, and cases cited. 22 Although it may well be that this remark, in March, throws a different coloration upon Severt's arguably comparable observation to Yospur in Feb- ruary, which I have already found, for reasons previously indicated, not to have been violative of the Act, I tend to regard the earlier finding (supra, sec. DI) as one that should nevertheless stand, since I have some difficulty in relating the later remark back to the earlier one to add coloration to the earlier remark for interpretative purposes. 248 RIKE'S, A DIV. OF FEDERATED DEPT. STORES mother still is, claims that in the delivery truck it was Yos- pur who first expressed concern over how many hours he would be working under an "available hours clause," Severt indicates that-for some reason unpersuasive to me-he (Severt) happened to have with him a sample scheduling, which he thereupon displayed to Yospur, and which he (Severt) thereafter "probably threw ... away." On cross- examination, Severt incredibly denied that he had ever made up, at management's request, the scheduling he con- cededly had on hand to show Yospur, claiming that man- agement had shown him "a contract" containing an "avail- able hours" provision, without, however, indicating that it or any counterpart would necessarily be contained in any collective agreement which might be negotiated with the Union here; and Severt would say no more-repeatedly- than "I don't believe so" or that he could not "recall" when asked whether it was he (Severt) who brought up with Yos- pur the "available hours" provision. Finally, Severt on cross-examination acknowledged, seemingly watering down his earlier denial on direct examination, that he merely does not "believe" he told Yospur that he would get "zero hours" under the indicated unionization-assumed schedul- ing. Clearly preferring and crediting the testimony of Yospur over that of Severt, upon the bases described as well as on testimonial demeanor comparisons, I find the complaint al- legation in question, constituting an economic threat to Yospur's job in the event of unionization, established by a fair preponderance of substantial credible evidence upon the record as a whole. 7. Gregory Brown: March (complaint par. 5(i)(ii)) An additional episode of alleged economic threat centers around more alleged layoff remarks, tied to unionization, by Department Manager Patrick A. O'Connell to sporting goods salesman Gregory A. Brown in March.2 In support of this allegation, Sporting Goods employee Brown testified that on March 31, at his departmental meeting, Department Manager O'Connell, in the context of describing consequences of unionization, after stating that "61% of the regulars at Rike's Salem have been there for 5 years or more and that 35 had been there since the store opened" and that "from that point on" names of employees who worked for only "20 hours a week for X amount of weeks" (i.e., part-time employees) "would be spit out of the computer so that they would be eligible to become a regu- lar" added that the employees "have it better or they had more now than what the union could get them," since "by Federal Law for negotiations, we would start at zero; we would have nothing... the only thing union security would be good for would be for layoffs.... We would have abso- lutely nothing and we would have to try to get what we could ... we would start from scratch and lose everything, including our discount, vacations, etc.... some people be- lieve that they can actually keep what they have already and if that is true, they'd be living in Utopia." Although Department Manager O'Connell, testifying as Respondent's witness, first substantially disputed the fore- going version, he later appeared to retreat from some of his : Date as amended at the hearing. earlier testimony by stating merely that "I do not recall it." Although he at first testified he read his employer's "Fact Sheets" (Resp. Exhs. 8a h) to his subordinates, he conceded that he added as a "fair thing to tell the employees," even though not contained in any of the "Fact Sheets," that "while negotiating the contract it starts at base zero and the benefits are added," but he claims he reassured the employ- ees that "It]he benefits you now have will continue until the contract is negotiated." O'Connell conceded that although he informed the employees that "everything [would be] up for negotiation," he nevertheless at the same time impressed upon them as "a flat fact" certain "standard" features which he "assume[d]" would be in any contract-adverse, it is noted, to the employees, and seemingly constituting an unwarranted "assumption" calculated to sour the employ- ees on the Union, such as an assumed provision concerning seniority and jobs-professing to be unable to "remember" whether he informed the employees that these provisions were likewise "up for negotiation." O'Connell concedes that in all of his 30-odd meetings with subordinates on paid company time while awaiting the holding of the Board elec- tion, he did not merely read or read from the Company's "Fact Sheets" but also extemporized. O'Connell's testimony concerning these and related subjects (e.g., the Couture an- tiunion speech, supra) is to a degree characterized by pro- fessed recollective lapses. For this reason, in these aspects of the case, and after comparing testimonial demeanor as closely observed, to the extent of inconsistency I prefer and credit the testimony of Brown and find that O'Connell did indeed make the remarks here attributed to him, constitut- ing substantially misleading as well as economically threat- ening statements not privileged under the Act and accord- ingly unlawful, considering their total content, tone, and context. I do not credit O'Connell's testimony that he reas- sured the employees that their existing benefits would be continued while at the same time warning them that-ac- cording to his own version-"while negotiating the contract it starts at base zero and the benefits are added." Although an employer may of course fairly inform his employees that negotiations include the levels of salaries and benefits,2 ' the expressions here utilized, as found, in their totality and con- text and particularly in the framework of the surrounding circumstantial congeries within which they must be as- sessed, were not merely significantly misleading but also constituted potent economic threats reasonably calculated to induce trepidation and fear in the employees that contin- ued adherence to the union and unionization would bring serious economic detriment and even job insecurity and loss-utterances plainly, in my view, unlawful under the Act.2 8. Jane Rousseau. March (complaint par. 5(f)) Still another instance of alleged economic threat, along the same lines, involves Respondent's Small Wares Depart- 24 Cf., eg., Computer Peripherals, Inc., 215 NLRB 293, 294 (1974). 21 Cf., e.g., ,.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964): Plasironics, Inc., 233 NLRB 155 (1977); Coach and Equipment Sales Corp., 228 NLRB 440(1977); Peterson Builders, Inc., 215 NLRB 161 (1974); Saun- ders Leasing Svsrem, Inc., 204 NLRB 448, 454 455 (19731., enfd. in relevant part 497 F.2d 453 (th Cir. 1974). 249 DFU( ISIONS OF NAIIONAL LABOR RELATIONS BOARD ment Manager Mary Ellen Light and her subordinate, plant saleslady Jane Rousseau, also in March while awaiting the April oard-conducted election. According to the testimony of Rousseau. Department Manager l.ight told three of her subordinates on the occa- sion in question that "i [the union] did come in, we would start from n thing . . we would start with seniority if the union came in. which meant that regulars would get the most hours and that ... that wouldn't leave any hours left. . . .The regulars . . . would get the hours and that there probably wouldn't be any left for the extras." Light also stated that "she couldn't understand why we would want to pay nine dollars a month for union dues when she felt that she saved three hundred dollars a year on her discount."" l.ight's related testimony is merely to the effect that she is unable to "recall" making the statements attributed to her, while at the same time conceding that she did not restrict her remarks to her subordinates to her employer's "Fact Sheets" hut that she also extemporized, and that whatever she might have said on these matters was "reference[d" by her to what she assumed would occur if the store became unionized, based at least in part upon her construction of the contents of and her assumptions as to the applicability of three collective agreements elsewhere, furnished to her by management. While generally well impressed by Light. in view of her confessed memorial lacunae in substantial matters and areas, and her vagueness in others, adding up to an unreli- ably eclectic recall faculty. I prefer and credit the described testimony of Rousseau, which was clearly and persuasively delivered and in part undisputed by Light. Accordingly, it is found that this allegation of the complaint is established. 9. Lisa McKay: Last week of March (complaint par. 5(k)) Yet another episode of alleged economic threat along the same lines involves Respondent's Men's Department Man- ager Michael G. Rothberg and his subordinate, saleslady lisa McKay. Paralleling testimony of other employees already re- U. un i:i McK , testificd that on M rch 28 she and 4 other n's )epartmnent emploCyees wi r assembled and ad- .,cssed by Dcpartment Manager Rothberg, who had a pa- pet in h is hand but also extetnporized stating that, in addi- tion to pcnalties to which employees could be subjected at lie ha nds of the Union, in the event of unionization the e'nployees "would have absolutely nothing: that we would :ltrt frolt I ro; that we would lose our 20%4 discount: that the extras would be the first to go.... " VWhile protessing inability to "recall" various statements li itcd to hinm by McKay, Rothberg no longer in Re- p. Qindent'. cimploy disputed other portions of her testi- monny, while to a degree also ippearing to depart from the contents of a pretrial affidavit furnished to a Board agent. Ile also professed - rather incredibly, to my mind an al- :* It would seem that this statement may fairly be construed to imply. and that it as therefore calculated to suggest, to the employees hat unionia- tion could ell cost them their existing store-purchase discounts. hus con- ,irliing the statement, hich is undisputed by ight, it clearly constituted an x. 'ohmic threat .isthin the Ac's proscription. (. e.g., Daris Wholesale Co.. i,t, 165 NLRB 271 (1967) Buda Sychoelikopf Products, Inc.. 164 NI.RB (th) ( l17). most total lack of recall of the unusual and seemingly memorable episode, at which he was present, involving the Couture antiunion speech, recounted above. While I was in certain respects not unfavorably im- pressed by Rothberg, the choice between the weight of the testimony of McKay-a highly impressive, forthright, and uncross-examined witness and the patchy recollections of Rothberg is clear, in the framework of their comparative testimonial demeanor within the context of the case as a whole. I credit McKay, and accordingly find this additional instance of economic threat established. 10. Frieda Hensley, et al: April 9 1977 (complaint par. 5(h) (iii)) A 10th and final episode of alleged economic threat, akin to those already considered, involves a speech by Store Manager Gary E. Molin to assembled employees on April 9. 5 days prior to the Board-conducted election, at which Molin is alleged to have threatened employees with loss of existing benefits and layoff of "extras" if the Union suc- ceeded in its organizational campaign. No proof was submitted concerning any episode on April 9 of the nature described. In his post-trial brief (p.l 1), Gen- eral Counsel concedes that this allegation is misdated and subsumed within Complaint paragraphs 5(h)(i) and (ii) dealing with February 26. The latter paragraphs have al- ready been considered and disposed of supra, section D,2, and paragraph 5(h)(iii) may therefore be regarded as sur- plusage. In view of the foregoing, I find that the violation thus alleged to have occurred on April 9 has not been estab- lished, and Respondent's motion to dismiss paragraph 5(h)(iii) of the complaint should be granted. E. Offer To Adjust Employee Grievances in Case of Emplovees' Abandonment of Union Support: March-April (complaint pars. 5(b)(i) and 5(d)) The complaint further alleges two instances of offers by Respondent to adjust employee grievances if employees would abandon the Union or dissuade other employees from voting for the Union. I. James C. Gilroy: l.ast week of March (complaint par. 5(b)(i)) According to the complaint, during the last week of March, Respondent's Dresses and Coats Department Man- ager Margaret J. Ford offered to adjust employee griev- ances if employees would abandon their support of the Union. If true, this would be violative of the Act. Cf. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964): N.L.R.B. v. The Brolqhill Company, 514 F.2d 655, 657 (8th Cir. 1975); N.L.R.B. v. Crown Can Co., 138 F.2d 263, 267 (8th Cir. 1943), cert. denied 321 U.S. 769 (1944). This alleged episode involves Respondent's housekeeping or maintenance employee James C. Gilroy, about whose credibility I have already commented favorably. According to Gilroy, around the end of March, in the course of his conversation with Department Manager Ford, which has 250 RIKE'S, A DIV. OF FEDERATED DEPT. STORES already been described (supra, sec. B,3). Ford "told me that the housekeeping group can get many benefits from the management if we went about it in the right way ... [and] that the union cannot give you certain advantages that management can.... AlII you have] to do [is] get yourself together and know what you want[edl to do and present it to them...." Gilroy's testimony was not cross-examined. Concerning the foregoing. Ford professed to be able to testify only that, although she did "recall something of a conversation" with Gilroy in her office around the time in question, "I really don't remember the whole conversation" and, pressed further, that she allegedly had an extremely shallow recollection of the conversation. although later she denied telling Gilroy that employees could gain things from management without the Union. Considering Ford's concededly defective recollective powers and my own comparisons of testimonial demeanor of Ford in contrast to Gilroy, I credit the described testi- mony of Gilroy and find the complaint allegation in ques- tion established by a fair preponderance of substantial credible evidence upon the record as a whole. 2. Frieda Hensley: Late March Early April (complaint par. 5(d)) A second alleged instance of the same variety revolves around Respondent's Operating Superintendent John A. Johnson and its now cashier-clerk Frieda Hensley. According to Hensley, around April 1-2 weeks before the Board-conducted election while she was at work straightening out shirts, Operating Superintendent Johnson approached and asked her if she was happy. She answered that she would be in about 2 weeks, after the employees had their union vote.2 Johnson asked her. "Why do you want a union?" She informed him that although she had worked for Respondent for 19 years she still had no seniority, usu- ally worked 2 nights a week, and had had her vacation allowance reduced from 40 to 35 hours, and that on her "review" some objectionable notation (apparently errone- ous or offensive to her) continued to be carried thereon. She reminded Johnson that he was new at the store, and told him he did not know what had been going on there for years. Johnson assured her that the objectionable notation would be removed from her record and her night hours reduced; both of these promises were kept. When Johnson said he would "make everything all right." Hensley re- sponded that it was "too late . . . the horse is out of the barn]," to which Johnson seemingly implied there could be a new or "another horse." Johnson also added that "if you will work with me and talk to your coworkers about the union, I promise you things will be honey." After a lengthy appeal along these lines, Hensley declined to accept John- son's invitation or to be the bearer of these tidings. Johnson's version of the foregoing is, essentially, that it was Hensley who really opened up the conversation and that, although he does recall Hensley's mention of a "horse being out of the barn," he scrupulously avoided all discus- sion with her on these subjects and in no way asked or 27 Hensley. an early union card-signer. had been openly active in union handbilling. suggested to her that she work with him or carry any kind of message such as described above to her coworkers. Since I was extremely favorably impressed with the testi- monial demeanor of Hensley, as she testified openly and with evident sincerity, but not similarly impressed with Johnson's demeanor as he testified concerning the episode in question (which, even according to his recollection. lasted 20 minutes, it being further noted that in his pretrial affidavit Johnson failed to mention the conversation -his explanation for this, at the hearing. being that he did not consider it to be "relev ant' and that he was not "asked"). as well as somewhat equivocatingl and evasively concerning other matters. I credit Hensley's version and accordingl, find the complaint allegation in question established hb a fair preponderance of substantial credible evidence upon the record as a whole. F. (9f er o(' Prooiitiol o Fimpl Ovee if EmpIree W 3mld Speak Out Agamist. Union: Ap.ril (ct'niplaiw par 5(jpii}) The complaint additionally alleges that on or around April I Respondent's Department Manager Philip R. Parker (Budget Men's, Domestics, ('hildren's. and Boys' Department) also violated Section 8(a)( 1) by ofTering a pro- motion to an employee if the employee V, ould speak out against the Union. In support of this allegation, the credited testimony2 oft Respondent's budget store lead draperies saleslady Lois Weist, an early union member as well as active union solici- tor and Organizing Committee member, establishes that around April I she was called to her Department Manager Parker's office for her "review," :2 during the course of which he indicated she had an undescribed "problem" with some of' her coworkers, but that she was nevertheless slated for a 17-1/2-cent hourly increase. When she expressed sur- prise at the size of the raise, which exceeded the 15 cents she thought was the maximum. Parker informed her that he expected her "to talk out against the Union." When she expostulated "what my friends would think . . . I was the leader . .. I just couldn't do that," Parker told her that "it' [you] did, [you] would get a promotion." Weist responded that it was "a little late to do that since I was a union organizer," to which Parker replied that "it was never too late" and suggested she take a course or courses at a local college. Weist declined to take any further courses, having already completed II courses without advancement. Per- sisting, Parker indicated that he "knew" that "ift [ou] said 2 Although Department Manager Parker substantially denied that he eser asked Weist to speak out against the Union, based upon comnparatisc testi- monial demeanor observations and because of other negative features OI Parker's testimonial yield (see, e.g., fn. 29, in/ra), I have no hesitancy in preferring and crediting the testimony of Weist. I flatly do not credit Parker's testimony that it was Weist who expressed misgivings to him about the Union, did not know what to do. and was apprehensive about what her friends would think if she made an about-face. Impressed as I was with Weist's testimonial sincerity I would have great difficult); in believing that she would make the kind of remarks to Parker attributed to her by him. 29 Testifying as Respondent's witness, on cross-examination Department Manager Parker conceded that this particular "review" of Weist occurred long before the "Oct. 1977" (Resp. Exh I) when t was due and for the first time in the history of the Company in less than 6 montihs but, instead. was adsanced, fr an unexplained reason. to 2 weeks before the Board-conducted election of April 14 251I DECISIONS OF NATIONAL LABOR RELATIONS BOARD [you] would talk out against the union, that [you] would do it .... [I know you have] the Budget Store in [your] hip pocket and everybody in the store would listen to [you] because anybody that had been at a job for 20 years would have to know an awful lot of people." Crediting Weist, as indicated, it is accordingly found that this allegation of the complaint is established by a fair pre- ponderance of substantial credible evidence upon the rec- ord as a whole. Cf., e.g., Heck's, Inc., 166 NLRB 674, 678 (1967). G(. Ofier of Financial Assistance to Employee To Dissuade Other Employees From Voting /or Union: April I (complaint par. 5(j)(ii)) General Counsel also takes the position that the forego- ing conversation between Respondent's Department Man- ager Parker and Lois Weist (supra, sec. II, F) constituted an offer of financial assistance by Respondent to Weist to pay her way at school for the course or courses Parker suggested she take if Weist would dissuade fellow employees from voting for the Union. Accepting Weist's version of the conversation in ques- tion, I cannot agree. To begin with, in this aspect of the conversation, the possibility of promotion in the context of an additional course was tied to successful completion of that with other courses and therefore to acquisition of addi- tional job-related educational qualifications. Furthermore, Weist had previously completed I I other courses, at Re- spondent's expense, and Parker had as early as October 1976 discussed further education and courses with Weist. Moreover, with respect to the additional course or courses suggested by Parker on the occasion in question, Weist con- ceded that she was unable to recall any indication by Parker that Respondent would pay for it. In view of these admissions by Weist and the previous history of company- defrayed, job-related tuition for Weist totally unrelated to antiunion activity of any kind, I am unable to find or infer from Parker's conduct on the occasion in question that Re- spondent thereby offered Weist financial assistance in this regard for voting against the Union, as alleged in the com- plaint paragraph in question. H. Physically Restraining and Attempting To Obtain Personal Property of Employee Supposedly Relating to Employees' Union Activities: April 5 (complaint para. 5(j)(iv)) The complaint further alleges that on April 5 Respon- dent's Department Manager Parker physically restrained and attempted to obtain personal property of an employee supposedly related to employees' union activities. The em- ployee involved was Respondent's cosmetics saleslady Francine A. Harvey. The incident in question has already been described (su- pra, "II,C"). It involved the episode when Department Manager Parker pursued Harvey around a clothes rack when Harvey, on her breaktime, sought to solicit the signa- tures, on an employees' concerted organizational document, of two of Parker's subordinates during their working time. While it is true that Parker did indeed question Harvey, pursue her, and lay a restraintful hand or hands upon her in order to obtain the document in question-which Harvey thereupon released to Parker-it is also true that Harvey's action was in violation of Respondent's concededly lawful (although disparately applied, as found supra, "II,C") no- solicitation rule, since (unlike Harvey) Parker's two subor- dinates were not on nonworking time. Cf. Mason & Hanger- Silas Mason Co., Inc. v. N.L.R.B., 167 NLRB 894 (1967), enfd. in relevant part 405 F.2d I (5th Cir. 1968); Clear Lake Hospital, 223 NLRB 1 (1976); Emerson Electric Company, 177 NLRB 75, 78 (1969); Threads-Incorporated, 124 NLRB 968, 976-977 (1959). Under the circumstances, Parker had the right to inquire of Harvey what she was doing in his department, as well as to ask her to show him the paper she was soliciting or had solicited his subordinates to sign dur- ing their working time. While Parker perhaps used ungen- tlemanly measures, in taking hold of Harvey to accomplish his purpose of viewing the document, it cannot be said that these measures were under the circumstances violative of the Act, inasmuch as Parker did not offend the Act in de- manding to know what "business" Harvey was seeking to transact with his subordinates during their working time, and particularly since it appeared to be-as it indeed was- in violation of Respondent's valid no-solicitation rule. I find that Parker's action under the circumstances de- scribed did not constitute a violation of Section 8(a)(1) of the Act, and accordingly grant Respondent's motion to dis- miss this allegation of the complaint. I. Physical Assault on Employee To Coerce Employee To Vote Against Union: AprilP0 (complaint par. 5(m)(iii)) The complaint finally alleges that in April Supervisor of Security Billie M. Shortt physically assaulted an employee while instructing her to vote against the Union. The em- ployee in question was Respondent's former shipping, re- ceiving, mailing, and relief security clerk Julia Anne Boo- her. Booher, a member of the union organizing committee and a union handbiller over a 4-month period, testified credibly that on April 13, the day before the Board-con- ducted election, while going down a store hallway, Respon- dent's supervisor of security, Billie Shortt-observed by me at the trial to be a seemingly powerfully built woman- firmly seized Booher by the arm, shook her fist in Booher's face, and angrily warned Booher, "Julia, you'd better vote no for the union because if you don't, just remember, you've got to work with me in the back." The testimony of Booher, an excellent witness who stood up extremely well on lengthy, prodding cross-examination, was adequately corroborated by employee Weist, who observed the de- scribed incident. Shortt's testimony concerning the incident, credibly re- counted in detail by Booher and Weist, is, "I don't recall that incident." Crediting the described, corroborated, and uncontra- dicted testimony of Booher, I find the incident in question, constituting a coercive and restraintful interference and threat against Booher to influence her to vote against the Union, established by substantial credible evidence. 30 Date as amended at the hearing. 252 RIKE'S, A DIV. OF FEDERATED DEPT. STORES Upon the foregoing findings3 and the entire record." I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. Through its actions in coercively interrogating em- ployees concerning their union views, sympathies, and ac- tivities (II,B, supra), in disparately enforcing its no-solicita- tion rule (II,C, supra), in making threats of loss of economic benefits and of layoff in the event of employees' continued adherence to the Union or of unionization (II,D, supra), in offering to adjust employee grievances in case of employees' abandonment of union support (II,E, supra). in offering promotion to an employee if the employee would speak out against the Union (II,F, supra), and in physically assaulting an employee to coerce the employee to vote against the Union in a Board-conducted election (11,I, supra), under the circumstances described and found in II, supra, Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 and continues so to do in violation of Section 8(a)( 1) of the Act. 3. The aforesaid unfair labor practices and each of them have affected, are affecting, and, unless permanently re- strained and enjoined, will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. It has not been established that Respondent violated the Act in the respects set forth in paragraphs 5(m)(i) and (ii) (11,A, supra, surveillance), 5(e) (11,B,I, supra, interroga- tion as to February 1977 only), 5(l)(i), 5(i)(i), and 5(h)(iii) (II,D,l; II,D,3; and II,D,10, supra, threats of loss of eco- nomic benefits and of layoff), 5(j)(ii) (11,G, supra, offer of financial assistance (schooling) to employee to dissuade other employees from voting for the Union), and 5j)(iv) (11,1, supra, physically restraining and attempting to obtain personal property of employee supposedly relating to em- ployees' union activities) of the complaint in Case 9-CA- 11287-1, and those allegations of said complaint should be dismissed. REMEDY Having been found to have violated Section 8(a)(l) in various respects, Respondent should, as is customary in cases of this kind, be ordered to cease and desist from those and similar violations of the Act and to post the usual infor- mative Notice to Employees." THE REPRESENTATION CASE As already indicated, certain union objections to the Em- ployer's conduct said to have affected the results of the HI See Appendix A [omitted from publication] for tabular resume of find- ings cross-referenced to complaint subparagraphs. Respondent's proposed findings and conclusions are allowed only to the extent not inconsistent with the findings and conclusions made and con- tained in the within Decision. t2 Including Resp Exh. 17-ldent., which, being conceded by the Charging Party Union to be "essentially accurate" (November 17 union counsel letter to the judge), is hereby received in evidence. I No bargaining order is sought by the General Counsel (although sug- gested by the Union) or would be appropriate, among other reasons because there was no claim or proof of majority representative status of the Union at any time. April 14 Board-conducted representation election are, through consolidation (Case 9 RC 11876), also here for de- termination. In that election, as aforenoted,4 a majority of votes was cast against union representation. In its objec- tions, the Union claims the election outcome was attribut- able to unlawful acts of the Employer, most of which have been discussed supra, during the interval between the filing of its election petition (January 20) and the election (April 14). The objections, timely filed (April 19), were preliminar- ily considered by the Regional Director in his September 2 Supplemental Decision and order consolidating cases and directing hearing, after his issuance (June 30) of the com- plaint in the underlying unfair labor practices proceeding (9-CA- 11287 I) dealt with supra. Since of the objections interposed only 5, plus a catch-all "other conduct," have been referred," only these A need be considered here. The substance of all objections (3. the first one so num- bered: disparate enforcement of no-solicitation rule: 3, the second one so numbered: unlawful interrogation: 4: unlaw- ful threats: 5: unlawful offer of economic benefits for rejec- tion of Union), except for Objection 2, has already been dealt with supra, in the underlying unfair labor practices complaint case (9-CA 11287 1), and it is unnecessary to redetail those matters here. Some additional, cumulative proof-also unnecessary to detail here, in view of findings already made-was also supplied by Petitioner/Union in support of these objections. Objection 2 is to the effect that the Employer conducted unlawful surveillance over the vot- ing process, area, or its adnexae, by stationing supervisors and security personnel in impermissible proximity to the polling area.)' While this objection, if established, could constitute an infraction of the Board's antielectioneering standards sufficient to warrant setting aside of the election (cf., e.g., Milchem, Inc., 170 NLRB 362 (1968), with which cf. Mclndustries, Inc., 224 NLRB 1298, 1299-1300 (1976) and Threads-Incorporated, 124 NLRB 968, 979-980 (1959)), in view of the more than ample establishment of the re- maining objections-mandated by the findings which have been made supra in the underlying CA case." it would serve no necessary or useful purpose here to engage in a review of the extensive, highly detailed, and hotly contested minutiae Fn. I, supra. " It is to be noted that the Petitioner Union's six objections (dated April 19) contain two objections numbered "3" and that the Regional Director's Supplemental Decision (September 2) seems to compound this error by re- numbering those objections to be seven instead of six. Herein, for the sake of clarity, we shall adhere to the numbenng in the original objections, distin- guishing between the two objections there numbered "3" by refemng to the first as "Objection 3 (the first one so numbered)" and to the second as "Ob- jection 3(the second one so numbered)." ` Objections I and 6 (i.e., 6 in the Petitioner Union's numbering system but 7 in the Regional Director's numbering system) have not been referred here, having been overruled by the Regional Director. "7 And also that the Employer appointed a confidential employee from its personnel department as its election observer: but this aspect of Objection 2 was overruled and not referred here by the Regional Director. 1" Since the standards required by the Board for maintenance of the "labo- ratory ... conditions" (General Shoe Corporation, 77 NLRB 124. 127 (1948)) it desires for its elections are less exacting than those required for proof of unfair labor practices violations, proof of the latter, if the same or closely related, aforriori establishes noncompliance with the election standards. Dal- Ter Optical Co, 137 NLRB 1782, 1786-87 (1962). See also Super Thrift Markets, Inc., 233 NLRB 409 (1977). 253 I)E.(ISIONS OF NATIONAL LABOR RELATIONS BOARD of' prooft presented by each side with regard to Objection 2, since, whether sustained or overruled, the remedy here would be unaffected. It is accordingly recommended that, for reasons already explicated in detail in underlying ('ase 9 CA 11287- 1. su- /r. Petitioner UJnion's Objections 3 (both so numbered). 4, and 5' be sustained and that Objection 2 be dismissed as moot. * Ihe sustaining of these objections of course requires the inalidation of the April 14 election and the holding of a new election at a time and under circumstances which are appropriate, in accordance with the Board's standards and practices in cases of this nature, and it will be accordingly so recommended to the Board. UIpon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this consolidated pro- ceeding, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER4' It is hereby ordered that Rike's, a Division of Federated Department Stores. Inc., Respondent herein, its officers. agents, successors, and assigns, shall: I. ('ease and desist from: (a) Interrogating its employees concerning their or other employees' union views, sympathies, activities, voting inten- tions, or other protected concerted activities, in interference with, or coercion or restraint of: their exercise of' any right under the National abor Relations Act, as amended. (b} IDiscriminatoril) or otherwise in violation of the Act enforcing or applying, against any of its employees exercis- ing or seeking to exercise any right under said Act, any rule, requirement, policy, or practice forbidding, proscribing, or limiting solicitation by employees on Respondent's business premises. (c) Threatening, expressly or impliedly. the cessation, cancellation, withdrawal, removal, loss, or diminution of' any existing job-related economic benefit (including but not limited to employee discounts on purchases at Respon- "V As well ias "other actions and conduct" of the mploser described and found in the within unfair labor practices case to have comprised violations hetween the date iof the petition and the election. *' Respondent's molion to strike out and/or dismiss Objection "2- (as well ais so much of coimnplain par. 5(ni)i) as ma relate to alleged election day surveilllnace) is accordingly dismissed as moot- While recommending. for the reasons indicated. that this particular objec- tion be dismissed as m(oot. in good conscience and to avoid possible repeti- tion I cannot let the occasion pass without commenting that. were I to have considered this objection in all of its factual and legal ramifications and complexities as ultimately tendered by the parties. I doubt that I would have been receptive to Molin's explanation that he was where he claims he was. in relation to the voting place, only because he was making his customary rounds of the store t Such an "explanation" could also justiry" an Employ- er's intrusion into the polling rsm itself.) Common sense (as distinguished from "Mondav morning quarterbacklingl" Molin's disdainful phrase to justify his failure to abort or intercept employee (outure's earlier described antiunion speech itl the podium at the company business assemblage of em- ployees on paid company time) would appear to dictate that, even if Molin's usual roulte carried hiil to, past oir near the voting area. he should steer clear )it ai a election time. J1 In the event ito exceptions are tiled as provided b Sec. 1024h of the Rules and Regulalions of the National Labor Relations Board, the findings and conclusions. s ell as the recommended Order which follows herein, shall, as provided In Sec. 102.48 o those Rules and Regulations, be adopted by the Board and become its indings. cnclusions. and Order, and all bjec- tions thereto shall he deemied aised for all purposes. dent's store), threatening layoff or discharge or adverse al- teration of job status, or threatening any other form of re- prisal for union adherence, support, or voting, selection of a union as collective-bargaining representative, or in the event of unionization. (d) Offering to adjust job-related grievances of employ- ees in return for employees' refraining from or abandoning union support, dissuading other employees toward such end, or voting for the Union in any Board-conducted elec- tion, or for exercising or seeking to exercise any other right under the Act. (e) Offering, tendering, or holding out to any employee the prospect of job promotion in the event the employee would speak out against union or protected concerted ac- tivity or cease his or her exercising or seeking to exercise any right under the Act. (f) Physically assaulting, restraining, coercing, or other- wise unlawfully interfering with any employee in connec- tion with the employee's free and untrammeled right to vote in accordance with his or her conscience in any Board- conducted election or otherwise to exercise or seek to exer- cise any right under the Act. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to self-organization; to fborm, join, or assist any labor organization; to bargain collectively through representa- tives of their own choosing; to engage in concerted activi- ties for the purposes of collective bargaining or other mu- tual aid or protection: or to refrain from any and all such activities. 2. Take the following affirmative actions, necessary to effectuate the policies of the Act: (a) Post at its Salem Mall store location (5200 Salem Avenue, Dayton. Ohio, including leased department prem- ises and locations there42), copies of the attached notice to employees marked "Appendix B."4 Copies of said notice, on forms provided by the Board's Regional Director for Region 9. shall. after being duly signed by Respondent's authorized representative, be posted by Respondent imme- diatelv upon receipt thereof, and maintained by it fr 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. REasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notiffy said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 11 I t'RrIIER )ORI)ERED that the allegations of para- graphs Se. 5h)(iii), 5i(i). 5j)ii), 5j)(iv), 5(1)(i), 5(m)(i), and 5(m)(ii) of' the complaint herein dated June 30, 1977, in Case 9 CA 11287 1 be. and they hereby are, dismissed. AND II IS lFREBIY R('OMMENDED that in Case 9-RC 11876 the Board issue an Order sustaining Petitioner ": See description of appropriate bargaining unit in Regional [)irector's September 2, 1977. Supplemental Decision, fn. I. ° In the event that this Order is enforced by a judgment of a United States ('ourt of Appeals, the words in the notice "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" 254 RIKE'S. A DIV. OF FEDERATED DEPT. STORES Union's Objections 3 (both so numbered). 4, and 5 to em- ployer conduct affecting the results of the statutory repre- sentation election held on April 14, 1977, overruling Objec- tions I and 6, and dismissing Objection 2 as moot; setting aside said election and its outcome; and directing that a new election be held as soon as feasible. under the supervi- sion of the Regional Director for Region 9 and at such time as the Regional Director deems that circumstances permit free choice of bargaining representative." I In the event Respondent refuses or fails to comply Alth the terms of the Order in Case 9 CA 11287 I, I recommend that said Regional )irector also he authorized to conduct the nes election herein recommended, upon nril- ten request of Petitioner Union Ideal BakAin ( or..iam oi ! l7nncisee. I, 143 NL.RB 54. 554. In 9 (196h3 255