L'Eggs Products Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD L'Eggs Products Incorporated and Retail Clerks Union, Local 770, Retail Clerks International Asso- ciation, AFLCIO. Cases 21-CA-14326, 21-CA- 14339, and 21-CA-14353 May 25, 1978 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 24, 1977, Administrative Law Judge Wil. liam J. Pannier 111 issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, General Counsel filed cross-exceptions and a supporting brief, and Respon- dent filed a brief in answer to the General Counsel's cross-exceptions. 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 briefs and has decided to affirm the rulings,' findings, 2 and conclusions 3 of the Administrative Law Judge, to modify his remedy so that interest thereon is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),4 and to adopt his recommended Order. 'Respondent has excepted to certain credibilits findings made bs the Administrative Ltau Judge. It is the Board's established policy not to oser- rule 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 Drt Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Relying on Honevwell, Inc. Photographic Products Division, 225 NLRB 617 (1976), the Administrative Law Judge concluded that the statements made by the area managers and by C(ompany Vice President Engle regard- ing the possible institution of a timeclock procedure and the daily return of vans to Respondent's facility violated Sec. 8(a)(l1) of the Act. Member Mlur- phy, who dissented in Honeywell, finds that case distinguishable and agrees with the result reached by the Administrative Law Judge. The instant case, unlike Honeywell, involves statements concerning matters solel) within Re- spondent's control and occurred against a background of extensive unfair labor practices including threats, interrogations, and the discriminatory dis- charge of two emploNees. Thus, Member Murphy finds that the statements herein, considered in the context of Respondent's unlawful conduct. consti- tute a threat of economic reprisal should the Union be selected See also fn 1, supra. 3 The Administrative Law Judge found that Respondent's obligation to bargain arose on January 26. 1976, the date Respondent first embarked on a clear course of unlawful conduct. Inasmuch as the Union did not request recognition until January 27. 1976, and all of Respondent's other unfair labor practices are remedied by our Order herein, we find that Respondent was obligated to bargain as of January 27 Trading Port, Inc., 219 NLRB 298 (1975). Chariman Fanning agrees that the bargaining obligation begat. on the date of demand s See, generally, Lvis Plumbing & Heating (Co., 138 NLRB '716 (1962) ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, L'eggs Products Incor- porated, Buena Park, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities except to the extent that the employees' bar- gaining representative and employer have a collective-bargaining agreement which impos- es a lawful requirement that employees be- come union members. In recognition of these rights, we hereby notify our employees that: WE WILL NOT interrogate you regarding your union membership, activities, and sympathies nor concerning the union membership, activi- ties, or sympathies of your fellow employees. WE WILL NOT make statements to you creating the impression that we are engaging in surveil- lance of your union activities. WE WILL NOT threaten you with discharge, more onerous working conditions, or loss of em- ployee benefits should you select a labor organi- zation to represent you. WE WILL NOT attempt to persuade you to re- voke your authorization cards nor withdraw your support from any labor organization which you choose to have represent you. WE WILL NOT solicit, encourage, nor assist you to engage in surveillance on our behalf of the 236 NLRB No. 43 354 L'EGGS PRODUCTS INCORPORATED union activities of your fellow employees. WE WILL NOT discharge or otherwise discrimi- nate against you for engaging in activities on be- half of Retail Clerks Union, Local 770, Retail Clerks International Association, AFL-CIO, or any other labor organization. WE WILL NOT refuse to recognize Retail Clerks Union, Local 770, Retail Clerks International Association, AFL-CIO, as the collective-bar- gaining representative of: All full-time and part-time route sales repre- sentatives in our southern California or Buena Park district, located at 6800 Orangethorpe Avenue, Buena Park, California; excluding all office clerical employees, confidential em- ployees, professional employees, guards, watchmen and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act. WE WILL offer Lu Ann Morgan and Jackie Wade Smith immediate and full reinstatement to their former positions, dismissing, if neces- sary, anyone who may have been hired or as- signed to perform the work which they had been performing prior to the time they were terminat- ed, or, if their former positions do not exist, to substantially equivalent position, without preju- dice to their seniority or other rights or privi- leges, and make them whole for any loss of pay they may have suffered as a result of our dis- crimination. WE WILL, upon request, recognize and bargain with Retail Clerks Union, Local 770, Retail Clerks International Association, AFL-CIO. as the collective-bargaining representative of the employees in the unit described above re- specting rates of pay, wages, hours, or other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. L'EGGS PRODUCTS INCORPORATED DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER 11I. Administrative Law Judge: This matter was heard by me in Los Angeles, California, for 25 days during the period August 30 to November 11, 1976.' On May 24, the Regional Director for Region 21 of the t Unless otherwise stated. all dates occurred in 1976. National Labor Relations Board issued an order consoli- dating cases, consolidated complaint and notice of hearing. based upon unfair labor practices charges filed on January 27 and amended on February 26 in Case 21-CA-14326, on January 30 in Case 21-CA-14339, and February 4 in Case 21-CA-14353. The consolidated complaint alleges viola- tions of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, 29 U.S.C.. § 151. et seq., herein called the Act. All parties have been afforded full opportunity to ap- pear, to introduce evidence. to examine and cross-examine witnesses, and to file briefs. Based upon the entire record. upon the briefs, and upon my observation of the demeanor of the witnesses. I make the following: FINDINGS OF FACT I JU;RISDICTION At all times material, L'eggs Products Incorporated, herein called Respondent, has been a corporation engaged in the manufacture of ladies' hosiery, with its western re- gion office for the II western states and its Southern Cali- fornia district office located at 6800 Orangethorpe Avenue, Buena Park, California. In the normal course and conduct of its business operations, Respondent annually sells and ships goods and products valued in excess of $50.000 di- rectly to customers located outside the State of California. Therefore, I find that at all times material, Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11 THF LABOR ORGANIZAlION INVOL.ED At all times material. Retail Clerks Union, Local 770. Retail Clerks International Association, AFL-CIO, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. III ISSUES Most of the events in this matter occurred after January 21, when Respondent received a letter from the Union ad- vising that 13 named employees were engaging "in an orga- nizing program to obtain a union contract." Between Janu- ary 26 and 29, Respondent's four area managers 2 -- Sheryl Johnson, Susan K. Smith, Deanna Manning,3 and Gary Hetherington, as well as Leon Hardy, Respondent's district manager for the Southern California District met indivi- dually with all employees in the unit for conversations in which, alleges the General Counsel, threats of discharge and other reprisals were uttered, interrogations were con- ducted, statements were made creating the impression of surveillance by Respondent of employees' union activities. :An area manager Is a first -line supervisor By the time of the hearing. Manning had gotten married with her last name changing to Fader Marriage had also led to changes in the last names of Jackie Wade (Smith). of linda Rehmann {Stokes) and of Shirles Sauters (Davis). To atiid confusion. premarriage names %ill be used In sci IV of this Decision 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and employees were solicited to revoke their union authori- zation cards and to engage in surveillance, on behalf of Respondent, of the union activities of other employees, with assistance being rendered by Respondent for conduct- ing such surveillance. On January 26, Respondent dis- charged Jackie Wade and on the following day, terminated Carol Manheimer and Beverly Bolt. The General Counsel alleges that Respondent did so because these three employ- ees engaged in union or other protected concerted activi- ties for the purposes of collective bargaining or other mutu- al aid or protection.4 The complaint further alleges that in January and February, Respondent's Director of Field Personnel Le Monde Price solicited and encouraged em- ployees to engage in surveillance for Respondent of the union activities of other employees and rendered assistance to those employees for that purpose. On January 27, the Union, by letter, demanded recognition as the representa- tive of "All full-time and part-time route sales girls working out of the Buena Park District Office, excluding guards, confidential employees and supervisors, as defined in the National Labor Relations Act." The General Counsel al- leges that since January 19, Respondent has violated the Act by refusing to bargain collectively in good faith with the Union as the collective-bargaining representative of the employees in that unit.5 On February 5, Respondent held a meeting of the em- ployees at which Senior Vice President, Sales and Distribu- tion Robert M. Engle delivered a speech. The General Counsel alleges that during the course of his comments, Engle threatened employees with discharge and other re- prisals, made statements creating the impression of surveil- lance by Respondent of employees' union activities, made statements creating the impression that it was futile for employees to support the Union and solicited employees to revoke their authorization cards. During a postmeeting conversation with an employee, Vice President of Employ- ee Relations Robert C. Radcliffe made certain comments which are alleged to constitute unlawful interrogation and a threat of more onerous working conditions. Certain additional conduct, not occurring during the aforementioned sequence of events, is also alleged to have been unlawful. Most prominent is the allegation that the discharge of LuAnn Morgan in November 1975 was moti- vated by her union or protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. Area Manager Manning is alleged to have in- terrogated and threatened an applicant, during a prehire interview, in November 1975, as is Area Manager Hether- ington, and Warehouse Manager John Batty allegedly in- terrogated an employee during January. Additionally, Another employee. John Kelly, was also alleged to have been unlaswfullk discharged on January 27, hut follkwing his testimony, the General Coun- sel's motion was granted tto withdraw his name from the climplaint because "certain of his testimony n as untrue'' The unit as alleged in the complaint is: All full-time and part-time route sales employees based at Respondent's facilits located at 6800 Orange- thorpe Avenue, Buena Park. Californial excluding all office clerical emplo- ees. confidential employees. professionall eniployees. guards, watchmen. aind supervisors as defined in the Act In reailty the correct title for the employ- ees. who are responsible for servicing Respondent's displays in retail outlets. is route sales representatives (herein called RSRs)v statements asserting that employees were terminated for unlawful reasons are attributed to Hardy and Batty in No- vember 1975 and to Western Region Manager C. David Schwaegler in January.6 Finally, it is alleged that by com- ments to employees in November 1975, Hetherington cre- ated the impression that Respondent was engaging in sur- veillance of employees' union activities. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of LuAnn Morgan 1. Overview of Morgan's employment LuAnn Morgan worked in Respondent's Oklahoma City Area from November 1974 to June 1975, when she quit to move to San Diego. After arriving in San Diego she con- tacted Respondent's Buena Park office and was ultimately hired by Area Manager Gary Hetherington, beginning work on August 11, 1975. After spending 2 days riding with Area Trainer Geri Quigley, Morgan commenced servicing route 35, the route to which she was assigned and on which she worked throughout her employment with Respondent in San Diego. It is undisputed that at the time that Morgan was hired, Hetherington had told her that route 35 was in poor condition and did not satisfy Respondent's standards. In fact, he gave her a list of 13 stores where the boutiques needed to be deep cleaned.' In early November 1975, Morgan participated in a gen- eral discussion regarding unions, while at the balance point,8 with warehouseman Dennis Potter and with RSRs Quigley, Majo Michaels, and Mary Ann O'Malley. While Potter testified that it had been either Morgan or Quigley who had inquired of him at that time about unions, telling him that the inquiry was on behalf of a boyfriend, Quigley testified that it had been Morgan who had directed the inquires to Potter.9 On November 14, 1975, Morgan was the only San Diego RSR to attend a training seminar conducted by Branch Trainer Jennie Andrews. During lunch with other RSRs, Morgan expressed interest in unionization of Respondent's RSRs and, in response, RSR Arlene Hungate Itimmedi- ately voiced strong objection to Morgan's suggestion. That evening, Hungate contacted Area Manager Deanna Man- Although not included in the complaint, the General Counsel urges, in his brief, that a violation be found and remedied based upon the fact that this incident was fully litigated at the hearing. Deep cleaning, in effect. involves a thorough cleaning of all component parts of the boutiques on which Respondent's product is displayed in retail stores A balance point is a location to which RSRs go weekly to turn in their paperwork and to receive their supplies for the following week. At the bal- ance point, each RSR meets individually with her area manager to review her performance. paperwork and conditions on her route. Although O'Malley attributed the inquiries to Michaels and testified that the~ had been related to a strike at a nearby building, during a subse- quent conversation she told Hetherington that she had not paid much atten- tion to what had been said at the balance point. As will be seen, O'Malley's testimony is suspect for she was quite loyal to Respondent "l As will be discussed intra Hungate remained opposed to unionization Ihroughout the events which transpired in this matter and in late January telephoned a number of RSRs expressing opposition to the Union, question- ing the RSRs as to their opinions and soliciting these RSRs to withdraw their support from the Union. 356 L'EGGS PRODUCTS INCORPORATED ning, reporting what Morgan had said during the seminar. On November 20, 1975,. Hetherington terminated Mor- gan for poor performance. Manheimer was summoned from her job as branch clerk to run the route for 2 days, during which time the application process for RSR Sue Pierce was completed so that she could take over the route which Morgan had been servicing. Respondent's defense, basically, is that Morgan's work performance displayed a consistent and accelerating rec- ord of poor performance-particularly in the area of stock- outs, missed calls, cleanliness, and paperwork--culminat- ing in receipt of a zero mark on her annual performance evaluation, the lowest mark ever received bh an RSR in the experience of Hetherington and a mark which he testified mandated that Morgan be discharged. Conversely, the General Counsel contends that the proximate cause of Morgan's termination was the acquisition of knowledge by Respondent that Morgan had been advocating unioniza- tion. This motivation, urges the General Counsel, has sim- ply been shrouded by a defense which distorts and magni- fies Morgan's marginal performance and which portrays her as a totally unsatisfactory employee, when in fact her work was never as poor as Respondent attempts to depict. 2. Affirmative factors indicating that Morgan's termination was unlawfully motivated A series of factors are present to support the General Counsel's contention that Morgan's termination resulted from her comments favoring unionization. The first such factor is the timing of the discharge, following within a week of Morgan's comments at the RSR training seminar. Proximity of time between protected activity and termina- tion "strongly suggests a causative relationship between the two and is, as we have said, sufficient to establish a prima facie case .... " Union Camp Corporation, Building Prod- ucts Div., 194 NLRB 933 (1972), enfd. 463 F.2d 1136 (C.A. 5). A second factor is the haste with which Morgan's termi- nation was effectuated. As will be discussed infra, Sue Smith asserted that one reason that she had delayed her purported decision of December 1975 to terminate Jackie Wade was to attempt to have a replacement RSR trained to begin servicing Wade's route, thereby avoiding or at least minimizing the confusion incident to a changeover in service. Here, Hetherington had assertedly arranged to hire Sue Pierce as Morgan's replacement. Yet. Pierce would not be available to work until the following week. Nonetheless. Hetherington dismissed Morgan, thereby necessitating the temporary transfer of a clerical employee. branch clerk Carol Manheimer, to service Morgan's route in the interim. notwithstanding the fact that 6 months had passed since Manheimer had serviced route 35 and the further fact that Manheimer's experience on route 35 had been limited to a While Morgan testified that this occurred on Noemnbher 21. 1975S'. leth- erington placed it on NovNember 20.. and ( arn*l Manheimer, an .lleged dII- criminalee and the person who was assigned to Morgan'n rllte foilo.ilnq the latter's termination. testified that she had sustituted on the routc Ion Thursday and Frida, of the week of Morgan's termination X.ccordliglI. I find Ihal the termination did occur eon November 20. 1975 5-week period. So far as the record discloses, there was no need to resort to summary termination of Morgan. Hether- ington testified that his final decision to terminate her was based upon the results of her annual appraisal. Thus it was not the product of an act of misconduct, such as insubordi- nation or theft, which, by its nature, would mandate imme- diate termination. Furthermore, based upon the Employee Status Notice which accompanied Morgan's performance appraisal, it does not appear that her appraisal was due until December 1. 1975. In fact, delay in submitting the appraisals was apparently not uncommon, as Sue Smith was concededly late in submitting her appraisal of Jackie Wade in January. discussed infra. "The abruptness of a discharge and its timing are persuasive evidence as to moti- vation." N.L.R.B. v. Montgomerv Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2. 1957), cert. denied 355 U.S. 829. Here. Morgan was terminated less than a week after her comments regarding the need for unionization of Respon- dent's RSRs. The termination was effected at a time when no replacement was immediately available. There was no business-related need to take hasty action on November 20, 1975. In these circumstances, there is a definite infer- ence that Morgan was terminated as soon as possible in order to eliminate her from Respondent's payroll and to eliminate the possibility that she might act upon the sug- gestion which she made at the seminar luncheon. "In our view, the haste with which Respondent acted is strongly indicative of a discriminatory motive." Heath International, Inc., 196 NLRB 318, 319 (1972). While 1Hetherington denied that he had been aware of Morgan's sympathy toward representation, it is clear that Respondent was aware of her comments at the training seminar and that this knowledge was possessed as early as the evening of November 14. 1975. Area Manager Deanna Manning conceded that on that evening, she had received a telephone call from Hungate. who had related what Mor- gan had said during the luncheon. Although Manning de- nied reporting Hungate's remarks to her superior, Leon Hardv, until the following Thursday or Friday (November 20 or 21, 1975), her admitted knowledge can be imputed to Respondent. Montgomler tWto;rd & Co., Inc., 115 NLRB 645. 647 (1956), enfd. 242 1 .2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829: Stewart &- Stevenson Services, Inc., 164 NLRB 741. 743 (1967). enfd. 414 F.2d 232 (C.A. 5. 1969); Munro Enterpri.se.s, ., 210 NILRB 403, fn. 3 (1974). Although Hatrdv corrobo)rated Manning's testimony. that it had not been until after Morgan's termination that she had told him of the telephone conversation with Hun- gate, this record leaves considerable doubt that Manning would not relay such information to her superiors. As will be discussed infra. Hard' was not a reliable witness. There is no question but that Respondent was sensitive to the possiblity of unionization. for, as will be described intra, a bevy of high officials was immediately dispatched from Respondent's headquarters to California in January upon discovery that a union organizing campaign was in prog- ress. Moreover, from January, Director of Field Personnel Le Monde Price was assigned to remain in Buena Park so that he could personally assist Respondent's local officials in connection with the organizing drive. Finally, as will he detailed more fully in connection with the termination of 357 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jackie Wade, Respondent's overall operation is character- ized by a highly detailed reporting system at all levels of supervision. Thus, every supervisor, including the area managers, prepares a weekly report submitted to his or her superior, which details activities performed during the pre- ceding week. It is, consequently, highly unlikely that an area manager, upon learning that an RSR had been advo- cating unionization and that another RSR might quit if representation were attained, would fail to relay such infor- mation to her immediate superior at the earliest possible moment. Moreover, there is direct evidence that Manning did re- port Hungate's comments at the earliest possible moment, for Beverly Bolt, Region Secretary at the time of these events, testified that on Monday following the seminar, Manning asked if Bolt was aware of what had occurred during the seminar and had then related that during a tele- phone call on Friday night, Hungate had repeated Morgan's comments and had threatened to quit if the RSRs became unionized. Manning, according to Bolt, then went on to say that she had spoken with Western Region Sales Manager C. David Schwaegler at 6 a.m. Saturday morning about the matter. Later that day, or on the follow- ing day, testified Bolt, Price had called and she had heard Manning describe Hungate's comments to Price and also had heard her telling Price that she (Manning) had already repeated Hungate's comments to Hardy, Hetherington, Schwaegler, and Bolt. Manning denied having any such conversation with Bolt regarding the Hungate telephone call, denied ever telling Bolt that she had tried to reach company officials to tell them what Hungate had related, and denied telephoning company officials about the mat- ter. Although she also denied discussing Morgan with Price, Manning conceded that she may have received a telephone call from Price during the week following the seminar and, further, that she may have spoken with Price while in Bolt's presence, although she contended that the substance of the conversation involved prorating the incen- tive of a Las Vegas RSR. Similarly, while conceding that he probably had spoken with Manning in November, Price testified that the conversation had involved the Las Vegas RSR and he denied having discussed Morgan with Man- ning. Schwaegler denied ever having heard of Morgan prior to her discharge, and further denied having received a telephone call from Manning on Saturday, November 15, 1975, about Morgan, testifying that he had left at 7 or 8 a.m. that morning to go fishing and had been gone all day. Much of Bolt's testimony was simply not credible. With regard to the sequence of events culminating in Morgan's termination, Bolt testified that during the week following the seminar Schwaegler had been in his office where he had spoken with Hardy about discharging Morgan both during face-to-face conversations and during telephone conversations. Bolt displayed no doubt, for example, that on Thursday, November 20, 1975, she had heard Schwae- gler engaging in a telephone conversation with Hardy, who was out of the office, and that following that conversation, Schwaegler had said to her "the problem has been solved." Yet during Respondent's case-in-chief, documentary evi- dence was produced to support Schwaegler's testimony that he had left Southern California on Sunday, November 16, 1975, and had not returned until the evening of Thurs- day, November 20, 1975. Bolt's efforts, on rebuttal, to re- habilitate herself by saying that she had only heard Hardy during these conversations and that Hardy might have been speaking with Schwaegler by telephone were most un- persuasive, and were clearly at odds with her testimony during the General Counsel's case-in-chief, particularly that segment of her testimony described above. Nonetheless, Bolt testified to Manning's Monday morn- ing comments before Manning had testified to Hungate's telephone call. There was no evidence that Manning had ever related Hungate's remarks to Bolt on any other occa- sion. Manning did concede that she had told Hardy about the telephone conversation with Hungate, but contended that she did not relate Hungate's remarks to Hardy until late in the afternoon of Thursday, November 20, 1975, at a point in time when Morgan had already been terminated and when Manheimer had begun servicing Morgan's route. Hardy testified that he told only Hetherington and Schwaegler about what Manning had said to him and Schwaegler testified that when Hardy had told him about Manning's description of the Hungate telephone call, he had "immediately dismissed it from my mind because she was gone and it was over with." Certainly there would have been no occasion for Hetherington to have discussed the matter with Bolt and the record does not disclose any evi- dence that he did so. Consequently, the question arises as to how Bolt would have known so much about the sub- stance of Hungate's comments to Manning during their telephone conversation unless somebody told her. As all other possibilities must be excluded, it is a fair inference that Bolt must have learned about Hungate's comments during the conversation which she described. This conclu- sion is further supported by the admissions of Price and Manning that there was a telephone conversation between them during this time, though, of course, they did not ad- mit having discussed Morgan. In these circumstances, I find that while Bolt's testimony was not credible in other respects, her testimony with regard to what she had been told by Manning on the morning of Monday, November 17, 1975, is credible.' Bolt's testimony regarding Manning's comments during the early part of the week following the training seminar, particularly her testimony that Manning had told Price during their telephone conversation that she had related Hungate's comments to Hetherington, finds further sup- port from the testimony of Mary Ann O'Malley. On direct examination O'Malley testified that on Sunday, November 16, 1975, Hetherington had telephoned to inquire if she was having any work-related problems and that when she had replied negatively, Hetherington had then asked if she ever had been approached by someone in the Union. O'Malley testified that she had replied by mentioning both an incident when a union representative had interfered with her while servicing the boutique in a retail store, an event which occurred several months earlier, and the ques- tioning of Potter, which had taken place at the balance 12 It is well settled, of course, that the testimony of a witness can be credited in part. See Bloom/Art Textiles, Inc., 225 NLRB 766, 768-769 (1976), and cases cited therein. 358 L'EGGS PRODUCTS INCORPORATED) point earlier that same month. According to O'Malley. she had then asked the reason for Hetherington's questions, to which he replied "one of the girls had said something to another girl about unions and this other girl from that area went to her supervisor, saying, 'what's this about L'eggs going union? If that's true, I quit.' " O'Malley testified that when she asked if it had been Michaels, Hetherington had replied that it had not been, but that as the conversation continued: · . it came up that at the recent RSR meeting new RSR meeting, whatever they call it -that one of the girls from San Diego said to another girl from another area. Something about they were I don't know how this conversation was started about just-about union, but she stated that if l'eggs were to go union that all of the San Diego girls would go. As O'Malley was aware that Morgan had been the only San Diego RSR to attend the seminar, Hetherington's comments altered her to the fact that he was referring to Morgan. She further testified that Morgan's name had been raised during the conversation but she was uncertain as to whether it had been Hetherington or herself who had first mentioned the name Morgan. The conversation con- tinued, according to O'Malley, with Hetherington saying "that he had been told by his supervisor that he was to find out who this girl was, and whoever she was, get rid of her." Hetherington denied having told O'Malley that his supe- riors had told him to find out who was in the Union and to get rid of him or her, denied that anything had been said to Morgan other than that she had been present during the balance point questioning of Potter, and testified that he was not positive whether the subject of O'Malley being approached by a union representative at a store had arisen during the conversation. Nonetheless, Hetherington's testi- mony did corroborate that of O'Mallev in many respects. He acknowledged that the conversation had occurred and that O'Malley may have mentioned having been ap- proached by a union representative during the servicing of a boutique in a store. He conceded having asked O'Malley if everything was okay with her job or if there were any particular problems that she was having, either with her job or her working conditions. He agreed that he had asked O'Malley if she had heard any mention of union activity or if she thought that the other RSRs were unhappy, and that O'Malley had mentioned the balance point conversation when one of the RSRs had inquired of Potter regarding unionization. He admitted that he had mentioned the training seminar and had said that he had heard that one of the San Diego RSRs had been unhappy with working conditions and was interested in union representation. Ac- cording to Hetherington, O'Malley had then attempted to guess who the RSR had been, inquiring if it was Michaels, to which he replied in the negative. Notwithstanding these concessions. Hetherington testi- fied that the conversation with O'Malley had taken place on the evening of Sunday. November 23, 1975, rather than. as O'Malley testified on direct examination, on Sunday night. November 16. 1975. On cross-examination, O'Mal- ley was pressed, both with regard to the date of the conver- sation and with regard to her testimony that Hetherington had said that he had been instructed to terminate the RSR who had raised the subject of the Union. O'Malle? conced- ed that the conversation may have taken place on the fol- lowing Sunday, November 23. 1975. However, she further testified that she believed that it had, in fact, occurred on November 16. 1975. because it followed a balance point conversation in which Morgan had discussed going to the training seminar the next day. On redirect examination, she then renewed her assertion that, to the best of her rec- ollection. the conversation had occurred on the weekend immediately following the seminar. Further, on cross-ex- amination O'Malley expressed uncertainty as to whether Hetherington had directly told her that he had been or- dered to get rid of the RSR who had raised the subject of the Union, testifying that this could have been an assump- tion on her part. She then expressed further uncertainty with regard to whether or not Hetherington had told her that his orders had been to ascertain the identity of the RSR who had made the statement at the seminar. How- ever, her description as to the basis for her uncertainty regarding the latter was that it did not seem likely that Hetherington would have made such a statement if he had already known the identity of the RSR who had made the comments at the seminar. Accordingly, this was quite clearly an effort to rationalize Hetherington's motivation. rather than an effort by O'Malley to recall precisely Hetherington's comments to the best of her recollection.'" O'Malley appeared to construe herself as being in a diffi- cult position, as appears to have been the case. She had not been approached to sign a authorization card because the employees had suspected her of favoring Respondent. This suspicion was well-founded, for O'Malley was opposed to unionization of the RSRs throughout the organizing cam- paign. Moreover, when she appeared as a witness. O'Mal- ley was employed by Respondent and had been on a suffi- ciently friendly basis with Hetherington to have been his tennis companion at her club on at least one occasion. Yet, she was in frequent contact with her coworkers. Accord- ingly, she appeared to feel caught between contending forces and seemed to hbe attempting to accommodate Re- spondent's conflicting interest. Thus, while she described what had transpired on direct examination, she then at- tempted to accommodate Respondent's position by will- ingly acquiescing, where possible. to questions which sug- gested approaches that would mitigate the adverse effects on Respondent of her testimon, on direct examination. Notwithstanding this effort, at several points O'Malley did say that she was certain that Hetherington had told her that he had been instructed to find out who the RSR had been who had raised the subject of the Union during the training session in San Diego. This was her recollection and I do not believe that her efforts to rationalize what would have motivated Hetherington to make such a state- ment detracts from her memory on this particular point. Moreover. I find it unlikely that she would accuse Hether- ington of having made the statement that he had been told to get rid of that RSR unless there was some basis in fact for the assertion Therefore, I find that Hetherington did In l!iu rc.gard I helhce that ()O'Malcl a,, pursuing the anime c'lden.e ho diductioth.n approach that Respontden! chargre, Potter .ith fotlohlng 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD call O'Malley on the Sunday following the RSR training seminar, that he did tell her of his awareness of Morgan's statements during the luncheon favoring representation of the RSRs, that he did tell her that he had been directed by his superiors to ascertain the identity of the RSR who had made those statements and that he did say to O'Malley that he had been directed to find a method for terminating Morgan because of her sentiments. Moreover, I find that in making these comments Respondent, through Hethering- ton, violated Section 8(a)( ) of the Act, by interrogating O'Malley regarding her union sympathies and by threat- ening that Respondent would discharge RSRs who sup- ported unions. O'Malley's favoritism toward Respondent and her friendship with Hetherington are significant in another area involving Morgan. As described above, in early' No- vember there was a conversation regarding unions at the balance point where Morgan had been present. Dennis Potter testified that following the conversation he had re- turned to Respondent's Buena Park facility, where he had received a telephone call from Hetherington, who had said that one of the RSRs had mentioned that he (Potter) had been talking about the Union with the RSRs in San Diego, had demanded to know the substance of Morgan's com- ments about the Union, and had asked whether the RSRs were attempting to organize in San Diego. Potter testified that he had replied that he did not think that anything had been going on and that one of the RSRs had merely been making inquiries on behalf of a boyfriend. Following this reply, testified Potter. Hetherington had demanded to talk to Hard), and Potter then transferred the call. According to Potter, the only RSR's name mentioned during the conser- sation had been that of Morgan. and during the conversa- tion, according to Potter, Hetherington had been "stutter- ing and just, you know, talking real fast, and Gary was really, you know, usually real cool, so I knew he was upset .... " Potter placed Warehouse Manager John Batty as having been sitting in the office during his telephone con- versation with Hetherington and Potter testified that after having switched Hetherington to Hardy, he had then de- scribed the essence of the telephone conversation to Batty. Batty denied that any such conversation had ever occurred and, indeed, there were a number of factors about Potter, discussed infra, that lead me to believe that his testin-ony should not be credited where it stands unsupported. Hosw- ever, the simple fact with respect to the comments attribut- ed to Hetherington during this telephone conversation is that they stand undenied. In its brief, Respondent cites transcript pages 2971 and 2972 to support its assertion that Hetherington did not have such a conversation with Potter. Examination of those two transcript pages discloses that Hetherington denied that he had been aware of Morgan's union involvement or sympathies prior to her termination, deinied ever discussing with Morgan any union activities or sympathies prior to her termination, denied discussing unions or Morgan's feelings toward unions with her prior to her termination, denied receiving any telephone calls on November 20, 1975. or prior thereto, from anyone em- ployed by Respondent as to any activity or sentiments re- garding the Union and Morgan, and denied being aware at the time of Morgan's termination of any union activity on her part. Denials as to these matters do not constitute deni- als of the statements attributed to Hetherington during his telephone conversation with Potter. Accordingly, I credit Potter in this respect and I find that such a telephone con- versation did occur, that Hetherington did interrogate Pot- ter regarding the union sympathies and activities of the RSRs, that Hetherington did identify Morgan as being the RSR who had discussed the Union at the balance point, and both by the substance of the questions asked and by the manner in which they were asked, as described by Pot- ter, that Hetherington's comments were inherently coer- cive. Accordingly, I find that Respondent, through Hether- ington, did violate Section 8(a)(1) of the Act, by creating the impression of surveillance of employees' union activi- ties and by interrogating Potter regarding the union sym- pathies and activities of employees. In summary therefore, the General Counsel has estab- lished that Morgan did express sympathy toward unioniza- tion of the RSRs; that she was identified to Respondent by another RSR as being the individual who had discussed unionization at the balance point in early November but that through his telephone comments to Hetherington, Pot- ter had temporarily allayed any fears on Respondent's part that Morgan would attempt to generate an organizing cam- paign; that Respondent then learned that Morgan had made comments during a training seminar luncheon indi- cating her desire for representation of the RSRs; that Re- spondent. through Hetherington, then attempted to ascer- tain the basis, if any, of the RSRs' dissatisfaction and expressed the intention of disposing of Morgan; and that within a week of the training seminar that Morgan was terminated abruptly. 3. Respondent's defense As found above, the General Counsel has established a prima facie case that Morgan's termination was unlawfully motivated. However, as the Board stated in Klate Holt Company, 161 NLRB 1606, 1612 (1966): The mere fact that an employer may desire to termi- nate an employee because he engages in unwelcome concerted activities does not, of itself, establish the unlawfulness of a subsequent discharge. If an employ- ee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlaw- ful. The testimony and documentary evidence in the instant case appears to leave no doubt that Morgan was less than a model employee. Yet, as will be discussed in greater de- tail, infra, Respondent retained Jackie Wade in its employ- ment for 3 years, notwithstanding a work performance lev- el that was less than exemplary. For example, from October 1974 through June 30, 1975, her then-area manag- er testified that: . .[Wade's] displays or boutiques on her route were filthy, standards changes were not done when they were needed or required or necessary. Her balancing 360 L'EGGS PRODUCTS INCORPORATED paperwork was sloppy, incomplete, inaccurate, items left off. This type of thing. On the overall she was not working up to satisfactory performance. But Wade continued to serve as an employee of Respon- dent. Consequently, there is a threshold question regarding the degree of poor work which Respondent has been will- ing to tolerate, even though an objective analysis of that work performance might well support termination. It is with this basic question in mind that analysis of Respon- dent's defense must be undertaken. Respondent's defense to Morgan's discharge relies heav- ily upon events which assertedly occurred late during the week of the training seminar and during the week of Morgan's termination. Hetherington testified that on Fri- day, November 14, 1975, he had received messages that four customers had called the Buena Park facility to com- plain about lack of service and shortages of product. He testified that when he had called one of these customers, Food Basket Market, he was advised that Morgan assert- edly had told the customer that frequency of service calls to the store were to be reduced, though she had not been given the authority to do so. That evening. testified Hether- ington, he had spoken with Morgan by telephone and she had denied making such a statement at the Food Basket Market and, with regard to another customer (Central Drug), who had purportedly telephoned Respondent, had said that she had made a standard change on her last ser- vice call to that store.' 4 Hetherington testified that on Tuesday, November 18, 1975, he then received another call from Food Basket Mar- ket reporting that their rack "was still shot and they were still upset and they said no one had been in there for two or three weeks." According to Hetherington, the store com- plained that it had not been serviced the previous day even though, he asserted, Morgan had promised to service it on that day. On that same day, Hetherington testified that he journeyed to Central Drug, stopping at two Safeway stores en route. At one of the Safeway stores, he testified, the manager had complained about the RSR (Morgan) always lacking the necessary product to correctly replenish the dis- play and indeed, when he inspected the display, Hethering- ton testified that it did not agree with the route book inso- far as the amount and types of product that should be stocked. Hetherington testified that he then checked the copy of the sales ticket for the last stop that Morgan had made at the store and discovered that no standard change had been made by her at that time, even though she had stated that she had done so. He testified that when he ar- rived at Central Drug a similar situation had prevailed: Though Morgan had told him that she had made a stan- dard change during her last service call, the sales ticket disclosed that no standard change had been made and the 14 In essence. a standard change insolves a read ustment of the IN pc.l and numbers of product that are carried on the hbolique. with the ohbject being to Increase the number of items which are selling well and to decrease the number of items whlch are not being purchased il as great a qulanlts Ultimately, the object is to avoid what is referred to as a. sockout Ia sitLa- lion where a product is completels sold out before the RSR can rctuin ito the store to replenish the suppl?. thereb, leavling a period of tlime ,hen customers cannlot purchase that particular product because nolt cnoitIh of It has been placed on the boutique boutique was not stocked in agreement with the route book. Hetherington testified that he conducted boutique inspections at all three stores at which he stopped that day, filling out a Field Inspection Report at each one to show the results of that inspection. According to the Field In- spection Report introduced at the hearing, Morgan re- ceived a 74 on her boutique at the Safeway store on Grape, a 78 at the Safeway on Orange, and a 78 at Central Drug. Respondent's witnesses testified that 85 was the minimum acceptable grade. Upon returning to his office from Central Drug, testified Hetherington, he computed the results of a contest which he had been conducting among the RSRs whom he had supervised from early October through November 14, 1975. The results of the contest disclosed that Morgan re- ceived only 2.035 points out of a possible total of 4,000 points 900 less points than the next lowest RSR and al- most 1700 points less than the RSR who finished first in the contest. Hetherington testified that he had then turned to preparing Morgan's annual evaluation and, upon com- pleting the form which is received from Respondent's Win- ston-Salem headquarters. had ascertained that Morgan had received a total score of zero. Hetherington testified that the minimal passing grade on such an evaluation is 45 points and that he had never before seen a score of zero. At this point, he testified. he made the final decision to termi- nate Morgan, taking into account all of the information and documentation which had been accumulated during her 3-month employment in San Diego. The pre-November 14, 1975. facets of Respondent's de- fense will be discussed below. Concentrating at this point on the above-described sequence of purported events, oc- curring on and after the date of the training seminar, there are a series of matters which objectively diminish the relia- bility of Hetherington's testimony. Most obvious is the fact that all of this information and documentation was generated following Morgan's comments at the seminar luncheon and following Hungate's telephone call to Manning on that eve- ning. Moreover, theevents described by Hetherington during the week of Morgan's termination and the documentation which was concededly prepared by Hetherington during that week were all matters arising after Hetherington's telephone conversation with O'Malley in which he had acknowledged receiving instructions to "get rid" of the RSR who had made the prounion comments at the seminar. The second factor diminishing Hetherington's defense is the page of notations which he purportedly made on No- vember 14, 1975. when he contacted the Buena Park office for his messages. This page is reproduced as Appendix A. Noteworthy is Hetherington's manner of listing customers who assertedly had left messages at Buena Park that day complaining about the lack of service and the depletion of product on their boutiques. Of the four messages which Hetherington claims to have received that day, the one concerning Food Basket is first. The significant point is that the Food Basket portion of this page is a potpourri of conversations, starting with the purported message left at the Buena Park office, followed by the asserted comments made to Hetherington by Food Basket personnel when he then telephoned that store that same day and concluding 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the comments which he contends were made to him by Food Basket personnel on November 18, 1975. Yet, no similar gap exists in those portions of the page which recite the substance of the second and third messages which Hetherington purportedly received. Hetherington ad- vanced no explanation as to why he would have left a gap after the first message and would not have left a similar gap after the second and third messages. This raises some doubt as to the contemporaneousness of this particular document a doubt further strengthened by Hetherington's inability to recall the name of the clerk at the Buena Park office who had assertedly read these mes- sages to him. In this posture, not only was there a lack of corroboration for his testimony with regard to receipt of the messages, but his lack of recall effectively barred the General Counsel from contradicting his testimony by at- tempting to call the clerk who had purportedly related those messages to him. Moreover, none of the officials of any of the customers listed on that exhibit were called as witnesses to corroborate Hetherington's testimony in this regard. During direct examination, Hetherington testified about service call books that Respondent maintained, in which clerks at the Buena Park office record incoming messages for distribution to area managers. At the point when this testimony was given, Respondent was attempting to show the disparity in the number of service calls received from customers on route 35, in comparison with the minimum number of calls which had been received from customers on other routes in the San Diego Area. Thus the objective in this testimony was to demonstrate the comparative diffi- culty being encountered on Morgan's route. Yet the Gener- al Counsel pointed out that not one of the four calls pur- portedly received from customers on November 14. 1975, was listed in the service call books produced by Respon- dent. When the matter was thus focused, Hetherington, in a most unconvincing fashion, backpedaled, saying that not all service calls received at Buena Park were recorded in the service call books, because frequently persons other than the clerks at that location received such calls and fre- quently they did not bother to note them in the service call book. This testimony was then later supported by Hardy. An additional problem arose when Hetherington testi- fied that, as a special account, the Food Basket call would have been referred to Don Carlson, District Sales Repre- sentative. This then raised the question of why Carlson would have chosen to simply have a clerk relay the mes- sage to Hetherington rather than contact Hetherington himself in view of the special nature of this account. More- over, if Carlson had received the call, no explanation was advanced for not calling him to corroborate Hetherington in light of the plainly evident problem with the latter's no- tation. Indeed, Hetherington also testified that the Food Basket official, Bill Watson, who had placed the call, pos- sessed Hetherington's unlisted telephone number. If Wat- son was in fact as concerned as Hetherington seeks to de- pict him, why would he not then have called Hetherington directly, rather than contact Buena Park and simply leave a message. These factors cast considerable doubt upon the validity of Respondent's Exhibit 39. Nor was this the only exhibit proffered by Respondent, as will be discussed infra, where questions exist as to the authenticity. Moreover, while Hetherington testified that he maintained these types of notes so that he could prepare his weekly activity report to submit to Hardy, no such activity report was produced at the hearing to corroborate the sequence of events which Hetherington described as having occurred on Friday, No- vember 14, 1975, and during the following week. Yet Re- spondent saw fit to produce virtually all of the weekly ac- tivity reports prepared by Sue Smith that contained adverse comments about Jackie Wade and, additionally, submitted a weekly report which Hard)y had prepared based upon an October conversation with Hetherington concerning Morgan. In view of Respondent's detailed re- porting system, the absence of similar reports by Hether- ington concerning Morgan raises considerable doubt as to his testimony regarding the events which he described as occurring from November 14 through 18, 1975. Other facets of Hetherington's testimony regarding the events of the week of Morgan's termination contained in- herent discrepancies. For example, though he took the time to travel to Central Drug and to two Safeway stores on November 18, 1975, there is no evidence that he made any effort to make a similar visit to, or to follow up on. the purported call of November 18, 1975, from Food Basket Market, even though he testified-as Appendix A rec- ords a message from that store complaining about the condition of the boutique that had been received. Further, H-letherington testified that Watson had complained about the condition of the rack and the failure to receive service on November 17, 1975, as Morgan had purportedly prom- ised to do. Yet his notation on Appendix A shows only a complaint about "rack still shot been that way for 2 or 3 wks." No mention is made of a failure to provide service on the preceding day. Further, Hetherington conceded at another point in his testimony that the rack at that store had been changed to hold less product. Accordingly, if, in fact, there had been a depletion of product at that location, there is some basis for finding that the stockouts resulted from the change in the nature of the rack. With regard to the asserted failure by Morgan to have made a standard change at one of the Safeway stores which Hetherington visited on November 18, 1975, the General Counsel objected strenuously to any testimony on this point unless the sales ticket was produced. At that time, it was pointed out to Respondent's counsel that the absence of this document, to corroborate Hetherington's assertion that it had disclosed that no standard change had been made at Safeway. could lead to an adverse inference and would in any event cast considerable doubt upon Hetherington's testimony in this regard. Yet no Safeway sales ticket was ever produced, in contrast to the produc- tion of a sales ticket for Central Drug, also assertedly shown to Hetherington on that same day. This of course raises a question as to whether in fact the Safeway sales ticket did not disclose that a standard change had been made. There is an alternative explanation for Respondent's failure to produce a sales ticket for the Safeway store. While he visited two Safeway stores on November 18 and did not delineate clearly which had been the one where, he claimed, the standard change should have been made, Hetherington implied that it had been the first Safeway 362 L'EGGS PRODUCTS INCORPORATED store, on Grape, where there had been no standard change. notwithstanding Morgan's earlier statement to him that she had changed the standard. If this be true, Hetherington's testimony is flatly contradicted hy the documentation prof- fered by Respondent, for the last page of Respondent's Exhibit 35, a series of notes written out by Morgan and given to Hetherington, bears the date "I 1 15" and the fol- lowing message: "Safeway Grape No std chg forms Long's too." Despite production of the Central Drug sales ticket from Morgan's service call of November 12. 1975. there is no evidence as to what the correct standard should have been at that time for each item on the display. The slip merely shows that the store was serviced, that certain enumerated products were delivered to the store and that it was a nor- mal service call as opposed to one in which a standard change had been made. Further, the service call book dis- closes messages from Central Drug on September 29. Octo- ber 15. and October 20. 1975. Yet there is no evidence that, in contrast to his action of November 18. 1975, Hethering- ton had taken it upon himself to journey, to that store to inspect the display after any prior telephone call. Nor is there evidence showing why he would have chosen to do so on November 18, 1975. Moreover, while he claimed that Central Drug did not call the Buena Park facility on any greater number of occasions than other similarly situated customers, the fact remains that 3 of the 14 calls attributed to route 35 had been placed by Central Drug. thereby indi- cating at least the possibility that this customer had a ten- dency to call more frequently -- particularly as no evidence was produced of a similar number of calls from any other customer, including those on route 35, during so short a period of time and, as Hetherington never went to inspect Central Drug until the week following the seminar. With regard to the service call books, it should also be noted that the first three messages attributed to route 35 were ones which were called in during the initial 6-week period that Morgan had serviced the route, with the result that she may not have had the opportunity to service those customers by that time. There were no messages concern- ing her route in the service call book after November 3. 1975. and the last message prior to that one bears the date of October 20, 1975. Hetherington also conceded that some of the calls had been placed by customers who were not scheduled for regular service but who followed a practice of calling for service whenever necessary. However. he did not attempt to distinguish which calls had been attribut- able to such customers. Finally, I find it most unlikely that, given Respondent's concern with customer relations. an RSR would be allowed to consistently disregard both the route book and Respon- dent's instructions to service particular accounts. The sim- ple fact is that Respondent's recordkeeping and reporting system is so detailed and so extensive that it appears un- likely that an RSR would be permitted to go for so long a period of time, as is attributed to Morgan, providing such inadequate service. Tangentially. it is also noteworthy that the marks of 74, 78, and 78 on the Field Inspection Report purportedly prepared by Hetherington on November 18. 1975. while below the minimally acceptable 85 score, are not so low as to support Hetherington's ultimate conten- tion that Morgan merited a zero on her annual evaluation. This leads to the testimony in evidence pertaining to Morgan's performance prior to her attendance at the train- ing seminar where she spoke favorably of unionization. Ex- tensive documentation was produced to show that, throughout the course of her employment in San Diego. Morgan had regularly been the poorest RSR in the area. Yet Hetherington conceded that he had been told by Morgan's supervisor in Oklahoma that she had been a sat- isfactory RSR. Indeed, her monthly evaluations rated her as being "Very Good" in December 1974 and January 1975: as being "Satisfactory" in February and March 1975 and as being "Outstanding" in May 1975. her last rating while she worked in Oklahoma City. Additionally, the May 1975 evaluation contains the comment "LuAnn has pro- gressed to the point where she is now one of the top R.S.F.s in the OKC Branch."i 5 It is undisputed that Morgan's first San Diego monthly e valuation rated her as "Satisfactory." True, on October 29. 1975. Morgan did receive a rating of "Unsatisfactory" on her monthly evaluation. Yet examination of this partic- ular form fails to disclose information which would sup- port the zero rating which she was awarded less than I month later. Thus, with regard to the section "Route Cov- erage." Morgan received adverse marks with respect to the conformity of her route books, the locations of her dis- plays. the cleanliness of her displays, the thoroughness of her cleaning job. calling on new accounts, and selling new displays. l he other eight areas in this section are checked as being performed satisfactorily. With regard to the sec- ond section of the form. "Performance." 14 of the items are checked as being satisfactory. A fifteenth item is checked both in the satisfactory and unsatisfactory columns. The comments section of this evaluation discloses that Hether- ington was dissatisfied with the fact that Morgan had failed to include seven new accounts in her route book that had been received recently. that she was not checking her diagrams for proper sequencing of her information bands (although she was checked as having satisfactorily per- formed this facet of her duties in the "Route Coverage" section). and that both stockouts and cleaning were areas in which she needed "much improvement in order to justi- fy future employment." However, the same form also con- tains comments reflecting an optimistic appraisal of Morgan's future prospects. Thus. Hetherington wrote "Lou Ann [sic] works fast & is efficient but cleaning & stockouts are areas of deficiency & must be included in her servicing routine." Further, Hetherington wrote "Lou Ann is fast & a good worker-personal problems. holiday weeks. & sick- 15 The scale of ratings on the monthl, evaluation forms list, choice, )of I()l lsialndilg."' -"er\t (oliid." "Sallnsf.aciors." and "t nsallsfactors," 1 It i brief Reesp.lndent p.linl o.ut that the esa.uation form for April was not produced It,'sccr. I .Ittlh nri, qeliht to Mtorgan's failure to produce this formt She Jlid imt .appel.r rto he iloe istot oirganlzed person and. acc.ordingly. It 1t i/el unilikel Ihat she otuld nol hace retained 1ll of the formts gtien her ,hile she iorked in ()kl.ahomn (i ts, particularls in light of the fact that she h;d nosed halfu.! a. cross the citintrs to- San Diego Moreoser. this hearing clrlnded oler .a 2 mnith period In sie, of Respondent's extenslie record- keepllg f.iCliis's, it seelm, unlihkel thi it s ould have been unable to pro- dilc' the \pril form. a, w ell s a its ,lter [orln frot Oklaho m ai (i. dicloi- rin t ha lrivtn liid reecised pot4r tt mltgs 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness hasn't helped the above but the fact remains that L'eggs quality of service must meet company standards-I am confident Lou Ann can & will correct all deficient ar- eas-a lot of effort has been into correcting standards." Morgan had not attended a training seminar while work- ing in Oklahoma. Less than 3 weeks after this evaluation, she was assigned to a training seminar. Though Hethering- ton denied playing any role in the decision to send her to the seminar, the fact remains that Respondent did make this decision. Presumably it was made on the basis of her overall performance and the same optimistic projection for her future, so long as she was properly trained in the areas where she had grown deficient, as Hetherington's com- ments reflected on her most recent monthly evaluation. Hetherington had prepared "balance notes" for each week, reciting the deficiencies of each of the RSRs whom he supervised. Examination of these balance notes disclos- es that Morgan was the leading offender in the number and types of mistakes during virtually every week that the bal- ance notes were prepared. Yet a detailed examination of these balance-point notes discloses that numbers alone are deceiving. In the first place, Morgan was the least experienced RSR in the San Diego Area, and certainly was the least experi- enced RSR in terms of familiarity with operations under Hetherington's supervision. Accordingly, her lack of expe- rience and her unfamiliarity with Hetherington's method of operations would naturally tend to generate some mis- takes over and above those that would be made by more experienced RSRs familiar with working under Hetherington's supervision. This indeed was borne out by careful analysis of the comments made on the balance- point notes for the period of Morgan's employment in the San Diego area. Notwithstanding the numbering on the notes, some of the comments which bear a single number are, in fact, multiple in nature. By my count of each item singled out for mention on the balance-point notes, Mor- gan made a total of 54 types of errors during the time that she worked under Hetherington's supervision. Of these er- rors, 37 were one-time affairs: they were committed only once and were never again repeated. For example, only once did she list the wrong number of working days on her activity report, only once did she incorrectly total her ex- penses on the activities report. only once did she mislist as m.p.h. rather than m.p.g. on her gasoline report, only once did she seal the cash envelope, only once did she fail to put a display number on the back of a money order, only once did she mislist the number of gallons of gasoline pur- chased, and only once was there a weak mark on her "check deposit" stamp indicating that she needed more ink on her stamp pad. An additional nine types of mistakes were made only twice and, in view of the fact that Hether- ington did not review the balance-point notes with the RSRs until the balance of the following week, it is most likely that an error would be repeated until the following week when brought to the RSR's attention, thereby afford- ing her the opportunity to correct it. For example, on the balance-point notes for September 19 and September 25. 1975, there are comments regarding a disparity between the number of stops and the number of replenishments listed on the RT 500 form. T hereafter, the mistake was not repeated by Morgan. Examination of the types of mistakes made by Morgan when compared to the types of mistakes listed for the other San Diego RSRs (Quigley, Michaels, Sandra Glad, and O'Malley) disclose that similar errors and mistakes were made by these RSRs as well, although not nearly in the same number in certain specific important areas. Nonethe- less, the fact that the errors were made by others, more experienced than Morgan in working under Hetherington's supervision, does indicate that such mistakes do occur. In- deed, Hetherington conceded as much when he testified. For example, Quigley, Hetherington's area trainer and the RSR who trained Morgan to perform her route in the San Diego area, made the following mistakes as listed on Hetherington's balance-point notes: Failure to have the maintenance company sign the maintenance form, mis- computing miles per gallon as 9 rather than 9.6, running out of the proper forms for panties and resorting to outdat- ed forms, failure to have the same date on the RT-95 as on the RT-280, failure to prepare a separate RT-500 when servicing another route, failure to have the same date on the RT-95 as on the RT-280, failing to include the G sales on the RT-500 (thereby submitting incorrect sales on the latter), failure to list the branch address on the RT-95, failure to check the control card against the route book to make certain that they agreed with respect to the number of replenishments, failure to compute the number of A tickets for category I on the transmittal, failure to subtract two units with the result that an excess was shown on the RT-500, failure to complete categories I and 2 on the RT- 300, listing 41 rather than 43 A tickets, failure to include the display number on a customer's credit total, miscopy- ing the number of A sales, failure to list the number of days worked on the RT-500, failure to submit RT 21's for sam- ples, failure to submit a miles per gallon report, mislisting the WH-65, style 401 as 116 rather than 146, failure to sign both WH-65's, failure to submit H tickets, and failure to list correct number of RT-21's, shown on the RT-300. While Morgan was the least experienced employee in the San Diego area, on but a single week of balance-point notes was there significant disparity between the number of notations pertaining to route 35 and the number of nota- tions pertaining to route 37, serviced by RSR Sandra Glad, who had commenced working for Respondent 7 months prior to when Morgan commenced work in the Oklahoma City Area. While seven notations pertained to route 35 during the period ending August 27, 1975, there were five notations pertaining to route 37. For the period ending September 4, 1975, four notations are attributable to route 35 while two notations are attributable to route 37. In the period ending September 11, 1975, route 37 shows 7 nota- tions, while there are 10 notations for route 35. For the period ending September 18, 1975, there are seven nota- tions for route 35 and five for route 37. In the following week. five notations pertained to route 35 and one to route 37, but seven notations were attributable to route 35 during the period ending October 2, 1975, while five were listed for route 37 and, for the following period, route 35 had five notations while route 37 had two. In the period ending October 18, 1975, there was but one notation for route 35 while two notations were listed for route 37 and, in the next period, though route 35 had six notations listed, route 37 had seven notations. Route 35 received one notation for 364 L'EGGS PRODUCTS INCORPORATED the period ending October 25, 1975, and there were no notations listed for route 37. In the following week four notations were listed for route 35 and but one notation was listed for route 37. For the period ending November 6, 1975, route 35 received five notations and route 37 received four, while in the subsequent week route 37 received onis three notations, whereas route 35 received 13, In the final week of Morgan's employment, that of November 20, 1975, there were nine notations listed for route 35, but Glad received eight notations. The most experienced RSR in the San Diego Area was Majo Michaels, who serviced route 36. She had com- menced working for Respondent as an RSR on November 16, 1971, in Atlanta, Georgia, where she worked for 3 years before transferring to the San Diego Area in October 1974. Presumably. therefore, there would be fewer balance-point notations for Michaels than for any other RSR in the San Diego Area. Yet, on only one list of balance-point nota- tions, that of October 25, 1975. did Michaels's performance fail to warrant the inclusion of any comment. Further, on only five occasions did Michaels receive but one notation on the balance-point notes-for the periods September 4. II, 25, and October 18 and 30, 1975. During the remaining periods Michaels received multiple comments, totaling, during some periods, a number very close to the number of balance-point notations attributed to route 35. Thus. for the period ending October 9. 1975. Morgan received 5 and Michaels received 4 notations; for the period ending Octo- ber 23, 1975, Michaels received 5 while Morgan received 6 notations; for the period ending November 6, 1975. Mi- chaels received 4 and Morgan received 5 notations; for the period ending November 13, 1975, Michaels received 8 and Morgan received 13 notations; and, for the period ending November 20, 1975, Morgan received 9 while Michaels re- ceived 6 notations. Many of Michaels' mistakes were similar to those with which Morgan was charged. The balance-point notations for route 36 disclose criticisms of such matters as failure to correctly date the RT 500. failure to fill the gasoline tank before balancing, failure to keep the yellow deletion tickets separate, failure to put a display number on the back of a check, failure to list the branch addition on the RT[ 95. failure to list an inventors figure on the 601 which con- formed to the RT-28, failure to put Safeway stickers on the right side, failure to list the proper sales audit figure, failure to write the display numbers on yellow warehouse copie., legibly, failure to list the samples and total returns on the RT 500, failure to provide the same date on a money order and the ticket, excessive corrections on tickets which should have been corrected while at the customer's prem- ises, incorrectly totalling the number of A tickets, illegible unit totals. transposition of figures. failure to enter invento- ries correctly, failure to list display numbers on B tickets, failure to mark out an incorrect display number above which the correct display number had been listed, failure to list the beginning mileage on the RT 500, failure to list the same number of replenishment stops as stops serviced on the RT-500, failure to subtract excesses leaving an in- correct total of units sold. questions as to whether tires for the van had been ordered, failure to correctly circle dele- tions. omission of the figure 131 on two sheets on the RT 19 SKU, failure to circle proper codes on the RT-20, fail- ure to list a display number on a return ticket on the RT- 20, failure to properly list the status on display, omission of the number 131 on the RT- 19 SKU, and incorrect listings on the R1T-20. During the same period of time that Morgan was en- countering the difficulties which assertedly were the imme- diate causes of her termination, Michaels was also experin- encing difficulties. Thus the balance-point notations for the period ending November 6, 1975, contain the sharply worded admonition for route 36: "All of the Rt 19 SKU were missing inventories-how did you show any subs?-I hope this is the last time we have to talk about entering inventories." On the balance-point notes for the following week, under the eight errors listed for route 36 appears the comment "BAD WEEK BOUT YOUR WORK WAS NEAT." On the day on which Morgan was terminated the balance-point notations for route 36 contained the follow- ing comment: "1. Count this as a written probation-in your folder to be discussed w,,'me." Yet, the more experi- enced. and presumably more knowledgeable, Michaels continued working for Respondent. The balance-point notes do disclose that Morgan was having the greatest difficulty of all of the San Diego Area RSRs. But. considering her relative degree of inexperience in relation to Michaels, Glad, and Quigley--both in period of time working as an RSR and in length of time working in the San Diego area-the balance-point notes do not dis- close that her performance was so far below those of these other RSRs as to support Respondent's defense that she was terminated solely for being the worst RSR whom Re- spondent had ever employed. Furthermore, other factors emerge which are inconsistent with that defense. On the "stockouts and missed call calculation" portion of Morgan's annual evaluation, a zero rating was assigned both for "Missed Calls" and for "Stock Outs." Yet when her record of missed calls is compared with that of other area RSRs. as shown bh a separate document (Respon- dent's IExhibit 34). it is clear that her performance in this regard svas better than that of Quigley, Hetherington's area trainer, and O'1Malley. the RSR whom Hetherington ap- pears to consider to be the best in his area.'6 Compared to Quigley, Morgan missed 8.8 percent while Quigley missed 11.8 percent of the calls during the period ending August 30. 1975: Mlorgaii missed 5 percent and Quigley missed 7.8 percent of the calls during the period ending September 6, 1975; Morgan missed 2.3 pircenll and Quigley missed 4.7 percent of the calls during the period ending September 27. 1975; Morgan missed 6.8 percent and luigley, 7.6 percent of the calls during the period ending October 4, 1975; and, Morgan missed 6.9 percent and Quigley. 4.8 percent of the calls during the period ending October I 11, 1975. Turning to O'Mallec, during only 2 weeks wcre her records of missed calls significantly better than those of Morgan's--the I1 I lking Ih i colmparisoln I hae precluded from consideratlion the 'ig'ics fm Ihc oiceks ending Sepmiriber 13 and 2I) .ind Oclobher 18 and 23 1i7,. In h.le. of the fi, thai t .Ili partull ilformiation wa, concededls taken -i1l, c(itlll. ol llltC , it d[l'l11 , hC (,FIllerni '2 wcek, and ion ioule 3' d!uring to oItci 2i c.ck, SiICe it I I aip.ll ,rthl, C l ierl:li n Uhether the other r-,!t' dulrint Ihc 6 e ' eeks , uffered :l sIm:l.r Inflrminl. I have silipl pre- u icd ,,[ f the'n firn consn, eral , dil r tihefiee 4 rcks. 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD weeks ending August 30, 1975 (when Morgan missed 8.8 percent of her calls and O'Malley missed 2.2 percent of hers) and the week ending October 11, 1975 (when Morgan missed 6.9 percent of her calls and O'Malley missed none). For the period ending August 16, 1975 (Morgan's very first week of employment in the San Diego area), Morgan had missed calls of 8.8 percent and O'Malley had missed calls of 6.6 percent; for the week ending September 6, 1975. Morgan had missed calls of 5 percent and O'Malle' had missed calls of 4.6 percent; for the week ending September 27, 1975. Morgan had missed calls of 2.3 percent and O'Malley had missed calls of 5.6 percent; and for the week ending October 4, 1975, Morgan had missed calls of 6.8 percent and O'Malley had missed calls of 5.8 percent. Other than reciting that when more than 10 percent of an RSRs calls were missed, a minus 5 and an unsatisfactory rating should be assigned to the missed-calls portion of the annual evaluation form, there is no evidence to show how this factor should be computed. Nor did Hetherington ex- plain how the factor was computed so that Morgan re- ceived a zero. The annual evaluation form does, however, disclose the manner by which stockouts are to be computed and lists the minimal percentages which must be attained to achieve ratings of "Outstanding," "Superior," "Good," and "Un- satisfactory." Again, looking at Respondent's Exhibit 34. it is clear that Morgan had a higher degree of stockouts than any other RSR in the San Diego area. Indeed, this factor and her inability to complete her paperwork appear to be the outstanding areas of Morgan's deficiencies during her 3-month stint as an RSR in the San Diego Area. Yet, ac- cording to the annual review form, an unsatisfactory rating is merited whenever an RSR has more than a I-percent figure for stockouts. By examining Respondent's Exhibit 34, it quickly becomes apparent that Michaels, the most experienced RSR in the San Diego area in terms of longev- ity of employment, also was unsatisfactory in this area. During only 4 weeks of the I -week period, from August 16 through October 25, 1975, covered by Respondent's Ex- hibit 34, did Michaels have less than I-percent stockouts (although no percentage is computed on Resp. Exh. 34 for the week ending August 23, 1975). During the remaining 5 weeks of this period, Michaels' stockouts ranged from 1.16 percent to 2.67 percent, and it is noteworthy that during the week ending October 25, 1975, while her stockouts fell below the I--percent rating, she did achieve a .91-percent stockout rating. While less than I percent of her calls during this period may have resulted in stockouts, Area I rainer Quigley's fig- ure for this same period would appear to be very close to the I percent level (.75 percent. 1.68 percent, 1.63 percent, .59 percent, .90 percent, .82 percent, .75 percent, 1 I.1 per- cent, and 1.16 percent). At no point did she have less than .59 percent stockouts and, on two occasions, her stockouts exceeded 1.60 percent. Glad, most clearly, performed un- satisfactorily in this area during the I -week period from August 16 through October 25, 1975, as her 2 good weeks of .55 and .86 percent were clearly balanced out by the remaining weeks of the period in which she derived 1.15 percent, 1.32 percent, 1.28 percent, 1.34 percent, 1.68 per- cent, 1.93 percent, 1.44 percent, and 1.43 percent. It is clear that Morgan was the poorest performer among the RSRs in the San Diego area during this period, with respect to stockouts. However, it is also clear that the more experienced RSRs were also performing at or near the un- satisfactory level, with the result that Morgan's perfor- mance in this area is not necessarily so onerous as Respon- dent seeks to portray. Moreover, Respondent concedes that during the first 6-week period, Morgan could have not have been held responsible for the stockouts on her route in view of the fact that under Respondent's service cycle, it takes 6 weeks to make a complete cycle of the route in order to service all stores. Accordingly, the stockouts dur- ing this period would have been attributable to Morgan's predecessor. Furthermore, it would seem that it might well take 12 weeks for an RSR to achieve the point where she could be held responsible for stockouts on the route. This results from the fact that an RSR would have no way of knowing on her first service cycle whether the stockouts which she discovered were the result of her predecessor's deficiencies in servicing the boutiques (bearing in mind Hetherington's comment to Morgan, when she was hired, that the route was in poor condition), or of the fact that certain products were selling at a higher rate than would satisfy the number of such items listed in the route book. Only upon replenishing the display in conformity with the route book and then on discovering a stockout on the sub- sequent visit would it become clearly apparent that the number of such items would have to be adjusted to place more on the boutique. There is other documentation which, while introduced to enhance Respondent's defense, has the effect of diminish- ing it. For example. Weekly Error Recap forms were pro- duced for the periods September 20 and October 4, 1975, showing that the Georgia data processing center had found more errors on Morgan's paperwork than on the paper- work of all other RSRs in the Buena Park District. Indeed, all 13 errors on the September 20, 1975, recap were ones attributable to route 35. Two points, however, are signifi- cant, regarding the recaps. First, while there are errors made by Morgan, they appear on paperwork which should have been checked and corrected by Hetherington prior to submission to Atlanta. Consequently, to that extent re- sponsibility for this submission in erroneous form is shared by Hetherington. Secondly, Hetherington testified incon- sistently with respect to subsequent recap forms. On cross- examination, when asked if there were recap forms for any weeks subsequent to October 4, 1975. wherein Morgan was shown as having made errors, Hetherington responded "there possibly may have been. I am not sure," and "if there were-I don't recall any, no." Asked essentially the same question on redirect examination, however, Hether- ington responded that there had been subsequent recaps on which there were errors attributable to Morgan's route and. when asked how many on an average in the weeks thereaf- ter, he testified "1 don't know. Anywhere from one to maybe three or four." Nevertheless, no such recap reports were introduced to support that assertion, which leaves one of two inferences possible: Either no such recaps existed or, as was the case with the missed calls, the introduction of recaps for subsequent periods would disclose that other RSRs garnered an equal or greater number of errors on the 366 L'EGGS PRODUCTS INCORPORATED recaps for those weeks. A second set of documents was prepared by Morgan. and pertained to the problems which she was encountering with stockouts. Hetherington testified that when it became apparent that Morgan was experiencing difficulties in this area. "I told her to make up a list for me each week when she came in that balance day listing the number of stores she went into that there were stockouts and she did not do the standard change and the reason why she didn't do the standard change." 17 Hetherington testified that this had been the only occasion when he had ever been forced to direct an RSR to do this. Yet when these documents were produced, there were none for the period between Octobei 9 and November 8, 1975. When the absence of reports for this period was brought to Hetherington's attention he ap- peared somewhat puzzled. testifying in an unconvincing fashion that Morgan failed to follow his direction during this period. Yet I have some doubt that a supervisor, con- fronted with a problem of the magnitude which Hethering- ton sought to portray Morgan as posing, would simplN ig- nore and make no comment about an employee's outright refusal to submit reports which she had been specifically directed to prepare. Moreover, having once disregarded Hetherington's instructions, there would seem to be no rea- son for Morgan to have suddenly resumed submitting these documents on November 8, 1975. absent some explanation other than outright insubordination. In October 1975. an audit was conducted at the South- ern California or Buena Park District, part of which in- volved an inspection of the displays of randomly selected boutiques. Five displays each were selected from the routes of Morgan, Quigley, and O'Malley. An additional eight displays were inspected on route 28, which is not in the San Diego Area. Of the boutiques from the San Diego Area which were inspected, Morgan's ratings were clearlv the lowest, though, as is true in other areas, her ratings of 74. 76, 80, 80. and 85, are not so low as to support the zero rating which she ultimately received on her annual evalua- tion. Significantly, however, in the area of cleanliness. route 35 accounted for 52 percent of the points taken off from all 23 displays inspected. Hardy testified that when he received this report approximately October 18 or 19. 1975. he had been highly disturbed and disgusted by the absence of cleanliness indicated by the auditor's ratings of route 35 displays. Thus he testified that he sent a copy of the entire Branch Operations Review to Hetherington with a note which read: Gary, although the overall score on the audit was 88 percent, there is a serious problem with display clean- liness. This score was 73 percent, which is unaccept- able. Please note the extremely poor cleanliness scores on route 35 especially. Her score was approximately 52 percent. which is totally unacceptable. Let's discuss when I'm in S. Diego on the 23rd. Both Hardy and Hetherington testified that then did meet on October 23, 1975. Both testified that the) had discussed Morgan's performance and the fact that she had been per- ' The "standard change" was a process wherebh Ihe RSR u.uldi cill. lt in her route hbook the number of items of stock which had hecome depltied. thereb) increasing the number of suth items .ried on the h outique forming inadequately in mans areas. Both also testified that their conversation had culminated with Hards sug- gesting that Hetherington begin looking for a replacement for Morgan in the event that her performance did not im- prove quickly. Ehere ,were. howeer, two difficulties with this sequence as related by Hetherington and Hard,. Hetherington testified that during the conversation "We also discussed the additional problems I had been having with her that I had reported to him in my activit) reports about her paperwork." Yet no such activity reports were produced, in contrast to the situation with Sue Smith. as will be discussed infra. wherein a series of activit, rcports were introduced pertaining to the supervision of Jackie Wade. It is of course well settled that by failing to produce such reports an inference is raised that the activity' reports would not support Hetherington's testimony. ('oorflo De- corator Products, Inc.. 228 NLRB 408. 410, 417 (1977). The second matter pertains to the document which is quoted above that Hardy purportedly sent to Hetherington with the Branch Operations Review. The document states "Date-10/17/76" (emphasis supplied). This is the second document in this case which is questionable (the first, of course, being the one by Hetherington reproduced in Ap- pendix A), for when it was pointed out to Hardy that the date was a year later then the actual events to which he was testifying, his onls explanation was that the date "76" was "an obvious error." In its brief, Respondent urges that er- rors as to dates abound in this proceeding, citing as exam- ples the Deputy Chief Administrative Law Judge's tele- gram of December 14, 1976. extending the time for filing briefs until "Januar' 31. 1976." and Respondent's coun- sel's own experiences in listing the month on a check as "July" when in fact the check had been written in "Janu- ar,." Yet the telegram of the Deputy Chief Administrative Law Judge illustrates the normal situation where force of habit causes delay in adjusting to a change in year, due to the habit of writing the year which has recently expired. A quite contrary situation is presented by the Hardy memo, which anticipates the new year by almost 4 months a highly unusual course of conduct, and one which casts sus- picion on this memo: suspicion only compounded hb other paperwork submitted by Respondent in this proceeding. including Hetherington's purported notations of Novem- ber 14. 1975. Cleaning does appear to have been an area where Mor- gan was experiencing difficulty. However. as In other areas, there is doubt as to whether her difficulties reached the magnitude described by Respondent. When she ,as first hired in San Diego. Morgan was given a list of displays which needed deep cleaning. She estimated that approxi- mately 40 percent of her displays were in the downtown San Diego area. where displays tended to get dirtier, and that while she did not deep clean every display on her route, she had cleaned the majority, including all of the displays on the list by the time that she was terminated. tletherington estimated that onlN approximately one-fifth of Morgan's displass were in the downtown San Diego area. " and that onl' approximatelx one-third of the 13 ' Recentl t1n,11it, re! eC.Ied h1, the I Ct'cr.sl (ioernment I1lt Smil I !t'tI' . 1 lIh IIl lh el , isl Il [h, I til'edt t.altes rio poin *t i icllhil e io lX I. 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD displays which he had assigned her to deep clean when she was hired were located in the downtown area. Of those 13 displays, Hetherington testified, only 4 or 5 were ever deep cleaned by Morgan and 2 of those had been ones which he had helped her deep clean. As was true in other areas, there were several infirmities in this facet of Hetherington's testi- mony. First, he contended that Morgan's "geographical area was pretty consolidated except she did go across the bridge to Coronado. That was the only thing that was out of the way so to speak," thereby lending support to Morgan's testimony that she spent approximately 2 days per week servicing downtown customers. Second. when asked to identify the stores which Morgan had been as- signed to deep clean when she initially had been hired, Hetherington evaded and was unable to do so: "Specifical- ly, I can't remember the specific stores I gave her at the time.": "There may have been a Central Market. I believe that may have been in Coronado. I just recall that it seemed to have been dirty and it may have been on the list, but I couldn't be positive."; "I am sure there may have been some on University. I am not positive." Third, despite the fury over the condition of the route once Morgan be- gan servicing it, there is no dispute that her predecessor had left the route in that condition. Yet her predecessor was neither terminated nor, so far as the record discloses, even warned about a failure of the route to satisfy Respon- dent's standard for cleanliness. Finally, route 35 was taken over by Sue Pierce, who rendered the following description of its conditions: "Well, it wasn't clean. It wasn't real bad, but it could have been better, and most of the information bands on the displays were wrong. There were a lot of stockouts and I guess that is it mostly." At no point did Pierce single out cleanliness as being a significant defect on the route at the time that she commenced servicing it. Indeed, Hetherington's own testimony provides some support for the conclusion that, by the time of her termina- tion, Morgan had either begun correcting her problem with maintaining the cleanliness of displays or, alternatively, the problem was never of the magnitude which Respondent now seeks to depict. On November 18, 1975, Hetherington visited three stores and filled out Field Inspection Reports at each one of them. At the Safeway store on Grape, Heth-- erington described the display as being "obviously dirty in each area" and deducted 14 of 27 possible points for the cleanliness of that display. However, at the Safeway store on Orange he deducted only four points, describing that boutique as being "relatively clean." With respect to the display at Central Drug, Hetherington testified "the dis- play was in good shape as far as the cleanliness" and in- deed, he deducted but three points for the cleanliness of the display at that store. Thus, of a possible total of 81 points which Morgan could have lost for cleanliness of the three displays inspected on that day--after tletherington had become aware of her union activities--only 21 points were deducted, two-thirds of which were lost as a result of a single display. The final document in connection with the termination Ilodue I: nap so Ihat the limits of the diownsitown Saln i)iego area could he dclinc;led wih spebcifcity h5 either Morgan or llethclrilngion of Morgan is a compilation of results of a contest conduct- ed by Hetherington from the beginning of October until November 14, 1975. The document itself shows only total figures as discussed above. None of the documents, notes, or records from which Hetherington compiled these figures were produced at the hearing. The compilation was pre- pared after Hetherington had become aware of Morgan's comments regarding the need for unionization of the RSRs and after he had admitted to O'Malley that his superiors had instructed him to find a reason for terminating Mor- gan. Moreover, while he acknowledged that at the end of October Morgan had sought to withdraw from the contest, a request to which he acceded, and although the contest continued for 2 weeks thereafter, Hetherington nonetheless saw fit to continue maintaining records on Morgan follow- ing her withdrawal and to prepare a chart which included her as one of the participants in the contest. No explana- tion was advanced for his continuing to do so. 4. Conclusion Throughout this proceeding. Respondent advanced the defense that Morgan had been so lacking in ability and effort that her overall work performance merited a flat zero on her annual appraisal. Yet, while the documentation proffered to support that defense does show that Morgan was having difficulty, it fails to demonstrate that her work was so bad and so far inferior to that of the other, more experienced, RSRs as to warrant the zero rating which Hetherington ultimately assigned to her. Indeed, a zero rat- ing is so far below the normal annual ratings which RSRs receive, as described by Respondent's witnesses, that it seems highly unlikely that such a low degree of work per- formance would have been tolerated and the RSR involved permitted to continue performing at such an atrocious level until a numerical rating could be assigned to her work on an Annual Performance Appraisal. Yet Respondent did re- tain Morgan. Moreover, notwithstanding Hardy's and Hetherington's testimony about an October 1975 discus- sion concerning a replacement, no apparent effort was made to even begin seeking a replacement for Morgan un- til after her comments at the seminar came to Respon- dent's attention. In fact, it is this very seminar which confirms the point that analysis of Respondent's documentation seems to dis- close: Morgan was performing below average in many ar- eas, but was not so poor as to merit separation, and her improvement in some areas would appear to indicate that, properly trained, her more-than-adequate level of perfor- mance in Oklahoma City might well be renewed in San I)iego, particularly as she had never attended such a semi- nar while employed in the Oklahoma City Area. Accord- ingly, Respondent did not terminate her. Instead, it at- tempted to train her so that her work could be improved. However, while at the seminar, she made comments re- garding unionization of the RSRs, reminiscent of her earli- er balance-point comments concerning the merits of unions. Only this time she displayed a favorable attitude toward the idea of representation. When these comments were brought to Respondent's attention, Hetherington was instructed to find a basis for terminating Morgan, and 368 L'EGGS PRODUCTS INCORPORATED thereafter a series of documents were generated notations of customer calls, a Field Inspection Report, a compilation of figures showing contest results, and an Annual Perfor- mance Appraisal-which collectively could be used to sup- port a defense of lawful motivation for her termination. So cleverly did Respondent conceal its true motivation that even Morgan was not aware that it had been her comment at the seminar luncheon that had occasioned her termina- tion, as illustrated by her acceptance of the reasons ad- vanced to her by Hetherington for her termination. Then. when Respondent's subsequent conduct led to the filing of unfair labor practice charges, and Morgan's name was brought to the fore, Respondent assembled the documenta- tion which had led to the decision to send Morgan to the training seminar and, ignoring the fact that her termination occurred within a week of the seminar and without any opportunity being afforded to ascertain if the training would improve her performance. advanced that documen- tation as a part of the reason for the decision to terminate Morgan. Therefore, I find that the timing of the termination, the haste with which the termination was effectuated, the knowledge of the comments made by Morgan at the train- ing seminar luncheon and of her participation in the earlier balance-point conversation regarding unionization, the comments made by Manning in Bolt's presence, Manning's admission that she had related Hungate's comments to Hetherington, the statements which Hetherington made to O'Malley during the telephone conversation of Sunday, November 16, 1975, as well as the concern which Hether- ington displayed during his earlier telephone conversation with Potter regarding Morgan's comments at the balance point, and the numerous inconsistencies and infirmities in the documentation proffered to support Respondent's de- fense, as well as the fact that the documentation clearly does not support an assertion that Morgan's performance was so inferior to that of the other RSRs in her area as to be totally meritless, all indicate that Morgan was terminat- ed because of her expression of sympathy for unionization of Respondent's RSRs, and that her discharge violated Section 8(a)(3) and (I) of the Act. B. The Area Managers' Meetings WU'ith the RSRs 1. Background Respondent conceded that on January 21 it had received from the Union a letter stating that 13 named RSRs "9 were engaging "in an organizing program to obtain a union con- tract." Though Schwaegler's initial reaction had been to forward the letter, unopened. to Respondent's Winston- Salem headquarters, Region Secretary Beverly Bolt per- suaded him to open the letter and examine it when she discovered that signatures appeared on the enclosed letter when the envelope was held up to the light. Upon reading the letter, Schwaegler immediately telephoned Director of VU Fhe signatures of the following RSRs appeared oin the letter: .irke Wade. ( arol Washington. L inda Rehmallnn Karen )ill. Rita (imr.ies. ld Crouch. Nancs Schmidt. Sandra (lad, Ma .o Michael, .Jonnie I im;an, 1)i ane (;etcheld (eri Quigle'. and Kris Hughes Field Personnel LeMonde Price in Winston-Salem. 20 On the following morning Price discussed what Schwae- gler had reported to him with Vice President of Employee Relations Robert Radcliffe. Vice President of Sales and Distribution William Caldwell, and Senior Vice President in Charge of Sales and Distribution and International Op- erations Robert M. Engle. At that point in time a national sales meeting of all sales and distribution region managers, region distribution managers and district managers from field sales and distribution operations, was scheduled to commence in Puerto Rico during the weekend. All four of these Winston-Salem officials were slated to attend that meeting, as were Schwaegler and Hardy. However, as a result of their discussions on the morning of January 22, it was decided that Schwaegler and Hardy would be directed to remain in Buena Park where they would be joined by the four Winston-Salem officials, who left that same af- ternoon. With regard to the purpose for this trip and the events which followed. Radcliffe stated: We felt that there was something much deeper than the fact of those employees. That obviously was some- thing that was serious, but we wanted to go out and assess what the managerial relations were, do a com- plete audit, assess what the operational problems, if any., were: to assess the supervisory employee rela- tions. to come up to the best of our ability with an assessment of what would cause the thirteen to consid- er the fact that they' needed some kind of outside rep- resentation. Accordingly. Radcliffe depicted the trip as being one de- signed to examine Respondent's operations in order to lo- cate facets that might lead to dissatisfaction. As testified to by Respondent's witnesses. the procedure followed for implementing this objective had been for the Winston-Salem officials, joined by Schwaegler, to meet separately with Hard,. each of the area managers (Gary Hetherington. Susan KI. Smith, Deanna Manning, and She- ryl Johnson)., Warehouse Manager John Batty, Regional Trainer Jenny Andrews. and Distribution Manager Craig Weightman. At each of these meetings, testified Senior Vice President in Charge of Sales and Distribution and International Operations Engle: We wanted to review with them first of all whether they had any problems with any procedures, opera- tional things, things that might be emanating from Winston-Salem that was causing these problems. things that might be happening in Buena Park that would be causing these problems. We wanted to tr's to evaluate with each one their interrelationship with the supervisory group in the in the Buena Park operation. And then we wanted to find out four things, as I recall, from them. The first was if the' knew of an' union acti its: secondly, what they thought about their RSR's and how they fit into any union activity or union leanings. anything that they knew about that. :' ,\ uill he dli,,ull ed intril. Slouthern (aliforlll I)islrlctl Salles a1nairiger I e tn I lalrd. uho i ,' pre.rsnt .hCn Sch a.rlegler opened the Ietlir. Inlmr- haie;k rlaced .t 1id on 1 he d ,ish.arge of \ad, e which ae .,ssericell ,hhe - ulcd [o he cffecilllaled on1 t h , rhxr g d:1 369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Then next, we wanted to get their opinion about where we stood if we were going to have an election the next day. And then we were going to show each one of them the letter we had received from Retail Clerks, get their reaction to that, and see how their opinion was after they saw that. Yet, the descriptions of these meetings disclosed a number of contradictions and inconsistencies, leaving a decided impression that the Winston-Salem officials were only nominally concerned with operational problems and were, instead, interested in the extent and source of the Union's support among the RSRs. At the meeting with Hardy, testified Respondent's offi- cials, both Hardy and Schwaegler were asked if they were aware of any operational, managerial, or supervisorial problems that had led the 13 RSRs to seek representation. According to Radcliffe, Price, and Engle, Hardy had re- sponded by describing a December 1975 meeting which he had attended with three RSRs from the San Fernando Val- ley.2' Thus Engle testified, "and as I recall, the things they were upset about was the number of stops they had, stick- ering which had been brought about as a result of our abandoning fair trade, and that that had caused additional work load." However, neither Hardy, the purported speak- er, nor Schwaegler made any mention of the San Fernando Valley meeting having been discussed with the Winston- Salem officials that morning. All did agree that Hardy had detailed the asserted inadequacies of Wade's performance and the purported decision to terminate her on January 22, aborted by receipt of the Union's letter, but Schwaegler testified, "I think the first decision was made on the 6th of January to terminate her." Moreover, on cross-examina- tion, Radcliffe conceded the accuracy of his pretrial affida- vit, stating that during this meeting: We [the corporate officials] asked Schwaegler and Hardy their opinions relative to each and every route sales representative including individuals named in the letter, as to whether that individual would favor the Union or the Company if it came down to that [as far as those who had signed the letter] why they had done so. Yet he made no mention of this portion of that meeting during his description on direct examination. Nor did any other participant at the meeting mention this portion of that meeting. It was a facet of this particular meeting that was treated by Respondent's witnesses as a nonevent, not- withstanding Radcliffe's earlier concession. After the meeting with Hardy, the Winston-Salem offi- cials and Schwaegler went to a motel suite where they were given a list of RSRs, prepared by Schwaegler, with aster- isks placed by the names of those who had signed the let- ter. The first area manager with whom the Winston-Salem officials and Schwaegler met that morning was Hethering- ton. Radcliffe testified, "well, when Gary first got there, we 1N will he discussed in somewhat greater detail infra, in December 1975. as a result of complaints from the RSRs Hlard) met with Washington, Rehmann. and tVade at Smith's apartment. where there was a discussion of matters which the three RSRs construed to he causing problems on their roultes and with their work performance. told him that the purpose of the meeting was-that it was apparent or it seemed that there was a union organizing campaign there in the Southern California area, and that we had come out to assess the situation." This was con- firmed by Engle, who testified "we told him at the outset that we had reason to believe that there was union activi- ties within the Buena Park operation, and asked him to tell us what he knew about that." This was controverted by Hetherington, who testified that it had not been until later in the meeting that Radcliffe had told him "that he had reason to believe that there were girls in the Buena Park branch who were in fact interested in union representa- tion." This was but the first of a series of conflicts among Respondent's witnesses regarding the substance of this meeting. While all agreed that the meeting had begun with Heth- erington being asked if he had any operational, manage- rial, or supervisorial problems, Radcliffe testified that Hetherington had said that he had none and, specifically, that in the operational area, matters such as responses from the warehouse and proper receipt of product were basically satisfactory. Essentially confirming this was Hetherington, who testified that in reponse he had said that the only complaints which he had ever heard were those arising from heavier workloads during the holiday season and complaints regarding being paid less than drivers for other companies. Engle, however, testified that Hetherington had complained about the dissatisfaction being caused among his RSRs when the transfer truck brought incorrect orders to his San Diego loading area: "And he was saying that the orders were coming down incorrectly. They were not being pulled out of the warehouse correctly to load the girls in his loading area." The conflicts in the various descriptions of this meeting did not end here. Radcliffe testified that he had then gone down the list of RSRs, asking for Hetherington's opinion of the sentiments of each named RSR "in regard to a union and/or in regard to the company," with Hetherington then being asked for his reasons whenever he identified a particular RSR as a likely union supporter. Engle corroborated Radcliffe that all RSR's names were advanced to each area manager for the latter to express an opinion on their union sentiments. But, Engle also claimed that with respect to the RSRs whom Hetherington supervised, Respondent's officials had sought greater detail such as "who they were married to, or who are they living with, and what's their general attitude and what did they do before they came to work for us." Such questioning was not even mentioned by Radcliffe and although Schwaegler did support Engle's version of the questions directed to Hetherington regarding the RSRs, this testimony was then undermined by Hetherington, who asserted that Radcliffe had first asked him to list the RSRs whom he supervised and had then inquired, merely, "out of those girls, if a vote was to be held for the union-for the union-to be represented by a union, which of the girls would vote which way?" In testifying, Hetherington made no mention of having been asked about RSRs supervised by other area managers. Nor did he make any reference to having been interrogated concerning his reasons for listing RSRs as being sympathetic to the Union. To the contrary, he testified that he had initially told Radcliffe that he did 370 L'EGGS PRODUCTS INCORPORATED not think that any of the RSRs whom he supervised would be interested in representation-a fact corroborated by Schwaegler, who testified that he did not recall Hethering- ton having identified any of the RSRs whom he supervised as being prounion. Yet another conflict arose as a result of Hetherington's recitation that after having been asked how he felt his RSRs would vote in an election, he had been told that he supervised three RSRs who had signed a letter supporting the Union and had been asked if he could guess who the) might be. He testified that he had replied that he was un- able to do so, but when pressed on the matter had then identified Michaels, Glad, and Quigley as possibilities. Told that he was in fact correct, testified Hetherington, he was then asked why he had selected those three RSRs, after which he had explained his reasons, saying that Mi- chaels was "the type who would go along with anything that kind of changes the stream of things," that Glad would join Michaels out of friendship, and that Quigley had mentioned being paid less than other vendors. Hether- ington specifically denied that he had been shown the letter which Respondent had received from the Union on Janu- ary 21 and further denied that he had been told the names of any RSRs who had signed that letter other than the three whom he supervised. Yet both Engle and Radcliffe testified that they had shown the letter to Hetherington, and both further testified that after doing so, Hetherington had been asked if he still believed that Respondent would win an election should one be conducted, to which Hether- ington responded that he did believe that Respondent would prevail. They made no mention of Hetherington being interrogated about the possible reasons for the sup- port extended to the Union by the three RSRs whom he supervised. The confusion among Respondent's witnesses as to pre- cisely what had been said during the Winston-Salem offi- cials' meetings that day was not confined to the meeting with Hetherington. Smith testified that when Engle had inquired if she had any problems, she had described the events leading to the December 31, 1975, meeting, explain- ing the evolution and status of the problems which had arisen, and either at that point or at some subsequent point during the meeting, had detailed her purported problems with Wade. Both Radcliffe and Engle corroborated her tes- timony in this respect. However, neither Smith nor Rad- cliffe nor Engle made any mention of Smith complaining about any other facet of Respondent's operations. Schwae- gler, however, testified that "she had some problems with the computer report that determines the loads and the in- ventory. She said the data in it for some reason or another was not totally accurate, and therefore she was receiving some strange orders for her girls." Schwaegler also testified that with respect to the point in the meeting where Smith had been asked about the RSRs individually, she had been interrogated about such matters as where each RSR lived, whether each RSR was married, and how Smith would evaluate the performance of each RSR, in addition to being asked whether the RSR was prounion or would be procompany. Other than with regard to the latter question, concerning the union sympathies of the RSRs, no other witness who had been present at this meeting corroborated Schwaegler's testimony regarding the additional questions which he asserted had been put to Smith. While Radcliffe testified, consistent with his description of the meeting with Hetherington, that he had reviewed the names of each RSR on the master list provided by Schwae- gler with Smith, Smith testified that she had been asked, by Engle, simply which RSRs would be prounion or procom- pany and that she had "ticked off" the names mentally in response. Moreover, though Smith testified that once shown the Union's letter, she had said that she could un- derstand how Wade, Rehmann, and Washington would have signed, but was shocked that Getchel, Lisman. and Schmidt had signed it, no other witnesses corroborated her testimony concerning the assertion that she had displayed shock at seeing the latter three names. However, both Rad- cliffe and Engle did testify that Manning had expressed surprise, when shown the letter. at seeing the signature of Kris Hughes. This was flatly contradicted by Manning, who testified that when she had been asked if any RSRs in her area were experiencing problems which might lead them to support unionization, she had replied "that there as only one girl who might be in favor of it, and that would be Kris Hughes." 22 In contrast to the assertions of Respondent's officials throughout with regard to these meetings, Manning further testified that she had not been shown the letter received from the Union on January 21. More significantly. Rad- cliffe testified that when he had initially\ inquired if Man- ning was experiencing any problems, the latter had replied by describing one or two problems relating to herself and her difficulties with her supervisor But Radcliffe described these as not being "relevant to the organizing situation." Engle initially testified that Manning had responded that she did have some problems, but other than the fact that she felt that a lack of communication existed in the branch, he was unable to "recall specifics" and testified that the problem existed between the warehouse manager and the area managers. While he testified that he had made a nota- tion regarding Manning's comments for further discussion, there is no evidence that the matter was ever pursued, so far as Engle was concerned. Engle's vagueness on this point became even more pronounced on cross-examina- tion, when he testified that Manning had described gener- ally a problem within the Buena Park Branch, that she had expressed the feeling that there was confusion between di- rection given locally and that emanating from Winston- Salem, and that she had been compelled to telephone Win- ston-Salem for clarification of a matter which she should have been able to obtain in Buena Park. He further testi- fied that Manning had said she was having problems with the warehouse manager in the sense that "it was the pulling of orders that was for some of her out routes." However. Manning testified that when Radcliffe had inquired if she had any operational problems, "I told them that I had been working on a reroute of Las Vegas, that I had a couple of - I his confhcl is partitularl' pertinent. for Manning testified that Bevcr- 1I Boll had preolousl,, disclosed to her that Iughes had signed the letter. but that she had not disulcd Bolt', djschloure to ReKpondcnt's offclials A will he seen, onte Af Re.plndenl'> defclnee to Bolt', terminition w.s thatl Boll had been dlxI rilz conlfidnllil i i tnformln on .ind this te0tlilOll\ h' tMannin "a;s ad. .lanccdi t, lpp r li that defense 371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD routes that had had increased sales and were approaching the heavy side, and that I was working on the routing of those; but that all in all, things were running smoothly." The vagueness of Engle's testimony and the conflict among Respondent's witnesses concerning the subject of Manning's problems is most suspicious, for the purposes of the Winston-Salem officials' journey to Buena Park pur- portedly had been to ascertain if operational, managerial. or supervisorial problems existed. If true, this would surely have been the one subject to which they would have been most attentive and concerning which their accounts would have been most precise. Yet, the testimony here is vague and indefinite. During the meeting with Johnson, Radcliffe testified that he had reviewed the names of the RSRs from the mas- ter list which Schwaegler had prepared and that Johnson had given her views as to the sympathies of each of those people, after which he had shown her the letter received on January 21, and had again asked her opinion as to whether she still believed Respondent would win an election were one to be conducted. Johnson, however, testified that the meeting had opened with Radcliffe asking her if there were any problems and that it was not until after she had ex- pressed the view that the smaller routes created by the July 1975 rerouting had made everyone seem appreciative and had left only the stickering as a problem, that the subject of the Union had arisen. She'd further testified that Radcliffe had asked her to think of the RSRs whom she supervised and to reflect upon whether any of them had problems that might lead them to support unionization. She testified that she did as asked by naming each of her RSRs and express- ing the conclusion that only Gaines, Weller, and Dill might be favorably disposed toward representation, indicating her reasons why she believed this to be true of each one. It was then, she testified, that Radcliffe disclosed that Re- spondent received a letter which had been signed by three of the RSRs whom she supervised: Gaines, Crouch, and Dill. This sequence, however, conflicted with the testimony of Engle, who asserted that Johnson had said that she did not think that any of the RSRs whom she supervised would be interested in a union and further that Johnson had ex- pressed surprise when she had seen Dill's name on the let- ter. Moreover, contrary to Radcliffe's testimony, Johnson specifically denied, at three points, that the names of any RSRs other than the ones whom she supervised had been mentioned during the course of her meeting with the Win- ston-Salem officials and Schwaegler. The testimony regarding the meeting with Warehouse Manager Jchn Batty was reminiscent of the conflicts which arose in the testimony concerning the meeting with Hether- ington. Radcliffe testified that Batty had been summoned to the meeting because he was responsible for distribution of inventory to the RSRs, with the result that his assess- ment of operational problems might be helpful. However. testified Radcliffe, when asked if there were any manage- ment or operational problems, Batty had responded that he had no such problems, except for warehouseman John Kel- ly, whose unsatisfactory performance Batty then detailed, leading Engle to become upset and question why Batty was still employed. Price corroborated Radcliffe, testifying that there had been a discussion with Batty of Kelly's perfor- mance, but Price added that he had not paid that much attention to the discussion, since Kelly was neither an RSR nor, so far as Respondent was aware, involved in any union activity. Engle, however, conceded that operational problems were posed by the manner in which Batty assert- edly described Kelly's performance of his duties. For ex- ample, Kelly's inability to pull orders correctly led to insuf- ficient product in his van when he arrived at the balance point to load the product into RSRs' vans, and, additional- ly, Batty purportedly complained of Kelly becoming lost while en route to balance points, notwithstanding the fact that he had been to these locations previously. "I recog- nized this as the source of, uh, possible source of some of our problems," testified Engle. So also apparently did Bat- ty, for he testified that he had told the assembled manage- ment officials that the RSRs were hesitant to have Kelly pull stock or inventory, because they had to doublecheck or triple check everything that he did, with the result that it always took more time than when Potter was doing the same type of work for them, thereby compelling them to spend more time at the balance point than would ordinari- ly be necessary. Consequently, the testimony of Engle and Batty direct- ly controvert those of Radcliffe and Price with respect to the operational problems raised by John Kelly's purported performance. Moreover, in direct conflict with Respon- dent's Winston-Salem officials, Batty testified that when asked, he had listed a series of operational problems: That the absence of stock of certain sizes and colors of product tended to put an extra burden on the RSRs because they would be short of those products; that the RSRs constantly had to return to reload inventory on their vans, due to the inadequacy of the van inventory reporting form used by Respondent; that the need to sticker individual products because of the change in the fair trade law was causing difficulties for the RSRs; and that the excessive number of timed stops which must be serviced before noon in the San Fernando Valley was rendering it virtually impossible for the RSRs there to service their routes each day as sched- uled without missing customers. Radcliffe flatly denied that there had been any discus- sion of specific RSRs, in relationship to problems that they might be having, during the meeting with Batty. However, Batty testified that he had been asked to relate any prob- lems which specifically named RSRs were encountering, and further, after an extraordinary amount of vacillation and evasion, that he either had been directly asked about the union sympathies of specifically named RSRs or had been asked questions which led him to conclude that Re- spondent's officials were seeking to ascertain whether spe- cifically named RSRs might favor representation. Note- worthy in this respect is the game of foxes and hounds pursued by Schwaegler when interrogated on this point. Initially he volunteered "I think there was some reference to some RSRs along the line-but I don't think-it wasn't extensive, obviously, but I think there was some reference to some RSRs." Aware that what he was saying conflicted with the testimony of Radcliffe, his superior, he then testi- fied that he did not recall the circumstances under which the references to specifically named RSRs had been made, adding, "I don't think there were any real names of indi- 372 L'EGGS PRODUCTS INCORPORATED viduals brought out. I think it was strictly an operational thing where he [Batty] said he was having some problems with some of the girls." 23 He finally testified that he did not recall any of the names that had been mentioned. En- gle, however, did corroborate Batty's assertion that names had been mentioned. While he testified that he did not believe Radcliffe had reviewed the entire list of employees' names in speaking with Batty, "I think he did mention other names to see whether Kelly had any-Batty had any reaction to them." On the following morning, January 24, Schwaegler. Har- dy, and the four area managers met with the Winston-Sa- lem officials. Radcliffe announced that he wanted each area manager to conduct individual meetings with the RSRs whom he or she supervised, at which each RSR was to be advised of a nationwide increase 24 and was to be told of Respondent's awareness of the organizational campaign. According to Respondent's witnesses, Radcliffe cautioned the management personnel in attendance not to interro- gate, not to threaten, not to engage in surveillance, and not to coerce RSRs. Yet based largely upon the conversations which took place during the first 4 days of the following week, the General Counsel alleges that all four area man- agers, as well as Hardy, did, in fact, engage in such con- duct. 2. The area managers' meetings with the RSRs The area managers testified that they had strictly ob- served the instructions imparted by Radcliffe and Price at the January 24 meeting during their conversations with the RSRs. In fact, Johnson testified that due to Radcliffe's em- phasis on following his instructions, she had prepared a mental outline of points to be covered when she spoke with the RSRs whom she supervised and had followed that pre- sentation during each of her meetings. Thus, she testified that she had begun by saying that Respondent was aware of interest being shown in the Union; that her reason for the meeting was to convey Respondent's viewpoint that it felt it did not need a third party and would do everything legally possible to keep the Union out, as it felt that the benefits which it offered were both attractive and ade- quate; that she had enjoyed the benefits provided when she had been an RSR, particularly her freedom to be able to go home whenever she had finished her route, which left her very independent and made her her own boss: and finally, she had announced and described the general wage in- crease which all of the RSRs were to receive. The only variance in this presentation, according to Johnson. oc- curred when she spoke with her three RSRs who had signed the letter and, in these conversations, the variance extended only to commencing by saying that she was aware that they had signed the letter. The RSRs with whom Johnson spoke, however, testified to a number of 21 Of course. if it was truly "an ioperational thing." presumaibls it sould have been reviewed in detail as this was the sers matter which a.ssertedl, had led the Winston-Salem officials to Buena Park 24 It is undisputed that it wais Respondlent's practice to announce such wage increases separatelh to each RSR. with the result that there is no allegation that either the manner ot annorunc menn l or the tirmine of the increase constituted a iiolation of the Aci additional comments directed to them by Johnson. Among the RSRs with whom Johnson spoke on Mon- day. January 26, were Janis Weber, Kathy Crawford, Wen- dy Glauber, and Kathryn Nuro. Weber testified that John- son had said that other RSRs had reported being contacted regarding the Union; that Johnson had asserted that these RSRs were confused, fearing that if they became repre- sented hut an agreement could not be reached with Re- spondent. a strike would then follow and that they were concerned about providing for themselves as a number of them, like Weber, were the only family breadwinners; that Johnson "kept saying she didn't know if I had been con- tacted" until ultimately Weber admitted as much, though she declined to identify the name of the individual who had contacted her when Johnson put this question to her: and that Johnson had inquired if Weber had any problems, following this with a review of RSRs' benefits which in- cluded mention of the possibility that should the Union prevail, the RSRs would be required to punch a timeclock, necessitating daily return of their vans to Respondent's Buena Park facility.2 In essence, Johnson denied making these comments, testifying that she had simply made her planned presentation and that after remaining silent throughout that presentation, Weber had expressed disap- pointment in not having been notified of recent contest winners' names and had asserted that Respondent was too impersonal. Kathy Crawford testified that she had been asked if she had heard any information regarding the Union and that when she had replied that she had attended a meeting on Saturday. Johnson had then inquired as to the location of that meeting: that Johnson had asked how Crawford felt about the Union and, when the latter expressed uncertain- ty and a lack of understanding about "a lot of different things," Johnson had then stated that if the Union did pre- vail, RSRs would have to punch timeclocks and bring their vans into the office: and. that Johnson had pointed out that Crawford was still a probationary employee. adding that "they are not out to fire anybody, they are just trying to figure out what the problem is." Denying that she either had asked how Crawford felt about the Union or had as- serted that the RSRs would have to start punching time- clocks and checking in their vans should they become un- ionized, Johnson testified that when she had begun her presentation. Crawford had interrupted by saying that she had been contacted and had accompanied another RSR to the union meeting the previous Saturday, but when she had been unable to get satisfactory answers to her questions, had accused the organizers of being "full of crap" and had left the meeting about an hour early. Crawford acknowl- edged telling Johnson that she and another RSR had left the union meeting early, but she testified that she did not think that she had told Johnson her reason for doing so and did not recall providing any other details as to what had taken place at the meeting. She flatly denied having told the organizers at that meeting that they were "full of crap." Johnson further testified that Crawford also had said V2 Weber reified Ihil it would nit he fea,ihle for her to make a dails trip friml her home in tluntingtirn Beach to Respondenl's Buena Park faclits, 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that in speaking with drivers from other firms who be- longed to unions. she had been advised that they were paid on an hourls basis and had to pick up their vans at the company premises in the mornings and return them in the evenings. According to Johnson, Crawford continued by saving that while she had been with Respondent for only a short period of time, she had enjoyed the work that she was doing and was not at all that interested in anything that the Union had to offer. ('rawford did agree that she had ex- pressed opposition to the Union during her conversation with Johnson and that she had mentioned that some friends and drlis v employed by other companies had to punch timeclocks and bring their vans to their employers' premises. However. she denied that it had been this com- rment by her that had led to the discussion with Johnson of punching timeclocks and bringing vans into the Buena Park office. Instead she asserted that her expression of op- position to the Union and description of what she had been told by other drivers had resulted from her response to Johnson's comment about RSRs having to punch time- clocks and bring their vans into the office should the Union prevail in the election. Kathryn Nuro testified that she had been the one to commence the conversation by asking if Johnson had seen the letter signed by the 13 RSRs and that when Johnson responded affirmatively, she had then asked Johnson a se- ries of questions, which she could not recall for the most part., to which Johnson had given answers which Nuro characterized as "noncommittal." Nuro did recall having asked if Johnson felt that unionization would lead to the imposition of restrictions on the manner in which RSRs performed their jobs, to which Johnson responded that she did not know. Nuro further testified that Johnson had not made any inquiries, had not made any threats, had not made any promises and had not discussed revocation of signatures on either authorization cards or the letter. Sig- nificantly. while Nuro did mention that Johnson had de- scribed the nationwide wage increase, her overall descrip- tion of their conversation made no mention of the items included in the standardized presentation which Johnson testified that she had made to all RSRs during the week. The latter point concerning Nuro's testimony also oc- curred when Wendy Glauber testified-though Glauber described Johnson's comments about the increase, she made no reference to the other facets of the standardized presentation assertedly made by Johnson to each of the RSRs whom she supervised. In describing her conversation with Glauber, Johnson testified that after saying that Re- spondent was aware of the interest being shown in the Union, Glauber had interrupted to describe how she had come to learn of the Union's campaign from another RSR, and how she had attempted unsuccessfully to telephone Johnson on Saturday, January 24, about the matter. Ac- cording to Johnson, Glauber continued by saying that she had been up half the night practicing what she would say to a room full of RSRs concerning her opposition to union- ization. as she would do anything she could to fight it and really wanted to let other RSRs know how she felt. John- son contended that she had then continued her presenta- tion, pursuant to her mental outline, but that when she completed her comments concerning freedom and inde- pendence, Glauber had reasserted her opposition to the Union, saying that she would like to tell other RSRs how she felt but did not feel that she had enough information to be able to converse intelligently with them, particularly with those who would be interested in the Union. Johnson testified that she had responded only by saying that she did not have enough information to give Glauber because she too did not know anything and had then concluded by explaining the general wage increase. Excluding the description of the increase, Glauber did not corroborate Johnson's description of their meeting. Rather, she testified that at the meeting she had immedi- ately asked if Johnson had heard anything about the Union, and that Johnson had responded by saying that she had heard about it and by asking what Glauber thought or felt about it. Then, on cross-examination, Glauber, who had been strongly opposed to the Union from the time that she first learned of its campaign and who was a social ac- quaintance of Johnson, recanted, testifying that she did not believe that Johnson had ever asked whether she had been for or against the Union prior to the time that she had expressed her personal view and, further, that when she had first mentioned the Union during the conversation, she had expressed, either by words or by connotation, that she had been against it from the very start. In view of Glauber's other conduct, on behalf of Respondent, de- tailed infra, I do not credit these disavowals. As will be described infra, on the morning of Tuesday, January 27, Johnson and Price met with Glauber. Thereaf- ter during the day Johnson spoke with other RSRs whom she supervised, including Heidi Sindelar and Rita Gaines. Sindelar testified that during her meeting with Johnson, the latter had said that if the employees became represented, they would "most likely" be losing their privileges of taking home their vans, would have to punch a timeclock and would be paid on an hourly basis. She further testified that Johnson had described the general wage increase. How- ever, Sindelar appeared unable to recall clearly the precise comments exchanged during her meeting with Johnson. For example, she testified that Johnson had asked if she was aware that some RSRs had been talking about joining the Union and that she had replied that she was aware of this activity. Later Sindelar testified that she did not know if she had responded directly to that question. In another area, Sindelar testified that Johnson had asked if she had any opinions regarding the Union, to which she had replied that she had none as yet, but was listening to both sides. However, Sindelar later testified that she was not aware of whether she had made this statement in response to Johnson's initial question or whether she had made it a little later during the course of the conversation and she subsequently conceded that she had not been asked her opinion by Johnson, but had volunteered the fact that she was not committed. Johnson denied having asked whether Sindelar was aware that some of the RSRs were talking about the Union, inquiring in any fashion what Sindelar's opinions were on the union activity of herself or of any other indi- vidual, making any statement to Sindelar with regard to the ability of the RSRs to use their vans, saying that the RSRs would have to turn in their vans at night and would have to 374 L'EGGS PRODUCTS INCORPORATIED work on an hourly basis if the Union became their repre- sentative, and denied offering any opinion or making any suggestion to the effect that there would be changes in working conditions if the RSRs became unionized. John- son testified that while Sindelar had initially denied know- ing anything about the Union, following the major part of Johnson's presentation, Sindelar had then volunteered that she had received a telephone call regarding the Union but was not interested in getting involved. Johnson further tes- tified that she had simply replied that she had not met with Sindelar to find out anything that was going on but rather simply to tell Sindelar how Respondent felt. As had been true with Nuro and Glauber. Rita Gaines' description of her conversation with Johnson did not con- form to the pattern of the standardized presentation which the latter had purportedly delivered to all RSRs whom she supervised. Rather Gaines testified that after beginning the conversation by acknowledging awareness that Gaines had signed the letter sent to Respondent, Johnson asked "what was up" and subsequently "what was the problem." Gaines testified that she had replied that she did not want to dis- cuss it and that Johnson had then directed Gaines to listen to her, saying that Respondent would do everything it could to keep the Union out, that she personally was for Respondent, that Respondent had been good to Gaines and had given Gaines an increase, and that if the Union got in, there "would be a question" about RSRs having to come to get their vans every day and further they may not have uniforms. According to Gaines. Johnson had then asked if Gaines was listening but when Gaines replied by asking if Johnson had come to Hollywood to tell her that, Johnson had said that she had not but had come out to tell Gaines about her raise which Johnson then described. Johnson denied having asked Gaines what the problems were or why Gaines had signed the letter, having asked any questions of Gaines during the course of the conversation, having told Gaines then or at any time that Respondent would do everything it could to keep the Union out and having discussed the subjects of vans or uniforms with Gaines. Instead, testified Johnson, when she had said that she was aware Gaines had signed the letter, the latter had interrupted to say that she had been advised not to say anything on the subject, to which Johnson assertedly re- plied that that was fine, as she was not there to find out any information from Gaines but merely to give Respondent's viewpoint on the subject, whereupon she had completed her presentation. According to Johnson, Gaines then said that she had a meeting to attend in Hollywood and depart- ed. On Wednesday, January 28, Johnson spoke with RSRs Deborah Weller and Judy Crouch. Weller testified that Johnson had commenced the conversation by saying that she thought Weller was very intelligent and did not intend to attempt to persuade her one way or the other regarding the pros and cons of unionization. According to Weller, Johnson had alluded to their dispute over the amount of Weller's increase resulting from Johnson's annual evalua- tion of Weller's performance, saying that in the event of unionization there would be no merit increase program and that all wages would be paid according to scale with all RSRs receiving the same amount regardless of merit. Addi- tionally, testified Weller, Johnson had pointed out that Weller might no longer be able to take time off in the middle of the workday for treatment of her medical needs.?6 According to Weller. Johnson also had said that Weller would lose the $200 that it would cost to join the Union and had inquired what the Union would do for Weller. Johnson denied having said that she thought Wel- ler was intelligent and knew that she would not be able to sway Weller, having told Weller that if the Union came in all wage increases would be automatic and that there would not be any merit increases. having mentioned any- thing in regard to wages if the Union came in. having said or indicated that if the Union came in Weller would not be able to get time off to take care of medical problems, and having discussed with Weller the cost of joining the Union. Johnson did. however, concede that when she had de- scribed the general wage increase she had mentioned that it would be in addition to the annual merit increase. Johnson further acknowledged that there had been a discussion of Weller's medical problems, but she testified that it had been initiated by Weller, who had mentioned, in the course of commenting that she was preparing to go to the hospital to have a lump removed from her neck, that she enjoyed the freedom afforded by her job to make frequent visits to her doctor by varying her routine. Finally, Johnson con- ceded that she had made comments regarding Weller's in- telligence. However, she testified that this comment had arisen as a result of Weller's interruption, prior to mention of the general wage increase, to say that she had been con- tacted regarding the Union but had agreed with her mother's boyfriend's philosophy that the Union was not necessary and that it was better to work within the struc- ture of the Company, as she felt unions were too strong and were politically motivated. According to Johnson. when Weller then said that she felt sorry for some of the people involved because they were like sheep following leaders, Johnson had replied that Weller had always struck her as being sufficiently intelligent to make up her own mind and not be swayed by anyone else's opinion. Weller. conversely, testified that during the meeting with Johnson she had said nothing and had simply permitted Johnson to talk. Consistent with this testimony-and at odds with Johnson's description-is the fact that while Weller had signed an authorization card on January 19, there is no evidence, in contrast to the situation with respect to other RSRs, that she ever revoked or attempted to revoke her signature on that authorization card. Yet, Weller did not impress me as one who would remain a "sheep" if she truly had felt that way. Though unable to recall precisely how her conversation with Johnson had commenced, Judy Crouch testified that she had said that she did not want to discuss the matter when Johnson had stated her awareness of Crouch's in- volvement with union activities. Nonetheless, testified Crouch, Johnson had pursued the matter, discussing the benefits which the RSRs enjoyed and saying that it was possible that the RSRs might not have the freedom which they now enjowed. were the Union to become their repre- :' Weller a affhil le t h .i hlbloJd probhlcm 375 DECISIONS OF NAFIIONAL LABOR RELATIONS BOARD sentative, and that they might have to punch a tirneclock, work 8 hours and take their vans to the warehouse at the end of each day's work. Crouch further described a com- ment by Johnson to the effect that RSRs might not be able to obtain extra time off, such as for early vacation or for other situations similar in nautre to a request for time off which Crouch had once made that had been granted. Crouch acknowledged that Johnson had merely said that these were possibilities, but she pointed out that Johnson did not describe why such restrictions might follow union- ization. Johnson did confirm Crouch's testimony about the beginhing of the conversation, for she testified that when she had mentioned being aware that Crouch had signed the letter, the latter had said that she had been advised not to talk to anyone regarding the Union. Further confirming Crouch's testimony, Johnson testified that she had none- theless pursued the conversation by saying that this was satisfactory since she was not there to find out anything about Crouch or anybody else but merely wanted to give Respondent's viewpoint. Johnson testified that she had pointed out that, in con- trast to other companies, Respondent's policy of promot- ing from within the ranks of the RSRs based upon work performance offered an opportunity for women without college degrees to be advanced into management careers. She also confirmed Crouch's testimony regarding the dis- cussion of early vacations and unscheduled time off, con- ceding that she had mentioned the flexibility which route work had afforded Crouch, enabling the latter to obtain 2 paid days off to visit in-laws because she had run her route ahead, and had referred to a separate occasion when John- son had granted Crouch's request that she be permitted, without loss of pay, to make up her service calls which she had missed due to being fogged in at the San Jose airport. Johnson did deny having indicated that these benefits were privileges that might not otherwise be available were the RSRs to become represented, having mentioned anything to Crouch about time off if the Union came in or mention- ing to Crouch anything about the RSRs being restricted in the use of their vans if the Union came in, having asked Crouch any questions during the conversation, and having said to Crouch that if the Union came in the RSRs might not have time off and would have less freedom. To the contrary, Johnson contended that she had told Crouch that the latter knew more about unions than did Johnson. John- son also asserted that before she had begun to describe the general wage increase, Crouch had interrupted by saying that she had signed the letter received by Respondent but felt that she had a lot of thinking to do as of that particular time and had not decided which way she was going to vote if it came down to an election. Yet, as was true with Weller. though Crouch had signed an authorization card as well as the letter, there is no evidence that Crouch ever revoked or made any effort to revoke her signature authorizing the Union to represent her. Although supervised by Johnson, Jenni Pizzino testified that it had been her cousin, Smith, who had advised her of the prospective nationwide increase. During a family gath- ering, testified Pizzino, she had asked Smith, in essence, when she would be entitled to a raise and Smith had re- plied that RSRs received raises after a year normally, but that one was scheduled within the next month in the amount of $65. Pizzino testified that later that day she had mentioned to Smith having heard something about the Union, but Smith had replied that it was just talk. Pizzino did not recall anything else regarding her conversation with Smith on that date. As Respondent points out in its brief, these comments are not alleged to be unfair labor practices. Yet, as discussed, infra, the difference between the testimony of Smith and that of Pizzino concerning this conversation is instructive. Smith testified that when she had mentioned that some of the RSRs had signed a letter saying that the)y wanted to be represented by a union, Piz- zino had acknowledged having heard some talk about the Union and Smith then simply said "well, at this point that's all it is, just talk." Smith testified that she then con- tinued her conversation by describing Respondent's posi- tion on unions and by telling Pizzino of the nationwide wage increase. Consequently, whereas Pizzino described two conversations, Smith described but one. While Smith testified that she had related Respondent's position on unions, Pizzino made no mention of such comments. Smith also met with four other RSRs whom she super- vised and who described their conversations with Smith. Vickie Braase testified, without contradiction, that during a dinner conversation in Bakersfield Smith had said that she did not know if Braase had received any telephone calls or had been contacted and that Braase did not have to tell her, but that some of the RSRs were organizing and want- ed to go union although Respondent did not know who thev were. Braase volunteered that she had been contacted but had not made a final decision and Smith simply replied "fine." During this conversation, testified Braase, Smith did not ask the identity of the RSRs who had been discuss- ing the Union nor what was going on as far as the Union was concerned nor how Braase felt about the matter. In fact, according to Braase, Smith did not "really ask me anything." But then, Braase later attempted to revoke her authorization card. Diane Getchel testified that Smith had raised the subject of the Union with her by saying that Respondent had re- ceived the letter and by expressing surprise that Getchel had signed it, inquiring if Getchel wanted to tell her why she had signed it and if there was a reason why Getchel was unhappy with her job. In response, Getchel testified that she replied that she had been interested in the Union and what they could do for RSRs as there had recently been an increase in her work and she had gotten some new accounts which she felt in some way should affect her pay or bonus. According to Getchel, Smith also had inquired about how she had been approached to sign the letter and when told that it had been by another employee, Smith then had asked if Getchel wanted to tell her who that per- son was, but Getchel replied that she did not want to dis- close that information. Smith then said, testified Getchel, that she respected that decision and that Getchel was not obliged to identify the individual. Smith denied having asked questions concerning why Getchel had signed the letter, what Getchel's problem was, how Getchel had been approached to sign the letter, who were the persons who had approached Getchdl, and who had contacted Getchel about the Union. Smith did concede that Getchel had said 376 L'EGGS PRODUCTS INCORPORATED that some RSRs had come up with the letter, but she as- serted that Getchel had volunteered this information. Moreover, while she denied having asked Getchel how she had been approached to sign the letter, Smith testified only that she did not recall whether Getchel had said that she did not want to mention any other names. Of course, Get- chel could hardly have made such a declination without having been asked to identify those persons. Similarly. Smith testified that she was unable to recall if she had asked if Getchel had any problems on the job, or if (Getchel had mentioned any such problems to her. Smith also denied that Getchel had explained her reason for signing the letter. Yet this testimony was flatly contra- dicted by her own recitation of the conversation. According to Smith. she had commenced the conversation by saying that she understood Getchel had signed the letter and Get- chel had acknowledged doing so, but had said that she did not know if she had done the right thing. inquiring if by signing the letter her job would be affected. Smith testified that she then had assured Getchel that it would not affect her job and as the conversation proceeded. Getchel had observed that Smith "had a lot of busy girls running around at that time," at which point both of them had laughed, with Smith saying that she certainly had not been aware of that fact. During the conversation, testified Smith, Getchel observed that she loved her job and felt that she would probably work even for less money. but ithat she had signed the letter because if there was any wav to mnake more money, she has certainOl interested in finding out ahout it. It was at this point, Smith testified, that she had advised Getchel that Respondent did not feel that it needed a union, that it had always been fair with its employees, that it did not need a third party intervening in employee-com- pany relations, that it had given raises in the past without a union, and that at this time a general wage increase was being announced at a meeting in Puerto Rico as a result of planning before the Union came on the scene. Consequent- ly, not only did Getchel. contrary to Smith's denial, state why she had signed the letter, but Smith then had used that reason as a touchstone for making a plea on behalf of Re- spondent's position and announcing the wage increase to Getchel. Jonnie Lisman testified that as she had come to the park- ing lot behind her apartment building. Smith had been present and had said "I want to talk to you." following this blunt prefatory remark with questioning as to what Lisman knew about the Union and about joining it. Lisman ac- knowledged having signed the card and the letter. but testi- fied that she had attempted to avoid going into the subject with Smith. Nonetheless, according to Lisman, Smith kept bringing up the subject, although Lisman was unable to recall specifically what Smith had said. testifying that Smith "more or less asked questions trying to get me to do the talking," and illustrating this testimony by examples of Smith's questions regarding what the Union had promised the RSRs and what Lisman had personally discussed with the Union. Smith denied having asked Lisman the names of others who had signed, having asked what Lisman knew about the Union, having asked what the Union had prom- ised to do for Lisman, and having asked about any job- related complaints that Lisman might have. The wide-ranging nature of Smith's description of this conversation, however, led to several inconsistencies. First, Smith testified that when she had begun the conversation by mentioning Lisman's signature on the letter, the latter had looked shocked and had responded "yes, and have you ever done something that you later wished you had not done?", after which she said that at the time that she had signed the letter it had been a bad time in her life, she had been having a lot of problems. and "everyone else was signing, so did I." Nevertheless, at a later point Smith testi- fied that during the conversation Lisman had said that she had not made up her mind about the Union yet, and in- tended to be present if another meeting was held. Second- ly, Smith described Lisman as saying that she had spoken to a lot of store people and drivers since Christmas, but had been unable to find anybody that was enthusiastic about the Union, relating a story about a friend who had been fired by a company and who had become upset be- cause he did not feel that the union had supported him in that dispute. Yet, Smith also testified that during a later portion of that conversation, Lisman had said that the rea- son she had believed the Union's claim that it could get a wage rate of $1000 a month for the RSRs was because she knew a lot of drivers who were earning approximately that amount per month. Finally, notwithstanding the assertion that Lisman had said that she wished she had never signed for the Union, the fact remains that, like Weller and Crouch. there is no evidence that Lisman ever revoked or attempted to revoke her signature. Linda Rehmann testified that in her encounter, Smith had said that she knew Rehmann was aware that Smith was cognizant of her name on the letter, that Respondent intended to do everything in its power to keep the Union out as the Union did not run Respondent and did not sign the RSRs' paychecks, and that all the Union wanted was the initiation fees and regular monthly dues. At this point. Rehmann testified that she had said that she did not want Smith discussing the Union with her and did not want to discuss it with Smith, after which the latter described the nationwide increase. Smith did not relate the full substance of this conversation, and she denied only that she had said to Rehmann "the company would do everything it could to keep the union out." Although supervised by Smith. Nancy Schmidt was met by Hardy who, according to Schmidt, said that Respon- dent was concerned about the RSRs attempting to orga- nize a union, that organization had been attempted before without success, and that Respondent would do everything it could to prevent it. Schmidt testified that Hardy inquired why Schmidt had not come to Respondent and, further, inquired if her problem had been basically money, after which he described the nationwide increase. Hardy testi- fied that he had decided to speak to Schmidt in an effort to relieve Smtih of the burden of having to cover RSRs in so broad a geographical area and inasmuch as he had an appointment in the San Fernando Valley. He testified that he had begun the conversation by telling Schmidt that Re- spondent did not feel representation was necessary, that Respondent had been fair and equitable in its dealings with the employees, that the wages had always been fair and the benefit package good, and that Respondent was going to 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do whatever it legally could to avoid having the Union represent the employees. He testified that when he had de- scribed the general wage increase to Schmidt, she had re- plied that it did not mean anything to her because of the number of hours she worked and the long days she put in as a relief RSR; to which he had replied that she was aware that as a relief RSR she would have both heavy days and light days, but that in the long run they would balance out. He denied ever having said that unionization had been tried before without success, that there had been any dis- cussion of previous organizing drives, and ever asking Schmidt why she or any of the other RSRs had not come to Respondent with their problems first. Yet, Hardy's denials did not ring altogether true. He tes- tified that other than its involvement in the Union's strike over Respondent's servicing or a retail store-a matter that had not been Respondent's labor problem he did not know of any problems that Respondent had had with unions, nor did he know of any prior attempt to organize Respondent. This testimony was, of course, designed to buttress his denials of the statements attributed to him by Schmidt. He was then led to concede, however, that he had been advised of an incident in Chicago where Respondent had encountered some problems with a union and admit- ted that his initial testimony had been inaccurate. How- ever, he continued to maintain that he had had no conver- sation with Schmidt pertaining to anything like that, amending his testimony to say that he knew of no prior organizational drive by the Union in southern California, adding "it's southern California that we're talking about in this case." Needless to say, Hardy's qualification hardly inspired great confidence in his credibility. Five of the RSRs with whom Hetherington spoke testi- fied during the hearing. While she did not recall how the conversation had gotten started, Mary Ann O'Malley testi- fied that following a reference to the letter and the fact that cards had been signed, Hetherington had asked why the RSRs had been having problems and why they had not come to him first, rather than going to the Union, as possi- bly something could have been worked out by Respon- dent.27 She further testified that Hetherington had said that he thought the RSRs might not have known what they were getting themselves into, but that it was not too late for them to get out, by writing a letter revoking their cards. According to O'Malley, there was a discussion between them of the consequences of unionization, during which she had mentioned punching timeclocks and not being able to take vans home during the course of expressing her opinion that she did not want to account for all her time, liked the independence and freedom of the job, liked the fact that the RSRs could take their trucks home, and felt that these benefits would not be available if the RSRs were represented by a union, believing that instead the RSRs would have to go to a certain point, clock in and out and would not be able to take their trucks home.28 Hethering- 27 O'Malley conceded that in making the comments with respect to wh' the RSRs had not come to him before going to the Union and as to why the RSRs were having problems, Hetherington had been speaking generally and was not referring to her in particular. s O'Malley did not explain her reason for having arrived at this opinion, ton, she testified, had said in response that he did not know what would happen in the event of unionization, but that such consequences were possibilities and he did not know whether they would become actualities should the Union successfully organize Respondent's RSRs. O'Malley also testified that during the latter part of the conversation she had flatly asserted that everyone knew why Morgan had gotten fired and that Hetherington had replied that it had not been for "that" but rather because the condition of her route had been the reason, since the route supervision re- port had shown that she had a number of things to be straightened out on her route that were common things that all RSRs were corrected for. Hetherington denied having told O'Malley "it is not too late to get out" or words to that effect. He testified that he had begun the conversation by telling her that Respondent was aware that some RSRs were interested in being repre- sented by the Union, that Respondent felt that there was no need to have a third party involved, and that she should feel free to come to him should she be harassed or bothered by any telephone calls or union representatives or should she have any questions or problems. At this point, testified Hetherington, O'Malley complained about being initially left out of the organizing campagin, asserting that someone had told her that there was suspicion that she would con- vey such information to Hetherington, was now glad that she had not been contacted because she did not believe there was need for a union, was happy with her job, and did not want any part of the organizing campaign. Hether- ington acknowledged that during the conversation he had given O'Mally his views as to some of the benefits that the RSRs had derived in the past without representation. In doing so, he flatly contradicted O'Malley's assertion that she had been the one who raised the question of the vans. He testified that in addition to mentioning opinion surveys designed to elicit RSRs' problems and the incentive pro- gram instituted as a result of the RSRs' unhappiness with the then-existing program, he had also brought up the fact that the vans and the uniforms were a major benefit to the RSRs because at one time he had computed the cost of driving to and from the office and of the money spent on clothes. When he described the nationwide wage increase to O'Malley, he conceded that he had followed the descrip- tion with a question as to how O'Malley felt about it and he agreed that O'Malley had inquired if union activity had been the reason for Morgan's termination. Sue Pierce testified that Hetherington had commenced the conversation by pointing out that she had been with Respondent long enough to know how it felt about unions, had asked if she had been requested to go to any union meetings or if she had been contacted by anyone from the Union, had asked if she was going to tell him about the fact that some of the employees were trying to form a union and, when she replied that she did not intend to do so, had asked why she would not tell him. Pierce acknowl- edged that at no time had she told Hetherington that she had signed a card, that there had been no mention of revo- cation of her card during their conversation, and that at nor did she explain why she had chosen to single out the subjects of time- clocks and taking vans home. 378 L'EGGS PRODUCTS INCORPORATED some point during the conversation Hetherington had mentioned the nationwide wage increase. Hetherington denied having asked Pierce to tell him the names of employees who were involved in the Union, hav- ing asked Pierce if she had attended a union meeting, and having said anything to Pierce about uniforms, vans being a benefit, or opinion surveys. He testified that he had be- gun the conversation by mentioning that the letter had alerted Respondent that some RSRs were interested in rep- resentation and that there was union activity in progress. that neither he nor Respondent felt that there was a need for a third party to be involved as it would "cut down" the relationship between the area managers and the RSRs which he believed was a good one, and that he was sure that she was aware that Respondent would do everything it legally could to keep the Union out. Nevertheless, he con- ceded having asked if Pierce had any particular problems of which he was unaware. However, he testified that she had replied that she had no problems other than having to put in some extra time because of the shape the route had been in when she had taken it over, that she had been happy working for Respondent up to this point, and that she did not feel that there was any need for a union nor that one would help in any way. After describing the gener- al wage increase, Hetherington testified that he had told Pierce that if she felt she was being bothered or harassed by anyone, to feel free to come to him and he would take care of it. Geri Quigley testified that Hetherington had com- menced his conversation with her by saying that he wanted to talk about the letter, had then asked why she had signed it and, when she had replied that there were some things about working for Respondent with which she was not happy, had inquired why she had not come to him before doing this. During the conversation, testified Quigley, Hetherington had said that he knew of rumors about Mor- gan being fired for mentioning the Union, but that they were not true and then he added that Quigley knew that Respondent's policy toward unions was that it was not going to let one come in. Quigley testified that after de- scribing the general wage increase, Hetherington had asked if she thought that it would influence any of the RSRs regarding the Union, to which she replied that money was not the only issue and that she could not speak for all the RSRs. According to Quigley, Hetherington had then asked how far she had gone with the Union and if she could take a "step back" from what she had done because he thought that if she did, it might influence some of the other RSRs. Additionally, Quigley testified that during the conversation Hetherington had mentioned freedom, saying that he thought the RSRs valued their independence on the job and that if the Union came in that the) would probably have to account for their time more strictly. Hetherington denied having asked Quigley why she had signed the letter, why she had not come to him before sign- ing the letter, whether the raise would influence any of the RSRs who were for the Union, how far the union organiza- tion had gotten or what success it had encountered, and whether she would take a step back, and having asked or requested her to withdraw her signature, or having suggest- ed that if she withdrew her signature it might influence the other RSRs. Nevertheless, he admitted that he might have used the phraseology "take a step back" when he men- tioned her legal right to withdraw at any time she wished. Hetherington's version of this conversation is as follows: He said he was surprised that Quigley had signed the letter indicating support for the Union and interest in representa- tion: that Respondent felt there was no need for a third party to be involved; that in his opinion if a third party did get involved, it would not help the area manager-RSR rela- tionship as possibly any complaints or problems would have to be submitted through the Union for resolution rather than being submitted directly to him; that Respon- dent would do everything it legally could to keep the Union out; and, that Quigley had the legal right to with- draw her name from any letter or anything else that she signed. He did acknowledge having inquired why she had not come to him or to Respondent if her problems were so serious as to lead her to the Union and, when she respond- ed that she felt Respondent already knew about some of the problems, he conceded having said that he was sur- prised that she had not come to him or Respondent as he knew she was aware of Respondent's grievance procedure, which he admittedly asked why she had not used if she had problems, saying that he could understand her going to an outsider after unsuccessfully attempting to obtain satisfac- tion from Respondent. When Quigley replied that she sim- ply did not think that it would help, he asked what specific problems she had that he might not be aware of and she responded by listing a few matters that had left her dissat- isfied. When he told her about the general wage increase and the fact that it had nothing to do with union activities, he added that his past experience with Respondent had been that the RSRs were well treated, asking how she felt about the increase and how she felt the other RSRs would feel about it. According to Hetherington, Quigley replied that she was sure that it would help. Sandra Glad testified that Hetherington had com- menced his meeting with her by saying that while Respon- dent could easily replace the RSRs who had signed the letter, it did not want to do so: that the RSRs' needs could be met by' Respondent: that if Glad wanted to revoke her signature on the letter, she could write a letter to the Union saving that her needs could be met by Respondent and that she no longer needed the Union's assistance; that if she did write such a letter she should give him a copy; that, after describing the nationwide increase, the increase was not related to the Union, but there might be more in it for Glad; and that while some people believed Morgan had been discharged for mentioning the Union, this was not so, as her discharge had resulted from stockouts. During the conversation, testified Glad, Hetherington had also in- quired if she knew anything about cards, but she had not responded. As was true with the other RSRs' recitations of their conversations with Hetherington, the latter disputed Glad's version of what had been said that day. According to Hetherington. the conversation had begun with him stating that he was aware that she had signed the letter and was interested in union representation, after which he had advised her that Respondent believed there was no need for a third party to be involved and that Re- spondent would do everything it legally could to keep the 379 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union out. While Hetherington denied having told Glad that she could revoke her name from the letter, he conced- ed that he had told her that she had a legal right to with- draw her name if she desired and that he had made this statement at the point in the conversation following his observation that Respondent would do everything it legally could to oppose the Union. He denied telling Glad that the 13 RSRs who had signed the letter could be replaced easily and further denied having mentioned anything to Glad re- garding the 13 RSRs who had signed the letter. However, he did testify that Glad had interjected that Wade had been terminated 29 because of union activities; an assertion which he had denied, saying that while he really did not know anything about it, he had heard comments concern- ing Wade's poor performance from other area managers over the course of the past year and that if Wade had been fired for union activity, why had Respondent not also fired the other 12 letter-signers. According to Hetherington, Glad had acknowledged the validity of this argument, and he had then gone on to describe the general wage increase, but when Glad had interrupted to observe that there had been a feeling that something like this might happen, he had assured her that the increase had nothing to do with the Union, having been planned for a number of months in advance. He denied having told Glad that there might be a little more money for her, but conceded that he had asked how she felt about the increase, to which she had responded that, if true, she thought that it was great. He also admitted having asked her if she had any problems of which he was unaware and, upon being told that her only problem was that RSRs were not being paid as much as Coke drivers and other vendors who were receiving more, testified that he had told her that her job could not be compared with those of drivers who were responsible for performing phys- ical labor, adding that people have a tendency to overstate their salaries and that she should not be upset by what other drivers said when she did not know for a fact what they were earning. Hetherington flatly denied having asked Glad anything about authorization cards, asserting that the subject of authorization cards had not been raised at all. However, Majo Michaels also testified that Hethering- ton had referred to authorization cards when he had met with her. Thus, she testified that from the beginning of their meeting she had expressed opposition to the Union 30 and she described their conversation as beginning with Hetherington expressing regret that the RSRs had not come to him with their problems, to which she had re- sponded that she knew why he was meeting with her and that she was physically and emotionally tired of the entire situation, wanting nothing more to do with the Union. However, testified Michaels, when Hetherington had said that she was still within her legal right to retract her card and statement, she had replied that she had gone this far with her fellow employees and did not feel that she should back out now. According to Michaels, Hetherington had 29 Discussed infra. 30 She testified that Arlene Hungate may have already suggested sending a revocation letter before she had spoken with Hetherington as described in greater detail infra. replied that she could send a copy of the retraction letter to Respondent for her personnel files if she decided to write one, and had then gone on to describe the wage increase. Hetherington testified that he had first advised Michaels of his knowledge that she had signed the letter and had then begun telling her how Respondent felt about it, but she had interrupted by expressing regret at having signed and by saying that she wished that she had never been involved in it. In response, he testified that he had said that she had a legal right to withdraw her name from the letter if she de- sired but, according to Hetherington, nothing else was said by him on the subject. He specifically denied that the sub- ject of and the word "revocation" had arisen during the conversation, contending that while he had said nothing further on the subject, Michaels had continued the conver- sation by saying that she was tired of all the telephone calls and correspondence that she had received, that she was sick of the entire matter and that she did not want any part of the Union. Three RSRs testified to what Area Manager Manning had said during her meetings. 3' While in Manning's office on balance day, testified Sharleen Kuriyama, Manning had asked if she had heard anything about the Union and when Kuriyama said that she had, Manning then had asked from whom. Kuriyama testified that she had replied that she had heard about it from Carol and when Manning had inquired if Kuriyama was referring to Carol Washington, Kuriyama had said that she supposed so, but did not know Carol's last name. According to Kuriyama, when Manning then had asked what Washington had said, Kuriyama had replied that she did not want to talk about it, and said nothing more, even though Manning had assured her that whatever she said would be between the two of them. Manning testi- fied that when she said that Respondent was aware of the union activity among some of the RSRs and that if Kuriya- ma were harassed or bothered she should report it, the latter had replied that she did not want to get involved and wanted to retain her job regardless of what happened. Manning testified that she had said that this was fine, and then had told Kuriyama that Respondent did not feel that a third party was needed, as it had always been responsive to the employees, after which she had described the na- tionwide increase. While Manning denied having asked if Kuriyama had heard about the Union through Washington and having asked any questions during the conversation, she conceded that Kuriyama had said that she did not want to get in- volved and was unable to recall if Kuriyama had said that she had heard of the Union through Washington or if Ku- riyama had said anything other than that she did not want to get involved and she would have her job regardless of what happened. Shirley Sautters conceded that although her discussion with Manning had lasted only a few minutes, she did not recall exactly how things had happened. To the extent that she did recall, Sautters testified that after mentioning that a union organizing drive was in progress, Manning had in- 1 In addition, it is undisputed that during an employment interview in October 1975. Manninghad asked if Crawford had ever belonged to a union and had said that if Respondent ever became unionized. it would have to find a different was to distribute its products 380 L'EGGS PRODUCTS INCORPORATED quired if Sautters knew about it and if she had known about a meeting. She had replied, testified Sautters. that she did know about it but did not want to discuss it since she did not care to be involved in it. According to Sautters, Manning then had wanted to know if Sautters knew who was the head of it or who was involved, to which Sautters replied that she would not identify any names. Sautters testified that Manning had described the naitonwide wage increase. Manning denied having asked any questions of Sautters involving or relating to the Union, having asked if Sautters knew about the Union or about the Union organizing and having asked who the Union leaders were. She further de- nied that the subject of union meetings had been raised at all during the conversation. Rather, testified Manning. the conversation had almost paralleled that with Kuriyama: She had told Sautters that Respondent was aware of the union activity among the RSRs and that if Sautters were harassed or bothered, she should contact Manning: in re- ply, Sautters had said that she did not want to become involved, to which Manning had replied "fine"; and she had then described the general wage increase. Manning further testified that she did not recall anything else that had been said during the conversation and, other than the statement that she did not want to become involved, that Sautters had not said anything about union activities and was not very communicative. The final RSR to testify regarding her meeting with Manning was Kris Hughes. Hughes testified that Manning had initiated the conversation by inquiring if Hughes was aware of the purpose of the meeting, to which Hughes had replied that she assumed it had been occasioned by receipt of the letter, and Manning then pointed out that while Hughes did not have to say anything if she did not so desire, it was her right to speak to whomever she wished and no one could forbid her from speaking with Manning. From this point forward, Hughes, a personal friend of Manning's, gave testimony which at material points was conflicting and appeared to be generated by Hughes' desire to avoid saying anything which would harm Manning. For example, on direct examination Hughes testified that Man- ning had "just wanted to know why I had signed the let- ter," to which she had responded "that I wanted informa- tion about the Union." According to Hughes. after pointing out that Respondent would not close in the event of a strike, Manning had then inquired "how I felt about it now," at which point Hughes had complained about the number of telephone calls and backbiting which had result- ed from the Union's campaign. adding "if it could have been replayed I would never have signed anything. I would not have gotten involved. I was sick of the whole matter." Thus, on direct examination Hughes attributed her state- ments of dissatisfaction with the Union as resulting from Manning's questioning as to how Hughes now felt about the Union. Then, on cross-examination. Hughes testified that from the very beginning of their conversation, right after she had said something to the effect that she assumed they would be talking about the Union, she had volunteered that she was sorry that she had gotten involved with the Union, adding that she did not believe that Manning had had much of an opportunity to talk while she (Hughes) had been making these statements of regret about getting in- volved with the Union. The effect, of course, of this testi- mony was to implicitly contradict her prior testimony that Manning had "just wanted to know why I had signed the letter." A second contradiction emerges from Hughes' testimony concerning her acknowledgement during the meeting of having signed an authorization card and her preparation of a letter of revocation during the course of that same meet- ing. Asked on direct examination whether there had been mention during the meeting of revoking her card. Hughes responded: Yes. After I had told her that I was sick of what had been happening among the girls and with me person- ally I and I told her that I wished I had never signed anything. if I could go back I would not have, that I just wanted to blank out the whole thing and not be involved, and she said, "do you really feel like that?", and I said, "yes", and she said, "well, you could sign a letter rescinding your name", and I agreed to that. That a discussion of the authorization card had preceded Hughes' preparation of the letter is supported by the sub- stance of the letter which reads, "after careful consider- ation and evaluation of the matter at hand, I am volun- tarily requesting that my name be removed from your letter and interest card. [Emphasis supplied.l" Consequent- ly. Hughes' testimony on direct examination portrays the sequence of events as a discussion having occurred regard- ing the authorization card and her complaints about hav- ing gotten involved with the Union, followed by Manning's suggestion that she send a revocation letter if she was un- happy, after which the revocation letter was prepared. On cross-examination, however, the following series of questions and answers took place: Q. And, incidentally, isn't it true that when you said on examination, direct examination, when you were talking about what you had signed and discussed it with Deanna, isn't it true that you were talking about a letter, not cards? She didn't know you had signed the card at that time, had she? She knew you had signed a letter, the letter? A. Right. Q. Which was sent to the company? A. Right. Q. But you didn't indicate to her that you had signed something separately, a card, at that time? A. No. Q. Subsequently in that conversation you indicated to her that you had also signed a card, is that correct? A. I believe so. Thus at this point Hughes left the impression that the ini- tial phases of the conversation were devoted solely to dis- cussion of her signature on the letter and that there was no mention of her having signed the authorization card. Of course, it could have been possible that the initial phases of the conversation had been devoted to Hughes' complaining about having gotten involved with the Union and having signed the letter. followed by a gap in which 381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there had been additional conversation and after which Hughes mentioned having signed an authorization card and the letter of revocation had been prepared. This infer- ence, however, is quickly dispelled by the following se- quence of questions and answers: Q. And wasn't it pretty much near the beginning of that conversation that you had indicated to her that you had gotten all sorts of calls and that people were backstabbing each other and you were getting sick of it, and wasn't it right near the beginning of that con- versation? A. Yes. Q. Right after you said something to the effect I assume we are going to be talking about the union? A. Yes. Q. Following your complaints and the airing of your disgust if I can use that word with the backstab- bing and numerous telephone calls at all hours from numerous people did you indicate to her any expres- sion or by any other form of natural communication that you wished there were something that could be done to relieve you of this problem? A. I believe so. Q. And did at that time Mrs. Manning suggest that there is the possibility of revoking the card that you told her you had signed. A. Yes. Q. Did she say you should do it or I want you to do it or I direct you to do it, or did she say you could do it? A. She said you could. Q. Did you immediately seize upon that possibility? A. I don't know how immediate. Q. Well, I mean did you pick that up and pursue it? Q. Well, I didn't realize that that was possible. Q. You indicated to her I would like to do that? A. Yes. Q. And you wrote out on a piece of paper that you considered to be adequate and in the course of that did you turn to her while you were writing or after you had written but in the process either just during or after she suggested you might put it in that this was voluntary? A. Yes. These three segments of her testimony tend to indicate that Hughes was dissembling in an effort to avoid acknowledg- ing that a discussion of the fact that she had signed an authorization card had occurred early in her conversation. It appears, both from her above-quoted testimony on di- rect examination and from the second sequence of ques- tions and answers reproduced above, that her preparation of the revocation letter was a direct product of her corn- ments to Manning in response to the latter's questioning as to how Hughes felt about the Union. The inclusion of a reference to the "interest card" in the revocation letter leaves no doubt that the first above-quoted sequence of questions and answers indicating that she had not dis- cussed the fact that she had signed an authorization card until much later in the conversation is quite clearly at odds with her portrayal elsewhere of the substance of that con- versation. Hughes testified that while Manning did not specifically ask for information during their conversation, she had achieved the same purpose by using an approach which Hughes described as being "I assume. If you don't want to answer you don't have to answer or if you don't want to agree, you don't have to agree." Thus, according to Hughes. Manning had said that she assumed that Hughes had signed an authorization card in San Diego, to which Hughes agreed, and that she assumed that Hughes had been at Michaels' house when she had signed the card, to which Hughes also agreed. Hughes further testified that Manning had said that if Hughes felt like it or wanted to, she could identify whoever had been the union leader, but that on this point Hughes had declined to answer. After this, testified Hughes, Manning had asked if Carol Wash- ington was "the head," although Hughes conceded that she did not recall the exact words which Manning had spoken. Again Hughes declined to answer Manning's question. Although Manning denied having asked for the identity of the union leaders and having discussed the union leaders with Hughes, there were several points which she agreed had been covered during their conversation. For example, she agreed that she had mentioned Hughes' right to speak with whom she wished, but testified that this had occurred when, in response to her opening comment that she guessed that Hughes knew why they were meeting, Hughes had said that she was not supposed to talk to Manning. It was this, testified Manning, that led her to question wheth- er Hughes had surrendered her right to decide with whom she would speak and, testified Manning, in response Hughes had said that she guessed that she could talk to Manning and had then expressed serious reservations about signing the letter in view of information which she had received from people with whom she had subsequently discussed the matter. Manning further conceded that there had been a discus- sion of a San Diego meeting, attended by Washington, at which Hughes had signed the letter and an authorization card. However, she testified that this subject had arisen when she had expressed surprise at discovering that Hughes had signed the letter, and that, in response, Hughes had explained that when she had gone to San Diego to run a route she had been invited to attend a meeting, where union organizers and Washington had been present, at which she had signed the letter and the card, subsequently entertaining misgivings about having done so when she dis- covered that the San Diego route which she was running was not so clean as her own and yet the regular RSR would be obtaining the same money as she were the RSRs to become unionized. Finally, Manning acknowledged that there had been a discussion of the revocation letter, testifying that when Hughes had expressed sorrow at having signed the Union's letter and had asked her if anything could be done to cor- rect the situation, she had suggested that Hughes write a letter to the Union, requesting removal of her name. Ac- cording to Manning, Hughes asked what she should say in such a letter and Manning had responded that while she 382 L'EGGS PRODUCTS INCORPORATED could not tell Hughes what to say, the latter should prob- ably put something in the letter to the effect that it was voluntary. Both Manning and Hughes concurred that Hughes had prepared the above-quoted letter during the course of this meeting and after submitting it to Manning for inspection. had left it with Manning for transmittal to the Union.' 2 3. Concluding factual findings In arguing that the area managers' versions of what had been said to the RSRs should be credited, Respondent relies heavily upon the fact that the area manager, had been carefully instructed on January 24 as to the corn- ments which they could and should make to the RSRs. Given their lack of familiarity with organizational cam- paigns, it is unlikely, urges Respondent, that they would deviate from these instructions and, as there is nothing un- lawful in the restrictions imparted that morning by Rad- cliffe, the testimony of the RSRs-which Respondent characterizes variously as vague, incomplete, biased and conflicting-should not be credited. Yet there are certain points which serve to undermine this defense that the area managers had simply repeated the message imparted to them at the Saturday morning meeting. Most obvious were the confusion and lack of consistence among Respondent's officials when interrogated regarding the substance of those instructions. The January 24 meet- ing was portrayed as one in which the area managers novices in the area of organizational campaigns-were carefully instructed as to what they could tell their RSRs. Presumably. they were given the most careful and specific instructions and were left minimal, if any, leeway to pre- clude the possibility of inadvertent statements that could constitute violations of the Act--a result which, given their degree of expertise, both Radcliffe and Price were well aware could follow from any vague or ill-considered com- ment. Yet in describing the instructions issued, Manning testified simply "that we could give them the company po- sition on unions." Such an instruction could, of course. encompass a broad spectrum of statements, both lawful and unlawful. It is hardly the type of instruction that would be given to an inexperienced supervisor about to embark upon a careful explanation to employees of a company's viewpoint regarding the Union. Moreover, Manning was not the exception in attributing a vague in- struction to Radcliffe, for Johnson testified "he did tell us that it was within our rights to state the company's view- point on the situation and to express our own personal opin- ions." (Emphasis supplied.) These quite general comments were flushed out to some degree by the other supervisors who were present. although examination of the description recited by each leaves a continued ambiguity as to what the area managers were to say precisely to the RSRs whom the)' supervised. For ex- ample, Schwaegler testified: Then he indicated that he wanted the area managers to inform their RSRs the following week of first of all J2 The ultimate disposition of this letter will he discussed stirra the company's position on the union and how the company felt. Another thing that he went over, you know, we should tell the employees how we feel about a union and that we felt as a company that a union was unnec- essarv and that any of their problems or complaints could be taken care of with their immediate supervis- or. }He also mentioned that we would do everything that is legally possible to keep a union out. At no point did Schwaegler define what had been intended hv Radcliffe's purported instruction to "tell the employees how, we feel about a union." Seemingly. this answer was supplied b? Hetherington and Hardy, for the former testified: He told us that, like always, he would like us to go out and relay this information [regarding the wage in- crease] to the RSRs. He said he would also like us to point out the company's standpoint-the company's stand on unions; that they didn't feel there was a ne- cessity for an outside party or a third party to get involved. To mention a lot of the benefits that L'eggs has come up with over the past years: and that the compa- ny would do everything they legally could to keep the union from coming in. Consistently with this description, Hardy testified: And along with that [the general wage increase], also mention the company's position, how we felt about the events as they currently were. That, you know. we didn't feel that we needed a union. We didn't feel we needed a third party to run our business: that we had been successful. Told us, you know, that we had a good benefit pro- gram, and we treated our employees fairly and-in the way of benefits and wages. And that also if there should be any difficulty en- countered by the RSR in being harassed unduly or being bothered, or its unwarranted, you know, let the RSR, you know--"Let us know about it, and we will do what we can to help her out of the situation." Nevertheless, even when one analyzes the comments which Hetherington and Hardy attribute to Radcliffe. it quickly becomes evident that they are not, in reality, a guide suffi- cientls precise to avoid the risk that an unsophisticated supervisor would inadvertently violate the Act. 3 Yet, that was the impression that Respondent sought to convey re- garding the January 24 directions. Even Hardy's and Hetherington's vague descriptions were contradicted by the other witnesses who were present that morning. For example, Smith, who appeared to be the most precise of Respondent's witnesses, testified that Rad- " Pcrlon' ki,'oledecahle In Ihis field. such as Radchiffe and Price. are a.i.are that the risk of inadvertence is one aaiinsi shich employers must parltiularli guard in Ihe areai of Sec Stlai() of the Act, for "It is sufficient lo ldernolnltralte iha the emploser action has the etfieci of restraintl r coer c i on its ot n ces.r', It) deli ontr.ite thati the emrnpl)er inl, nded to pro- diltc hlia t effet (irlrm ril. I [Ihbr .as 133 (1976) See also I4mr, in I ul- hsr ,,:/c, li( 221) NI RB 414 4 1h (11'4)7: tancl, tr I, 219 NI RB ~~t~~~i [915,~IVIR 383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cliffe had instructed the area managers to "tell your people that L'eggs does not feel that it needs a union. It does not feel it needs an outsider. And you can tell your people that if you have any questions or I can help you in any way. or if you have been harassed, you can let me know." Omitted completely from Smith's description was any reference to telling the RSRs about Respondent's benefits. Similarly, when Johnson was asked if Radcliffe or anyone else had said how she was to begin her discussions with the RSRs, she responded: "' don't know if he actually stated any- thing. I know I came away with the impression that we could tell them that the company knew that there was union activity, but other than that there was nothing said." The coup de grace to Hardy's and Hetherington's descrip- tions, however, was provided by Winston-Salem officials Engle and Radcliffe, the latter of course being the individ- ual who had imparted the instructions to the area manag- ers that morning. Both testified unequivocably that Rad- cliffe had said only that the area managers could advise the RSRs that there was union activity in progress and that if any of them were harassed over the matter or had any' problems or questions, that they should not hesitate to ap- proach their area managers who would seek to provide whatever help they could. There was also a noteworthy sidelight conflict which arose when Hetherington, attempting to find support for his admitted statement to Quigley regarding her legal right to withdraw her name from the letter, testified that during the meeting on the morning of January 24 Radcliffe had stated that any RSR had "a legal right to withdraw her name if she wanted to." Thus, testified Hetherington, he had simply been relaying this message to Quigley when he later spoke with her. This, however, was flatly contradicted by Hetherington's Winston-Salem superior. Engle, who tes- tified that the area managers "were told as I recall, they were told that they could not ask the girls to revoke their cards. In fact, they were told not to discuss that at all." Though it might be argued that Hetherington was referring to withdrawal of Quigley's name from the letter, while En- gle had been referring to revocation of authorization cards, any such argument would be no more than mere hairsplit- ting, for it is clear from the context of Engle's testimony that he was referring to the subject of revocation generally'. In any event, not one other witness present at the January 24 meeting corroborated Hetherington's assertion that the subject of revocation had been discussed or that the area managers had been authorized to even mention the subject of withdrawal or reversal of position when speaking to the RSRs. A second matter which casts doubt upon the Respon- dent's argument that its witnesses should be credited on the basis of the instructions under which they were operating when they spoke with the RSRs is the similarity of some of the comments attributed to the area managers by various RSRs. Foremost in this regard is the repeated reference to punching timeclocks and withdrawal of the privilege of taking vans home. So far as the record discloses, there had never been prior discussions regarding these matters among the RSRs and there is no evidence of any indepen- dent circumstances that would have led seven RSRs Gaines, Crawford, Sindelar, Crouch, Weber, O'Malley. and Quigley-to suddenly begin considering these subjects during the week following receipt by Respondent of the Union's letter. Indeed, O'Malley had never been favorably disposed toward the Union and consequently, her testi- mony could hardly be encompassed within the class that Respondent characterizes as biased in favor of the Union. Moreover, both Crawford and Weber subsequently made efforts to withdraw their authorization cards and, accord- ingly, while there might be some doubt regarding Craw- ford, there surely could have been no doubt that Weber, by the time of the hearing, was no longer a union supporter. Furthermore, the comments regarding the subjects of time- clocks and vans were attributed to two area managers, Hetherington and Johnson, and given the relatively isolat- ed and separate nature of the two areas for which these area managers are responsible, it hardly seems likely that the RSRs from two separate areas would suddenly, inde- pendently become concerned about the same two matters. Indeed, Johnson in effect conceded being responsible for initiating the discussions of clocks and vans when she de- scribed her general format as including a reference to the independence afforded RSRs by being able to go home whenever they wished. Although the description did not encompass a specific admission of references to vans and to timeclocks, these certainly would be the types of benefit no longer available if the RSRs lost that independence. In fact, Johnson specifically admitted that there had been a discussion of timeclocks and vans during her meeting with Crawford, although she attributed the initiation of conver- sation regarding those matters to Crawford. Yet, there is no evidence that would tend to support a finding that Craw- ford had suddenly become concerned about these matters. Johnson's testimony regarding the uniformity of her comments to all RSRs whom she supervised was complete- ly dispelled when she described her comments to Crouch regarding Respondent's policy of promoting women with- out college degrees from the ranks, the 2 days off which Crouch had been able to obtain when she had worked her route ahead, and the failure to dock Crouch for time which she had missed when fogged in at the San Jose airport. Quite clearly, these matters were not mentioned to other RSRs as they pertained, at least with respect to the latter two matters, exclusively to Crouch. Johnson did not testify that she had referred to these matters when speaking with any other RSR. Moreover, the fact that Johnson conceded- ly singled out matters which were pertinent only to Crouch's employment history during their discussion lends credence to other RSRs' testimony that during their meet- ings with Johnson, she had similarly made references to matters unique to the particular RSR with whom she was speaking. For example, Weber attributed to Johnson a comment regarding the effect that strikes might have on RSRs who were the sole breadwinners for their families, a group which encompassed Weber. Crawford, a probation- ary employee, testified that Johnson had made reference to probationary employees. Weller, who was encountering medical problems necessitating that she take time off dur- ing the working day, testified that Johnson had mentioned that if the RSRs were unionized, such a benefit might not be available. All of this testimony becomes more credible when viewed in light of Johnson's admission that during 384 L'EGGS PRODUCTS INCORPORATED her conversation with Crouch she had referred to employ- ment benefits extended uniquely to Crouch. There is yet another factor which supports the RSRs' testimony that Johnson made a number of comments to them not specifically encompassed within her own descrip- tion of her purported generalized presentation. A number of RSRs whom Johnson supervised testified in this pro- ceeding. One RSR whom the General Counsel called was Kathryn Nuro, admittedly opposed to the Union. Yet not one of these RSRs, including Nuro, corroborated Johnson's assertion that she had made the type of presen- tation which she had described as being her generalized presentation. Nor did Respondent call any other RSR with whom Johnson had spoken to corroborate Johnson's ver- sion of the standardized presentation which she had assert- edly delivered to each RSR. Consequently, there is no em- ployee-corroboration for Johnson's recitation of the comments which she purportedly delivered to every RSR with whom she spoke. Similarly, while the other area man- agers did not contend that they had made a uniform pre- sentation, no employee was called to corroborate their con- tentions that they had simply told the RSRs whom theN supervised what they' had been told to say during their meeting on January 24. True, the Board has held that an employer's failure to call an employee to corroborate the testimony of that em- ployer's officials cannot be the basis of an adverse infer- ence as to the credibility of the employer's witnesses. Yet, such cases have been based upon the theory that the em- ployee is equally available to the General Counsel, who, bv failing to call him, notwithstanding his apparent availabili- ty, can equally be inferred not to have discovered any con- tradictory testimony from that particular employee. In the instant case, however, the General Counsel has called a series of employees, each of whom testified to a number of damaging comments made by their area managers. Con- versely, Respondent failed to call even a single employee who would support the area managers' testimony regard- ing their general approach in speaking with the RSRs whom they supervised. Thus the situation presented in the instant case is somewhat different from that presented in the cases where the Board has refused or declined to draw an adverse inference against an employer from its failure to call an employee as a corroborating witness. As noted above, the comments regarding timeclocks and vans transcended area lines they were attributed to more than one area manager. This was also true with regard to other comments. Thus, seven RSRs testified that they had been the objects of statements designed to elicit a response concerning what they knew about the Union. To Johnson. Crawford attributed an inquiry as to whether she had heard any information regarding the Union and Weber at- tributed a repetitive statement regarding lack of knowledge as to whether Weber had been contacted--until the repeti- tion reached the point where Weber felt compelled to vol- unteer that she had in fact been contacted. Pierce testified that Hetherington had asked whether she had gone to any union meetings or had been contacted by anyone from the Union. Manning was charged by Sautters with asking if she knew anything about the Union's organizing drive or knew anything about a meeting and by Kuriyama with asking if she had heard anything about the Union. In addi- tion, Hughes testified that Manning had asked what she knew about the Union. Finally, Lisman testified that Smith had initiated their conversation by saying "I want to talk to you" and by then asking what Lisman knew about the Union and about joining it. In addition to the questions designed to ascertain if RSRs were aware of the Union's campaign, there were an additional number of questions, attributed to area manag- ers, which were designed to elicit a response concerning the source and the scope of the Union's support. Thus, when she finally acknowledged having been contacted by the Union, Weber testified that Johnson had then asked if she would like to reveal the identity of the person who had contacted her, and Crawford testified that Johnson had inquired as to the location of the union meeting which Crawford had attended. Getchel testified that after answer- ing Smith's question concerning how she had been ap- proached to sign the letter, Smith had then asked if Getchel wanted to reveal the identity of the employee who had brought the letter to Getchel. Pierce testified that Hether- ington had asked if she intended to tell him about some employees trying to form a union. Finally, Manning, testi- fied Kuriyama, had asked from whom Kuriyama had learned about the Union and Hughes testified that, using the "I assume" approach of questioning, Manning had in- quired if Hughes had signed her card in San Diego, wheth- er the card had been signed at Michaels' house, and, if Hughes desired to answer, the identity of the leader. men- tioning Carol Washington as a possibility. Another area of questioning that transcended area lines involved the depth of the particular RSR's feelings con- cerning the Union. Thus, both Glauber and Crawford de- scribed questions by Johnson concerning how each felt about the Union and Sindelar, who displayed an apparent concern about her continued employment status with Re- spondent, testified initially that she had been asked by Johnson if she had an opinion regarding the Union. al- though on cross-examination she then testified that she had not been asked for her opinion. Hughes testified that Man- ning had asked how Hughes now felt about the Union and Kuriyama testified that Manning had inquired what she had said when she had been approached concerning the Union. After being told of the general wage increase, Quig- ley testified that Hetherington had asked her opinion as to the effect which the increase would have on employee atti- tudes toward the Union. Yet another area involved reasons for commencement of the organizing campaign, with Gaines testifying that John- son had asked her what was the problem and with Weber testifying that Johnson had inquired as to whether Weber had any problems. Quigley, Michaels, and O'Malley each attributed to Hetherington statements that were in effect questions as to why the RSRs had contacted a union with- out first speaking with him regarding their problems. Such comments were, of course, similar to the one which Schmidt attributed to Hardy. who had also asked Schmidt if money was the basic problem. and if she was making enough money. A similar question was attributed to Smith. whom Getchel testified had inquired why Getchel had signed the letter and if the reason had been because Get- 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chel was unhappy with her job. The final area of similarity of comments attributed to area managers involved the subject of revocation. Glad and Michaels both testified that Hetherington had suggest- ed revocation, though the latter claimed that the suggestion had been in response to her expression of disenchantment with having gotten involved with the Union. Both testified that Hetherington had mentioned sending copies of such retractions to Respondent--even though Michaels had re- jected Hetherington's suggestion that she withdraw her sig- nature. Similarly, Quigley testified that Hetherington had asked her to take a "step back" and O'Malley testified that Hetherington had told her that it was still not too late for employees to write revocation letters. Nor was Hethering- ton the only supervisor to whom such statements were at- tributed, for Hughes testified that upon expressing disen- chantment with her support for the Union, Manning had responded by asking if Hughes truly felt that way and by suggesting that Hughes could sign a letter rescinding her signature. In fact, it was based upon Manning's statement that Hughes then wrote out a letter revoking her support for the Union. Of course, as Respondent points out in its brief, not all RSRs, even those supervised by a single area manager, at- tributed the same comments to their supervisor. Yet. the conflicting versions of the instructions imparted by Rad- cliffe at the January 24 meeting, as well as the vagueness which characterized even the disputed detailed accounts of those directions, hardly serve to support Respondent's as- sertion that, in meeting with the RSRs, the area managers were following a carefully formulated and phrased se- quence of comments designed to avoid the commission of unfair labor practices. Indeed, even the recitations of the area managers as to what they said to the RSRs disclose that the supervisors were not adhering to a common, law- fully worded script. Thus, absent credible evidence which would support a conclusion that all area managers were delivering identical messages to all RSRs, it is not surpris- ing that different remarks were made to different RSRs. Nonetheless, as set forth above, there were similarities among a number of comments made to RSRs by various area managers. In fact, it is the similarities and differences between the comments attributed to the area managers by the various RSRs who testified which lead to a conclusion quite contrary to the one posited by Respondent: That Re- spondent's Winston-Salem officials did instruct the area managers on what to say when meeting with the RSRs. but that these instructions contemplated a careful tailoring of different, though generically similar, comments to individ- ual RSRs with the ultimate objective of ascertaining as much as possible about the extent of support for the Union's campaign while at the same time undermining that support through individually tailored and varied threats and inherently coercive comments. Certainly some support is provided for such a conclusion by the comments attrib- uted to Johnson by Weber, Crawford, Crouch, and Weller. Each of these RSRs described comments by Johnson that were uniquely tailored to the specific situation which each of them confronted. Moreover, by varying the comments made to RSRs, Respondent would provide a ready-made defense, based upon that very variance, to an unfair labor practice charge-a possibility very much on the minds of its officials as admitted in connection with their carefully formulated plan for effecting Wade's termination, dis- cussed infra. Yet, the above-categorized comments, made by more than one area manager in most areas, demon- strated that they did not result from a single area manager's misconstruction of Radcliffe's instructions, but were, instead, the product of common direction. The issuance of such instructions on January 24 would account for the vague and inconsistent testimony advanced by Respondent's witnesses in attempting to explain what instructions had been imparted by Radcliffe. Unable to recite what he actually said, each witness attempted to con- struct a sequence of statements that would be lawful. But, in so doing they were unable to attain specificity and to maintain consistency. As Respondent's Winston-Salem of- ficials were most sophisticated in the area of labor rela- tions, they would have appreciated the increased difficulty of proving the commission of unfair labor practices where a combined approach of individual meetings and variance in comments directed to the RSRs was employed. Conversely, these Winston-Salem officials must surely have realized that by dispatching area managers to meet individually with RSRs, they could not help avoiding a situation where at least some RSRs would misconstrue lawful campaign statements. Thus, if in fact it were truly Respondent's object to engage in a lawful campaign and so avoid charges of unfair labor practices, it was using the mechanism least likely to attain that objective. But then, Respondent's witnesses denied that they were attempting to campaign at this point in time. Rather, they attributed to the Winston-Salem officials, during the January 24 meet- ing, statements to the effect that Respondent did not in- tend to commence its campaign at this point in time be- cause it wanted to avoid peaking too soon. If true, the convening of individual meetings to advance Respondent's position seems out of place and contrary to Respondent's purported overall game plan. There is yet another factor arising from Respondent's defense, tending to show not only that the remarks attrib- uted to the area managers were made but also that they were made as part of a designed effort to ascertain the depth of the union support and to unlawfully undermine that support. According to Radcliffe and Engle, the pur- pose for the Winston-Salem's officials' meetings with the area managers had been to ascertain if there were opera- tional, managerial, or supervisorial problems that might have given rise to employee dissatisfaction. Presumably, therefore, such problems as were mentioned during the meetings with the area managers would have been the ob- ject of both careful attention and meticulous retention in the memories of the Winston-Salem officials. Nevertheless, as set forth in section IV, B, I, above, it was on this very point that an inordinate amount of conflicting testimony was advanced by Respondent's witnesses. While Radcliffe, Price, and Engle each asserted that at the breakfast meet- ing Hardy had responded to their questions concerning such problems by describing the San Fernando Valley meeting, neither Hardy nor Schwaegler made any refer- ence to that meeting in their descriptions of the breakfast conversation. Hetherington testified that when interrogat- 386 L'EGGS PRODUCTS INCORPORATED ed concerning these matters, he had mentioned only the heavier workload emanating from the holiday season and complaints regarding pay. Radcliffe corroborated him in this regard, but added that Hetherington had stated also that matters such as responses from the warehouse and proper receipt of product were basically satisfactory. En- gle, however, attributed to Hetherington complaints re- garding the incorrect dispatch of orders to San Diego. Radcliffe, Engle, and Smith each testified that the latter had mentioned only Wade and the problems that had led to the San Fernando Valley meeting. in responding to questions about operational, managerial, and supervisorial problems. However, Schwaegler asserted that Smith had complained aobut the inaccurate computer reports that had led to "strange orders for her girls." In testimony best characterized as being vague, Engle testified that Manning had complained about a lack of communications which had assertedly led to confusion in directions. Manning. however, testified that she had answered the questions con- cerning operational, managerial, and supervisorial prob- lems, by mentioning only that an increased workload on some routes was necessitating rerouting. The high-water mark of the conflicts in this particular area was reached in the testimony concerning the meeting with Warehouse Manager Batty. Radcliffe testified that other than complaints about Kelly, Batty had denied hav- ing any managerial or operational problems. Price specifi- cally testified that he had paid little attention to Batty's comments concerning Kelly because this did not represent an operational problem. Yet Engle conceded that the prob- lem with Kelly was in fact operational-and therefore the very type of problem which the Winston-Salem officials had purportedlyjourneyed to Buena Park to ascertain- -for the problem with Kelly, assertedly described by Batty. was one of which was leading to problems with the RSRs. This in fact was also the way in which Batty described the mat- ter and, in direct contradiction of his superiors. Batty listed a litany of problems which he purportedly had recited in response to the Winston-Salem officials' questions regard- ing operational, managerial, and supervisorial problems. Yet, no other official of Respondent corroborated Batty in this respect. In these circumstances, there is a firm basis for conclud- ing that the purpose for the Winston-Salem officials' trip to Buena Park was, contrary to their assertions, something other than to ascertain operational, managerial, and super- visorial problems. Several other points support this conclu- sion as well. First, even a cursory view of the various ac- counts of the meeting discloses that the primary emphasis of the conversations had been directed toward ascertaining the scope and depth of support for the Union, as opposed to the reasons for employee dissatisfaction. This is most clearly illustrated by the accounts of what had transpired upon disclosure to the area managers of the identities of the employees who had signed the Union's letter. In almost every account of what then took place, the only question attributed to the Winston-Salem officials at that point was not whether these particular RSRs were experiencing unique problems, but rather, was whether, in light of the disclosure of these names, the area managers maintained their belief that Respondent would prevail in an election. Second, although various problems were purportedly ad- vanced to the Winston-Salem officials with respect to oper- ations, management, and supervision of the branch, there is not one scintilla of evidence that Respondent's officials so much as made any' notes of or discussed those topics after they had been raised. Indeed, though Kelly was as- sertedly the object of considerable discussion due to the problems that his work performance purportedly posed for the RSRs, Respondent made seemingly no effort to consid- er the effect of the situation.)4 Finally, there was a decided reluctance on the part of Respondent's witnesses to acknowledge any discussion of the sympathies of any RSRs other than the ones who had signed the letter. Only by confronting Radcliffe with his affidavit was the General Counsel able to extract from him an admission that at the breakfast meeting with Hardy and Schwaegler there had been a review of "each and every route sales representative . . . as to whether that individual would favor the union or the company if it came down to that . . . ." No other witness who had been present during this meeting made even the slightest reference to this por- tion of that conversation-though Radcliffe was the first witness called by Respondent and accordingly, all of Re- spondent's other witnesses testified subsequently. In this respect there is a similarity to the meeting of January 24. for every one of Respondent's officials who attended the group meeting that morning testified that an area manager had complained about the inequity of the preelection rules which, that area manager asserted, enable the Union to operate freels while at the same time restricting the scope of Respondent's conduct. Although each area manager de- scribed the statement as being made, not one of them ad- mitted to being the speaker and no official of Respondent identified the area manager who had made that statement. Based upon the foregoing analysis. the following factual conclusions appear to be supported by the record. First. the trip by Respondent's Winston-Salem officials was not motivated by concern with the operational, managerial, and supervisorial problems in the Buena Park District. Rather, this was simply the pretextual reason advanced for the trip. Thus, the difficulty encountered when Respon- dent's witnesses attempted to construct detailed and con- sistent accounts of what had been said during the meetings in connection with that topic. Second. the January 23 meetings with the area managers were designed to ascertain the scope and depth of support for the Union among the RSRs. In an apparent effort to make this facet of their meetings appear innocuous. Re- spondent's witnesses attempted to minimize the comments which had been exchanged regarding the number of RSRs who were supporting the Union and the identities of those RSRs. In doing so. Respondent's witnesses created a num- ber of other conflicts concerning what had been said dur- ing the meetings with the area managers on January 23- whether or not the Union's campaign had been mentioned at the outset of the meetings. whether all RSRs were dis- cussed with each area manager or whether each area man- ager was interrogated solely about the RSRs whom he or 4 Keu l's trminaltllo s d s ftu, d I i nt he pnrdtl. of n dl ,u~Mwns iirlSnl fr...l ithi mileeti[ng 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she supervised, whether the area managers were asked de- tailed questions about the backgrounds of the RSRs or were simply asked which RSRs were believed to be pro- union, whether Manning listed Hughes as a possible union supporter or was instead surprised to learn that Hughes had signed the letter received by Respondent on January 21, whether Johnson identified the possible union support- ers before being shown the letter, and, in fact, whether the letter had been shown at all to the area managers during these meetings. Third, at the meeting of January 24 the area managers were not instructed to confine their remarks to the RSRs to lawful statements of Respondent's opposition to the Union. Rather, the nationwide wage increases were to be used as an excuse for the area managers to conduct indi- vidual meetings with each RSR whom he or she supervised, thereby providing a reason for holding such meetings should they later become the subject of litigation, which of course has happened. In this manner, the nationwide wage increase was utilized as a touchstone to provide Respon- dent with a vehicle for interrogating the RSRs, for threat- ening them with the adverse consequences that would fol- low unionization and for attempting to persuade them to withdraw their support fromn the Union and oppose its ef- forts to become their representative. Finally, the area managers did carry out these instruc- tions when they met with the RSRs whom they supervised. 4. Conclusions of law regarding the area manager-RSR meetings In its brief, Respondent argues that the comments attrib- uted to the RSRs do not rise to the level of unfair labor practices. For example, with regard to the comments con- cerning the possibility that RSRs would have to punch in and out each day and would have to leave their vans at Respondent's facility, Respondent contends that as the RSRs were told that such consequences were merely "pos- sibilities" or merely "might" result from unionization, the comments were no more than mere predictions, rather than threats, and in any event weie no more than personal opin- ions of the area managers who made the statements, i.e., Johnson and Hetherington. Yet Respondent can hardly es- cape liability merely by characterizing the utterances of its area managers as expressions of personal opinion. See J. S. Ahercrombie ('ompanty, 83 NLRB 524, 530 (1949), affd. per curiam 180 F.2d 578 (C.A. 5, 1950). It is of course true that an employer is entitled to make predictions regarding the consequences of unionization of its employees. Nevertheless, the precise scope of an em- ployer's expression must be weighed against the employees' equal rights embodied in Section 7, "And any balancing of those rights must take into account the economic depen- dence of the employees on their employers, and the neces- sary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." N.L..R.B. v. Gissel Packing Co., Inc., 395 U.S. 575. 617 (1969). To end such an inquiry merely because the employ- er prefaces its references to the benefits at issue with such words as "possibly," "likely," or "may" is to ignore this admonition. "To exalt from (sic) above substance in this manner would invite widespread circumvention of Section 8(a)(1) of the Act." Abercrombie, supra. To the contrary, it was comments prefaced by the word "may" that the Su- preme Court condemned expressly in Gissel, 395 U.S. at 618-619. Accord: Drug Package Company, Inc., 228 NLRB 108, 110 (1977) ("might"); Scientific Components Corpora- tion d/b/a Mini-Circuits Laboratory, 228 NLRB 601, 604 (1977) ("think"); Monroe Manufacturing Company, Inc., 200 NLRB 62, 71 (1972) ("might"); Oscar Enterprises, Inc., et al., 214 NLRB 823 (1974) ( "may" ). Rather, as endorsed by the Supreme Court in Gissel, su- pra, an employer is free to state his belief regarding the effects of unionization only so long as the asserted even- tuality "is capable of proof." Here, Respondent produced no evidence that there was any reasonable, even plausible, basis for warning about institution of a timeclock proce- dure and daily return of the vans to its facility should the RSRs become unionized. Moreover, there has been no showing that imposition of such requirements would result from circumstances beyond Respondent's control.35 Rather the area managers merely had asserted that these re- strictions and unionization, "inevitable go hand in hand together-as in fact it was in the employer's power to bring about." Honeywell, Inc., Photographic Products Division, 225 NLRB 617, 618 (1976). Inasmuch as Respondent has "failed to demonstrate that its belief is based upon objec- tive considerations," and has "failed to affirmatively estab- lish that any such adverse economic effects would result from circumstances beyond [its] control," these statements by Johnson and Hetherington to RSRs constitute threats of economic reprisal should the RSRs select the Union as their bargaining representative. Honeywell, supra. For the same reason, I find that the following comments, which had reference to benefits which RSRs had enjoyed or were enjoying, were designed as implied threats of repri- sals should the RSRs become unionized: Johnson's pointed reference to the fact that Crawford was on probation, her comments to Crouch regarding possible restrictions on ex- tra time off and early vacation, and her comments to Wel- ler concerning the same rate for all RSRs, and time off during the day for medical treatment. All were made dur- ing the course of conversations in which Respondent's op- position to unionization of the RSRs was expressed and all were made in circumstances devoid of any showing that the) were based upon objective considerations. It is against the background of these specific threats that one must view the various comments to RSRs asserting that Respondent would use every lawful means possible to avoid unionization. In light of the unlawful threats and the other unlawful conduct specified below, it would appear that these comments fall within the Board's doctrine that "Respondent intended to convey to the employees . . . 'While Respondent might .rgue that the area managers were merel? adsising the RSRs what consequences could result from negotiations with the uniln. "Respondent did not te:l the emploees that the loss of benefits would not be automatic and would occur onily if Respondent and the U!nion ho agreed through collective balrgaining" Sportspal. Inc., 214 NL.RB 917 (1974) Absent auch a qualification. those statements could reasonably be regarded as a threat of more onerous working conditions and of a reduction in benefits. ( f Strnpzf lto,r ( orepaon. Inc 21)8 Ni RB 431. 432 (1974). 388 I.'EGGS PRODUCTS INCORPORATED that Respondent was prepared to do whatever was neces- sary to keep the union out, including resorting to illegal measures." The Lundv Packing Compan'. 223 NLRB 139 (1976). enforcement denied per curianl 549 F.2d 300 (C.A. 4, 1977). As set forth in section IV, b. 3. above. the area manager's conversations were replete with questions di- rected to the RSRs, including those designed to ascertain what individual RSRs knew about the Union. those de- signed to ascertain the source and scope of the union sup- port, those designed to ascertain the reasons for com- mencement of the organizing campaign. and those designed to ascertain the depth or degree of the RSRs' feeling of support for the Union. Not every RSR was ques- tioned, but most were. Although questions from each one of the above-enumerated areas were not directed at each RSR, the fact remains that Respondent already knew the names of the 13 RSRs who were supporting the Union and with the information generated by the various questions put to RSRs it would be able to ascertain to a much greater degree the source, scope, and reason for the Union's sup- port among the RSRs. No valid reason has been advanced for asking these questions, no RSR was assured that she had the right to engage in union activity, and no assurances were provided against reprisals. To the contrary, many of the conversa- tions in which these questions were asked also included threats of reprisals should the RSRs become unionized- threats which, given the fact that these individual meetings encompassed all RSRs, would most likely be repeated among the RSRs when they discussed what had taken place among themselves. I find that by asking such ques- tions in the circumstances present, Respondent did violate Section 8(a)(l) of the Act. See Puhliser.' Offet, Inc., 225 NLRB 1045. 1046 (1976); Queen ('ifY Tran.s/er Inc.. 203 NLRB 7. fn. I, 13 (1973): cf. Mike l' elv. Sr.5, et a., h a R & M Electric Suppli Co.. 200 NLRB 603. fn. 5 (1972). This particular violative conduct was carried one step further by Radcliffe's admission that he had told the area managers to advise RSRs that they could report any har- assment by union supporters. and by the evidence that this invitation was extended to at least some of the RSRs. At the time that Radcliffe imparted the instruction, there was no evidence that RSRs had been harassed by the lInion. Moreover. while some RSRs had complained of being bothered by the problems arising among themselves over the campaign, there is no evidence that any of them voiced complaints rising to the level of harassment during either their meetings with the area managers or at an', other time during January. Absent such evidence. the invitation to report harassment can only be construed "as a not too subtle attempt by Respondent to persuade its employees to inform management as to the identlit of the L nion's ad- herents, and tended to restrain and coerce emphloees in their right to engage in protected union activities." P'olron Products of Mlisi.sippi, Inc.. 217 NLRB 704. 707 (1975). Accord: Bank of St. Loui.s. 191 NI.RB 669. 673 (1971). During his meetings with the RSRs whomn he supervised. Hetherington. contrary to Radcliffe's admonition as re- lated b) Engle, mentioned to Michaels. (,lad. Quigle,. and O'Malley that withdrawal of support for the tIl mn was a possibility and Hughes attributed a similar comment to Manning. While Michaels testified that Hetherington had advised her of her right to withdraw only after she had expressed disenchantment with the Union, Hetherington initiated the subject of revocation in his conversations with the other three RSRs whom he supervised. Similarly. as related bh Hlughes on direct examination. it had been Man- ning who had first broached the subject of recision during their conversation. Although Hughes. in effect, later at- tempted to retract that description, her meandering and inconsistent testimony appeared motivated by her friend- ship with Manning and by her desire to ingratiate herself with Respondent through the device of testifying consis- tently with Respondent's position as she construed it. Ac- cordingl,. I credit the narrative account as related by Hughes on direct examination and find that it was Man- ning who initiated the conversation of revocation when Hughes expressed unhappiness with having signed the au- thorization card. As Respondent points out in its brief, it is not a per se violation of the Act for an employer to advise employees that they can revoke or withdraw their signatures from au- thorization cards or petitions on behalf of a union. How- ever, where the employer initiates such action the Board has found a violation of Section 8(a)(l) of the Act. See Lihertr Hlomes. Inc.. 216 NLRB 1102. 1106 (1975); Manila Manuatlcturing Companr. 171 NLRB 1259, 1272-73 (1968). Moreover, these comments took place in the context of a campaign of interrogation and threats with the result that the)y were made in an "inhibiting setting." North American Avlition, Inc. 163 NLRB 863. 870 (1967). Finally. in sug- gesting that both Glad and Michaels provide copies of any such revocation letters to Respondent. it is clear that Heth- erington was attempting to enable "Respondent to identify which employees. if any. chose to withdraw their [signa- tures]. thereby constituting an indirect means of unlawful interrogation." Hatteras Yachts, AMF Incorporated, 207 NLRB 1043, fn. 3 (1973). Therefore, I find that by these comments Respondent. through Hetherington and Man- ning, violated Section 8(a)( I ) of the Act. The General Counsel also alleges that during these con- versations. Respondent's area managers conveNed the im- pression of surveillance of employees' union activities. In their bricf. however. counsel for the General Counsel point only to Maniing's comment to Hughes that she "assumed" that fHughes had signed her card in San Diego while at .Michaels' house. No similar specification of conduct creat- ing the impression of surveillance is attributed to any other area manager during these meetings. nor to Manning dur- ing her meetings with any other of the RSRs whom she superv ised. As set forth in section IV, B. 2, above, Hughes testified that Manning had questioned her by using the "I assume approach. ('onsequently. the situation presented by the particular comment referred to by the General Counsel is not so much a statement of knowledge by Man- ning but rather. as Ilughes related, a technique of question- ing. In these circumstances particularly as it is clear that the emploNee who was the object of the statement so un- dersto,,d it I find that while the statement constitutes un- lawful interrogattion, it does not, in the circumstances. con- ,titute c eatlioll of the impression of surveillance. It is a 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD technique for seeking information and not a means for re- lating the possession of such information. 6 See, e.g., South Shore Hospital, 229 NLRB 363, 364 (1977). C. The Telephone ('alls by Arlene Hungale and Wendy cjlauber I. The circumstances of the calls At the end of the January 24 meeting, Radcliffe had announced to the Buena Park management that Price would be remaining to assist them with any questions or problems which might arise. Price testified that on Sunday evening, January 25, Manning had telephoned to report that she had spoken with RSR Arlene Hungate, who had indicated that she wanted no part of the Union and desired to speak with someone to ascertain her rights as an em- ployee. After receiving Manning's assurance that Hungate was acting "voluntarily," Price testified that he had told Manning that he would meet with Hungate and later that evening Manning called to secure Price's agreement to a meeting on the following morning. Manning offered no testimony on this point. On the following morning, Hungate met with Price and Schwaegler. Price testified that Schwaegler had been pres- ent to aid Price in moving to another motel. Schwaegler merely testified that he and Price had been having break- fast when Hungate had arrived. According to Price, Hun- gate related that she had spoken with Manning the prior day and wanted no part of the Union, that she had been a member of the Union before and had been left homeless when they went on strike, that she would not be part of the Union, that she would have to leave Respondent's employ- ment if the Union became the RSRs' representative as she could not work under those circumstances, and accord- ingly. that she wanted to do whatever she could as an em- ployee to keep the Union out. He testified that he had then told her that she had the right to express her opinion to the other employees, but that he had no right to assist or help her in any way. Nevertheless, testified Price, Hungate had requested telephone numbers for certain employees so that she could advise them of her past experiences with the Union and he had obtained those numbers for her from his files. Pleading lack of complete recollection, Schwaegler testi- fied that he remembered only that Hungate had stated that she was against the Union and wanted to do everything that she could to keep it out. He was unable to recall whether liungate had advanced any reasons regarding her desire not to be involved in a union. He did recall that she had requested Price to confirm some telephone numbers if he could do so, to which Price had made a response al- though he did not remember precisely what had been said by Price. When it was pointed out that in his affidavit there appeared a statement to the effect that Price expressed pleasure at Hungate's intention to advise employees of her feelings, Schwaegler testified that by this he had meant that Price had told Hungate to come up to his room, where he 36 Of course, this Iype of violation was committed by Hetheringlon in November 197', as discussed in sec. IV, A, 2, supra. would verify the telephone numbers and that to him, "that is expressing pleasure. If he had not been happy with that situation he would have said 'no, you can't do that.'" Frankly, that was not a particularly convincing explana- tion, nor was it advanced in a convincing manner. Hungate was not the only RSR with whom Price spoke regarding calls opposing the Union. On the evening of Monday, January 26, Johnson had telephoned Glauber, with whom she had met earlier that day, to inquire if Glau- ber would like to meet with someone from Winston-Salem regarding her expressed desire for more information so that she could be effective in opposing the Union when she spoke to other RSRs. When Glauber agreed, a meeting was arranged for the following morning. Glauber testified that prior to this meeting she had tele- phoned Johnson, requesting the names and telephone numbers of RSRs whom she could call to express her opin- ions. According to Glauber, Johnson had promised to pro- vide this information during their meeting and, thus, when Glauber had arrived at the motel, but before Price had joined them, she had renewed her request and Johnson had then read off five or six names and telephone numbers from her personal phone book. Johnson's testimony on this particular facet of the case did not differ materially from that of Glauber, save for one matter: Johnson testified that Glauber had said that she did not know the telephone numbers of some of the RSRs and that she (Johnson) had merely provided telephone numbers for RSRs whom Glau- ber named, adding that she did not possess the numbers of all of the RSRs whom Glauber had named. Once Price joined the two women, there was a conversa- tion in the motel coffee shop followed by a trip to Price's room. Glauber testified that during the conversation there had been a general discussion of the election process after which she had expressed her view that she was against the Union, that she was very happy with her job and the pay, and that there were too many things that might be taken away from her should the RSRs become unionized, such as the possibility that vans would have to be returned to Re- spondent's facility every day and the added possibility that RSRs would have to check in and out daily. According to Glauber. she had then asked Price what the Union actually meant, and what Respondent felt would happen if the RSRs should become unionized, to which Price responded that there could be a lot of changes if the RSRs became unionized; that Respondent obviously did not want to go union; that he felt that some of the RSRs had signed "white cards" without knowing what they were signing: that if a strike occurred, as had been the case with other unions, "there could be chances of pay not, there is no pay or anything like that"; and, "just little general things that I was asking them but can't recall everything." Glauber's reference to "white cards" was interesting for Price denied having said anything to Glauber about "white cards," contending that he had been unaware at that time that authorization cards had been signed and further, that he did not learn that the cards had been white in color until the hearing had opened. However, Glauber testified that when the three of them had gone to Price's room following their discussion in the coffeeshop, Price had given her a list of names and telephone numbers, saying that these were 390 L'EGGS PRODUCTS INCORPORATED RSRs who had met, signed cards, and wanted a union. She later testified that Price had mentioned that only some of the RSRs whose names he was giving her had signed "white cards," but that he was not sure which ones had done so and which ones had not. On recross-examination, however, Glauber testified that there had been a reference during the conversation to some RSRs being for the Union, as they had signed the letter received by Respon- dent on January 21, but she was unable to recall if it had been Johnson or Price who made the statement. Then, she ultimately testified that it was possible that either Johnson or Price had discussed with her the fact that they knew certain RSRs had favored the Union because of a letter that Respondent had received with 13 names on it. From this testimony it is urged that it can be inferred that Glauber had simply confused the authorization cards with the letter in reciting the comments made to her that day. Yet during the conversation Price admittedly had ad- vised Glauber, as discussed infra, that the letter had been an unusual organizing approach. Consequently, she was fully capable of distinguishing between the two. Moreover. had the reference been solely to the letter, there would have been no need for Price to mention, as Glauber testi- fied, that he was not sure which ones had signed and which ones had not signed. That, of course, was clearly evident from the letter. Finally, at no point did Glauber retract her testimony with respect to the mention of "white cards" during the course of her conversation that morning with Johnson and Price. I find that Price did refer to the fact that some RSRs had signed authorization cards during his conversation with Glauber. Both Johnson and Price testified that when the latter had first arrived, he had inquired immediately if Glauber was present of her own free will and because she wanted to be present, to which Glauber responded affirmatively, adding that it was her desire to tell other RSRs of her opposition to the Union. Johnson and Price testified that Glauber had then expressed her lack of knowledge about unions and had requested that Price provide information regarding the subject. after which Price had recited a general description of the election process. Johnson testified that Price "may have told her some other stuff but it hasn't stuck." Price added that he had told Glauber of the letter, pointing out that it was an approach which he had not encountered in the past, and he further testified that after Glauber had expressed her desire to tell other RSRs of her opposition to the Union, he had merely told her that she had the right to do so, but that he could not be legally involved in anything that she did. Neither he nor Johnson denied the statements which Glauber attributed to him regarding the conse- quences which unionization could occasion. While Johnson and Price both testified that Glauber had requested only the telephone numbers for RSRs whom she had named, Glauber testified that she had asked Price to provide and names as well as the telephone numbers of RSRs, adding that she wanted to help Respondent's cause. All agree that they had gone to Price's room, where he had supplied the requested information. According to Glauber. it was here that Price had mentioned not knowing which RSRs had and which had not signed cards. All three of these witnesses agree that Glauber had departed. saying, in essence, that while she would like to begin placing calls immediately. she would first finish her route as she had sufficient time to be able to do so. Glauber, however, added that she was told not to worry if she was unable to finish her route, because the stops which she missed would be covered.37 Following the conversations with Price, both Glauber and Hungate did, in fact, place calls to other RSRs.38 For example. Glauber testified that following her conversation with Johnson and Price, she had serviced a few customers and had then returned to her home, where she had placed a call to Hughes, asking what was going on about the Union. in response to which Hughes described what had taken place at a meeting sponsored by the Union. and say- ing that she (Glauber) was against the Union, did not think that the RSRs were informed about the Union, did not think that the RSRs could get everything they wanted through unionization, and could not figure out why she had not been invited to the meeting described by Hughes. Her other conversations, testified Glauber, were similar to the one which she had conducted with Hughes: She would state that she was against the Union, that she felt that some of the RSRs were being misinformed, that there should be more information before the RSRs attempted to unionize, that the majority of RSRs had either revoked their cards or were very glad to hear that other RSRs were revoking cards, as they felt that the)y were the only ones that did not want the Union, and that they' were pretty scared and did not know what to do. Glauber acknowledged that she had asked how the RSRs felt about the Union whenever theN failed to volunteer this information, and that most of the RSRs had told her whether or not they had attended union-sponsored meetings and whether or not they had signed authorization cards. Significantly, while Jenni Pizzino conceded that she had spoken with Glauber on the telephone concerning what was to be done with regard to the cards that had been signed, Pizzino claimed that she had been the one to place the call to Glauber, since "I rode with Wendy my first two days and she was one of the girls that was easiest to talk to." Yet, it is quite clear that Pizzino had spoken with Glauber on more than one occasion by telephone and, moreover. that it had been, contrary to Pizzino's testimony, Glauber who had placed these telephone calls to Pizzino, Glauber's telephone bill discloses that on January 30, a 21-minute telephone call had been placed to area code I s Responrdent'lt s ne,,es described in connection . ith Wade's lerml- nat.,. Ihe timcls ser, ,ing of ciltu(,nlcr is assertedkl a matter of significain import to Respondent Nevertheless. at the end of the week, testified Jolhn- son. Glauber had telephoned to say that she had been unable to complete her calls ils she was behind on her schedule, but that Debbie Ledger. Johnson',s ehlef RSR, sas available to complete the servicing of the tail, and had aereed I, ser\ice the ones ahich Glauher had missed Johnson testified that she had not asked (;laher .hN she was behind schedule but had merelx assumed that the missed calls had been occasioned bs the nieet ing 'ith Price on Januars 27. Even this relallvely noncontroversial coi,ser- sation genlerited a coniflict in the testimons. for Glauber testilfied that latet that s eek. reahli`ig thai she .a,; hbhind schedule. she had called John-s,:i sasing that she had some stops , hich had to he made up and that It had been Johnson aiho h.id suggested ith It edger he assigned to co,,er sinte Of the mssed .all, ~ It Is indls.puled ihait inil.ar calls erc being p;aced hs other RSR. hth ihosc sh fhl at-red and ilth,. a h op..psed the l inm 391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 213-860-9725 and that on January 31 two such calls, one lasting 10 minutes and a second 3 minutes, had been placed to that same number. When she testified, Pizzino identified her telephone number as 213-860-9725. Hungate did not testify. However, several RSRs de- scribed their telephone conversations with her. Glad testi- fied that Hungate had asked whether Glad was going to go Union or not; Michaels testified to several conversations with Hungate in which the latter had inquired if Michaels was in favor of going union, had suggested that Michaels call her if she could be of any help when Michaels had said that she was not in favor of the Union, and had then sug- gested the revocation letter language when Michaels had asserted that she desired to retract her signature favoring the Union. Vickie Braase testified that during her phone conversation with Hungate, the latter had said that she had worked for another company where employees were repre- sented by the Union, that she had not liked the Union, that if the RSRs became unionized a number of restrictions would be placed on them and that she was calling to ask Braase to send a letter to the Union revoking her commit- ment. Crawford testified that Hungate had said that she was calling the RSRs because she was definitely against the Union, had asked how Crawford felt about it and, when Crawford had responded that she thought the Union was a good idea for benefits and pay but did not like the idea that it would lead to punching timeclocks and leaving vans at Respondent's facility, had inquired if Crawford would like to place calls to other RSRs. Nuro testified that Hun- gate had inquired if Nuro had heard about the union activ- ity, had asserted that she knew that Nuro had signed an authorization card which effectively committed Nuro to union representation, had been in a union before and had experienced a walkout which had led her to be very strong- ly against unions, and had replied that Nuro could send a letter revoking her signature when the latter had asked if Hungate knew of any way that she (Nuro) could revoke her signature. According to Diane Getchel, Hungate had said that she did not favor the Union, that she was happy with her job and did not want to go on strike, and that she wanted to let Getchel know that if the latter wished to revoke her card she could do so, as the signature was not a "final type thing." Kuriyama testified that Hungate had indicated that she was not in favor of the Union and had asked if Kuriyama had heard anything about the Union and if Kuriyama had signed a card for the Union. These calls to the other RSRs did not occur in a vacuum. for Price admitted that following each call both Glauber and Hungate had reported to him on the calls, although hc testified that on each occasion he had advised them that they did not have to call him to report what had taken place, and that such calls to him were purely voluntary Glauber acknowledged that Price had "always said, as I have always stated, that I didn't have to call him. It was all my own choice, but that it was helping L'eggs, as l.'eggs couldn't go out and talk to employees." However, the sub- stance of Price's conversations with Glauber gave rise to vet another conflict. Price testified that neither Hungate nor Glauber had related the substance of the comments made by the other RSRs to him during their telephone conversations, but rather had only told him whether the particular RSR was, in the opinion of Hungate or Glauber, for or against the Union. Thus, with respect to his tele- phone conversations with Glauber, Price testified "she didn't tell me what they said. She only told me what their feelings were. Again, it paralleled Arlene Hungate's." Glauber, however, testified: "About, just about after every time I talked to one of the girls that I got to I called Le- Monde and told him how I thought they felt and about the gist of the conversation that I talked to him." (Emphasis supplied.) Glauber testified that when, during one of these conver- sations, she had expressed concern as to whether she was the only one opposed to the Union, Price had said that there was "somebody else that felt the same way," naming Hungate. As a result, Glauber and Hungate met, reviewed the results of their telephone calls to the RSRs, and Glau- ber then advised Price that as a result of that review she believed that a majority of the RSRs did not favor the Union. Nor was Price the only official of Respondent to provide reinforcement to Glauber in her activities. On Thursday, January 29, Johnson met with Glauber, who inquired as to the reason for Kelly's and Manheimer's terminations. Glauber testified that Johnson had denied possessing any knowledge in this area, save that something had happened that was contrary to company policy, and that Jackie Wade had also been fired because, Glauber believed that Johnson said, she had been on probation for some time and was not doing very well. Johnson then said, testified Glauber, that because of Glauber's telephone calls, some of the RSRs had revoked their "white cards," which showed that Glauber's calls were doing some good: "I think she said something to the effect of what I had been doing had been very helpful to L'eggs and that I still realize that L'eggs is not allowed to say very much, and my con- versations with the girls is helping out very much." Al- though Johnson denied saying anything to Glauber about employees revoking authorization cards, she conceded that the conversation had occurred on January 29, that her pur- pose in meeting with Glauber had been to explain the ter- minations of Kelly and Manheimer, that she had told Glauber that Manheimer had been terminated as a result of a business decision which, in her personal opinion, had something to do with Manheimer's personal relationship with Kelly, and that when Glauber had expressed discon- solation by saying that she did not know if her calls had been doing any good, she had told Glauber -well, I'm sure they are doing some good." A further element in this scenario is the fact that Re- spondent ultimately paid the expenses which Glauber and Hungate had incurred in making these calls. Johnson, Price, and Glauber each denied that there had been any prior agreement or authorization for reimbursement. Rath- er, Glauber testified that during her meeting with Hungate. they had agreed to include the costs of these calls on their expense reports and each had then done so without identi- fying the purpose for the calls. Yet the amounts claimed were clearly disproportionate to the amounts which they had claimed previously as expenses for telephone calls. Hungate's route expense report for February 13 lists $75.73 as her expenses for telephone calls. However, her telephone 392 L'EGGS PRODUCTS INCORPORATED expenses on other expense reports from December 6. 1975 through February 22 only once exceeded $3 in amount, save for the report of February 13, and no evidence was introduced showing that any prior or subsequent expense report submitted by Hungate had ever listed telephone ex- penses even approaching the amount which she claimed on February 13. Similarly, Glauber's average expenses for telephone calls were between $3 and $5. but her expense account for February 17, on which she claimed reimburse- ment for most of the calls which she had made to RSRs. listed her telephone expenses as $27.36. Obviously, explanations were warranted. By the time of these events, expense accounts of RSRs were normally ap- proved by their area managers. Nevertheless, it was Bat- ty-not Johnson-who had approved Glauber's expense report of February 17 and it was Hardy-not Manning- who had approved Hungate's report for February 13. Batty was closely questioned on cross-examination regarding his approval of Glauber's expense report. In a none too con- vincing and quite evasive series of answers, he denied re- calling anything specific about the approval of this particu- lar expense account, asserting that a telephone bill for $20 "would not make me very much concerned" and asserting that the telephone bill would have had to have been as high as $29 to $30 before he might ask the RSR about it. How- ever, no evidence was produced to show that in the normal course of events, an RSR's telephone bill would reach the magnitude of even $20. Indeed, the record does not dis- close any reason for an RSR to make very many telephone calls, particularly as RSRs are supposed to service their accounts in the manner set forth in the route book. Signifi- cantly, Respondent produced no expense reports by any RSR which listed telephone expenses even approaching the magnitude of those listed on the February expense reports of Glauber and Hungate. In any event. Batty's explanation hardly suffices to ex- plain the magnitude of Hungate's telephone expense. which he testified had also been submitted to him. In view of the amount, he testified that he had directed Hungate to obtain approval from someone else and that he next saw the expense report when Hardy returned it to him with instructions to pay it. Batty acknowledged that this was the first expense report that Hardy had ever authorized during the time that he (Batty) had worked for Respondent. Har- dy testified that when Hungate had approached him with the expense report, he had first asked why Manning had not approved it, and when Hungate had replied that Man- ning was not available, had next inquired if she had spoken with Batty. According to Hardy., Hungate had replied that it had been Batty who had directed her to get it approved. which was why she was bringing it to Hardy. He then testi- fied that, dismissing Hungate, he had taken the report to his office where he had reviewed it, approved it, and then had transmitted it to Batty for payment. Conceding that the amount of the telephone expense had appeared un- usual, and that the number of calls was also very high, he asserted that he had not asked Hungate about this item. because he had assumed that a number of these calls were probably ones made to RSRs in connection with the activi- ty which was then in progress. However, he conceded that he lacked any independent knowledge as to the purpose of the calls and was assertedly unaware of Hungate's sympa- thies at that time. Since, he testified, he would have had to inquire of Hungate in order to find out about the calls, and did not want to do that, in view of Radcliffe's January 24 instruction not to interrogate RSRs, he had made the deci- sion, he claimed, that he would simply approve the expen- ses. He further testified that prior to telling Batty to pay Hungate's expense report, he had not consulted with any other official of Respondent. The expenses for these calls were not the only ones which Respondent incurred by virtue of the RSRs' activi- ties. As set forth above, during her meeting with Manning, Hughes had prepared a letter withdrawing her support from the Union and had given it to Manning for trans- mittal to the Union. However, Price had directed Manning to return it. saying that Hughes would have to transmit it herself. Manning carried out these instructions during a luncheon with Hughes on the following balance day. When she returned the letter, it had been enclosed in an envelope. The Union's address was supplied by Manning at Hughes' request. As Manning assertedly needed stamps, she then drove Hughes to the post office, where the latter posted the letter by registered mail. Manning testified that, to the best of her recollection there had been no discussion as to who was to pay for the 35 cents' postage for Hughes' letter. However. Hughes testified, with some vacillation, that be- fore purchasing the postage she had advised Manning that she intended to claim the cost on her expense report and that Manning had gestured noncommittally in response, thereby indicating no opposition in Hughes' proposal. In- deed, although she had never claimed postage on an ex- pense report in the past. Hughes did list 35 cents for "post- age" on her expense report and this amount was included among the expenses for which she was reimbursed. Hughes' letter of revocation was not the only such docu- ment to be brought to Respondent's attention. On Satur- day, JanuarN 31. Glauber prepared a letter stating in es- sence that the employees did not desire representation by the Union and obtained the signatures of Crawford, We- ber. and Pizzino on the letter, which she testified she then presented to Price at the Holiday Inn in the presence of Smith, Hlardy. and Schwaegler. According to Glauber, Price said that he had no use for the petition as there was nothing that he could do with it but that he thought that possibly it would be better if the RSRs who had signed it were to submit it themselves. Glauber testified that she then had made copies of the petition and had given one to each of the RSRs who had signed it. Price, the only other witness to this particular event. made no reference to Smith, Hardy, and Schwaegler being present at the time that (;lauber had submitted the petition to him. He did agree that when she had presented it to him he had told her that he could not take it, as "I mentioned to you earlier that I legally can't be involved" and that when Glauber had asked what she could do with it, he had told her that his only suggestion was to return it to "these people and let them do whatever thev want to do with it, but I can't really tell You what to do." Notwithstanding this rebuff, however. following the meeting of February 5. as will be discussed in greater detail infra. Price discovered a second petition. signed hb several RSRs. that had been placed in the pocket 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his coat during the course of the meeting. He testified that Glauber subsequently admitted having placed it there. 2. Analysis of the Glauber and Hungate telephone calls Throughout, Respondent has portrayed its conduct with respect to this facet of the case as being merely a reaction to conduct initiated by the RSRs and, accordingly, as fall- ing outside the ambit of Section 8(a)(1) of the Act. Pqyless Drug, supra, Jimmy-Richards Co., Inc., 210 NLRB 802 (1974), affd. 527 F.2d 803 (C.A.D.C., 1975). Indeed, Glau- ber testified that it had been she who had initially broached the subject of her opposition to the Union and that Price had repeatedly asked if she clearly understood that she was acting voluntarily. Assuming for the moment that Glauber is credible in this respect, there is still a ques- tion as to whether Respondent's conduct does not violate the Act. As is pointed out in United Biscuit Company of America, Union Biscuit Division, 101 NLRB 1552, 1565 66 (1952), enfd. 208 F.2d 52 (C.A. 8, 1953), cert. denied 347 U.S. 934: Men do not communicate by words alone; an atmo- sphere, a setting, and a relationship often convey meaning at least as effectively as language. The guar- antees of Section 7 could become a sterile abstraction if one were to hold that [Price] immunized himself from the statutory prohibition against interference by "asking" the employees if the statements were given of their "own free will," while at the same time using an inhibiting setting and a preface of coercive interroga- tion to secure them. Here, Respondent's conversations occurred in a setting where, as found above, Respondent concurrently had been engaging in a pattern of questioning and threatening em- ployees, supplementing this conduct with suggestions by, at least, Hetherington, that the RSRs withdraw their previ- ously avowed support for the Union. Moreover, as found above and as will be found below, Hungate's and Glauber's conversations with Price occurred in the context of unlawful discharges of Morgan and Wade for favoring unionization. Consequently, there is an ample basis for finding that an "inhibiting setting" was present. United Bis- cuit, supra. Cf. North American, supra. Moreover, still assuming that Glauber's testimony should be credited, there are factors indicating that Re- spondent was subtlely encouraging her conduct, using the information which she obtained to augment that which the area managers were contemporaneously garnering in their individual meetings with the RSRs. Thus, Price had ex- pressed pleasure at Hungate's desire to call RSRs. Not- withstanding his prefactory statements that Glauber was not compelled to call him after each conversation with an RSR, Price did listen to the information which she had obtained from the RSRs and did nothing whatsoever to deter her from continuing to make such reports. Both he and Johnson reassured her that the calls were helping Re- 74 In this regard I do not credit Johnson's account of the Januars 29 conversation Glauber quite obviously favored Respondent's position in this matter, but her testimony was given at a time when it could not have been spondent. 39 And when she later expressed discouragement at her perceived situation as the only opponent of the Union, Price encouraged her by revealing the name of Hungate as one who shared her viewpoint. Johnson pro- vided assistance to Glauber so that service calls which she had missed, due to her calls to RSRs, were made up. Final- ly, Respondent paid the expenses of these calls. Neither the substance nor the tenor in which its witnesses attempted to explain these payments was the least bit convincing. In this regard it seems most strange that if in fact Hardy was as concerned about violating Radcliffe's instructions as he claimed, in refraining from questioning Hungate about the amount of her telephone expense, that he would not have at least spoken with Price before authorizing payment of an inordinately high telephone expense which he admitted- ly suspected was generated by activity not related to Respondent's business. After all, Price was directed to re- main in Buena Park purportedly to answer these very types of questions by local management. In the final analysis, however, Glauber's efforts to disas- sociate her conduct from Respondent's sponsorship was simply unbelievable and at odds with other circumstances. Clearly, both Glauber and Hungate opposed unionization of the RSRs. Neither was the least reluctant to communi- cate that opposition to Respondent, which was made aware of their position from the very outset. Moreover, there was a distinct similarity in the questions which both Glauber and Hungate put to the RSRs and the questions which the area managers were concurrently directing to RSRs during the individual meetings that Radcliffe had instructed them to conduct. In addition, the effect of Price's testimony con- cerning Glauber's conduct is such as to render her thoroughly irrational, for notwithstanding his purported comments to her that he could not become involved in an antiunion campaign and his constant statements that she was not obliged to continue telephoning him to report the results of her conversations with each RSR, he depicts her as continually making such calls, seemingly without pur- pose.4 0 Manning did not corroborate Price's description of how he came to meet with Hungate. Nor did Schwaegler corroborate significant aspects of Price's description of their meeting with Hungate. Price's undenied comments, as related by Glauber, during their January 27 meeting were similar to the threats which area managers were delivering to the RSRs insofar as they portrayed the adverse effects of unionization without any factual basis to support such as- apparent to her that Respondent would dens possessing knowledge that authorization cards had been signed at the time that she had spoken with Johnson. Moreover, her comments regarding Johnson's reference to "white cards" were similar to those which she attributed to Price during their meet- ing earlier that same week. I find her credible in both conversations and accordingly, find that these statements were directed to her, both by Price and by Johnson. I further find that Johnson did tell her on January 29 that her actions were being helpful to Respondent which was "not allowed to say serv much." 4 Similarly, notwithstanding the return of a revocation petition which she submitted to him on January 31. accompanied b) an instruction that he was unable to take it because he could not become involved. he portrays her as delivering a second signed petition opposing the tInion to him following the February 5 meeting. Inasmuch as she was fully aware that there was nothing he could do with this petition, there would seemingly be no reason for her to transmit the second one to him--unless it were designed to communicate to Respondent the identities of the RSRs who had withdrawn their support from the Union No other inference seems plausible 394 L'EGGS PRODUCTS INCORPORATED 395 sertions. These comments could have no purpose other than to reinforce Glauber's resolve to oppose the Union and to subtlely serve to encourage her to communicate that opposition to the RSRs and to serve as a conduit for infor- mation regarding the RSRs' positions to Respondent. Finally, Glauber's efforts to explain the decision which she and Hungate reached regarding inclusion of their tele- phone expenses on their expense reports are inherently un- reasonable. Respondent was very careful with its finances. as will be shown in connection with Bolt's termination in- fra. Employees could be and were discharged for misap- propriation of company funds. Its expense items were cod- ed by subject. Yet, were Glauber to be believed, she and Hungate simply ignored Respondent's firm policy in this regard, unilaterally deciding to include expenses which would obviously be considerably higher than they had ever claimed before and which were to pay for matters not re- lated to their services as RSRs. Such a story is simply unbe- lievable. This conclusion is reinforced by Hughes' testi- mony that although she had advised Manning that she intended to include the expense of the postage of her revo- cation letter on her expense report, the latter had made no objection and Hughes then proceeded to list that ex- pense-the only time that she ever claimed reimbursement for postage--on her report and was in fact reimbursed. Although this is a small amount, Respondent's willingness to pay this expense clearly' shows the extent to which it was willing to go in an effort to reimburse and reward employ- ees who acted consistently with its opposition to the Union. I find that Respondent had authorized Glauber and Hungate to claim reimbursement for the expenses of their calls. Therefore, I find that the evidence does support the General Counsel's allegation that Respondent. by virtue of its conduct with respect to Glauber and Hungate, did soli- cit and encourage and render assistance to employees to engage in surveillance of union activities for Respondent D. The Termination of Jackie l 'ade 1. Contentions of the parties Hired by Respondent as an RSR on January 2. 1973. Jackie Wade's signature led the list of RSRs' signatures on the letter received by Respondent on January 21. Five days later, on January 26. she was terminated. The General Counsel urges that Wade's termination resulted from Re- spondent's desire to avoid unionization of its RSRs and was part of its campaign to undermine support for the Union among the RSRs. Respondent, however, contends that the timing of Wade's termination in relation to receipt of the letter was purely fortuitous. Rather, it argues that her work had always been poor, that she had teetered on the brink of termination when Smith became her area man- ager on July 1, 1975, that only her subsequent partial im- provement spared her from termination, that Smith's dis- covery of unclean displays on December 2. 1975, led her to decide to terminate Wade, but that implementation of this decision was deferred due to the buss Christmas season. and that the low score on Smith's annual evaluation. pre- pared in January, ultimately mandated her discharge. 2. Affirmative factors supporting the General Counsel's contention In many respects, Wade was a less than credible witness. However certain objective factors do point to the conclu- sion that her termination had been occasioned by her sig- nature on the Union's letter. Notwithstanding Respon- dent's deprecation of it as a factor. it remains true that Wade's termination was quite proximate to Respondent's receipt of the Union's letter and, as noted in connection with the discussion of Morgan's discharge, that proximity does establish a prima facie case by suggesting a causative relationship between the protected activity and the termi- nation. U 'nion Clamp Corporation, supra. Secondly, Respon- dent was admittedly opposed to unionization of the RSRs and waged a vigorous campaign in support of that opposi- tion. Indeed. that campaign was not merely vigorous, for bv its unlawful threats, interrogations, solicitations of revo- cation of support for the Union. and encouragement of RSRs' surveillance of other RSRs' union activities, all as detailed in sections IV. B and C. above. Respondent clear- ly demonstrated its willingness to resort to unfair labor practices as part of its campaign opposing the Union. In this regard. it is significant that this particular unlawful conduct was occurring contemporaneously with Wade's discharge and that these unlawful acts were the product of the same meetings with Winston-Salem officials during which the termination of Wade was discussed and author- ized. It is also clear that Respondent swas not reluctant to re- sort to termination as a weapon for combating unioniza- tion of the RSRs. That was illustrated 2 months earlier. when, as found above, Morgan had been discharged for simply suggesting such a course of action during a luncheon conversation with other RSRs. Therefore. een aside from the testimony provided by Wade. a number of matters objectively point to the conclu- sion that Wade's termination resulted from Respondent's hostilit, toward the Union and its supporters. 3. Respondent's defense a. Introduction In the final analysis, it is not Wade's credibility, but rather that of Respondent's witnesses. that is at issue here. In light of the General Counsel's prima facie case, the cru- cial inquiry must be directed to Respondent's motivation in making the determination to discharge Wade. To pro- vide its defense. Respondent produced Area Manager Smith, with supporting roles assigned to Johnson, Hardy. and Batty. To a degree. there is a certain facial plausibility to Respondent's defense. for Wade. like Morgan. was hard- lv an exemplary performer. Yet, as found above, the testi- mony of Respondent's witnesses were not credible in other areas and analvsis of Respondent's defense yields a similar conclusion in this area as well. As a general proposition. Respondent's defense to Wade's termination consists of two sequences of events leading to separate decisions to discharge her with a third sequence designed to serve as a buttressing mechanism. DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first sequence revolves around Smith's testimony that, upon discovering unclean displays, for which Wade had been responsible, on December 2, 1975, she had made a decision to terminate Wade, but had refrained from tak- ing immediate action due to the busy Christmas season, although she placed an advertisement seeking applicants to serve as a replacement when Wade was terminated ulti- mately. Christmas then passed, but with the advent of the new year no further mention was made of this purported decision. Instead. Smith paraded out an entirely separate defense: this time, reminiscent of Morgan's earlier dis- charge, centering upon Wade's annual appraisal. Of course, this shift in defense is sufficient to raise doubt as to the reliability of Respondent's overall defense to Wade's termination. Buttressing either or both sequences of events leading to the discharge decisions was testimony, depicting Wade as having been a most unsatisfactory worker during the en- tirety of her employment in southern California. Yet, the fact that Respondent retained Wade for so long a period of time and then terminated her immediately upon learning of her support for the Union only further serves to indicate the unlawful motivation for her discharge. See American Lumber Sales, Inc.. 229 NLRB 414, 421 (1977). Beyond these matters lies the additional fact that, as had been true with Morgan's discharge, each component of Re- spondent's defense, closely analyzed, displays sufficient contradictions and inconsistencies to refute the assertion that Wade was as poor a performer as Respondent seeks to depict. b. The purported decision of December 2, 1975 Smith testified that on this date she had discovered bou- tiques, recently serviced by Wade. which were not clean, but refrained from terminating Wade because of the busy Christmas sales season, deciding instead to defer such ac- tion until a replacement could be hired and trained and until the Christmas season was over. The outstanding facet of this defense, aside from the fact that it was never heard of again and the fact that Wade continued to work in January, is Smith's contention that she did not want to impede Respondent's operations by having to hire and train a replacement during the busy Christmas season. This seemingly reasonable explanation was flatly controverted by Johnson's testimony concerning the normal practice for hiring RSRs: "Well, it comes in spurts. We lose most RSRs during our heavy season and we rarely have to hire in the 6 months of the season when the season is light. So the majority of new hires is during the winter season." This testimony shows that it was not unusual for Respondent to train replacement RSRs during its heavy season. I o the contrary, it was normal operating procedure. Consequently, were Wade as bad as Smith por- trays, it would hardly seem likely that Respondent would have permitted her to continue providing shoddy service to customers simply to avoid having to carry out normal op- erating procedure. Of course, the pre-Christmas season did necessitate addi- tional work for the RSRs, due to the need to increase the frequency of stops and the volume of merchandise provid- ed to customers. In fact, this increased volume is of suffi- cient magnitude that Respondent distributes special ship- pers which RSRs must assemble and install in the stores which they service. The fact that it was Respondent's busy season merely compounded an already existing problem in the San Fernando Valley. Although Johnson claimed that RSRs in the San Fernando Valley "had the lightest routes in the branch," in November Smith had participated in realigning the San Fernando Valley routes to minimize the excessive time being spent by RSRs driving between their routes and their homes. In addition, Rehmann had com- plained that the reason why she had been missing stops was due to the excessive number of customers assigned to her, thereby precluding her from adequately completing her route. More significantly, in December 1975, Carol Washington, concededly one of Respondent's better RSRs, joined Wade and Rehmann in complaining of the time being spent servicing customers and meeting other obliga- tions imposed by Respondent, such as stickering each egg to conform to the change in the fair trade law and attend- ing the weekly balance. These were not frivolous com- plaints, for in January, five weekly stops were eliminated from the route of each of these three RSRs.4 ' In these cir- cumstances it is not surprising that Wade might have en- countered difficulties finding time to clean displays in ad- dition to servicing her stops as 1975 neared its end. Smith's testimony regarding the purported decision of December 2, 1975, was undermined by her own contradic- tory conduct 16 days later, when she prepared a monthly evaluation rating Wade's performance as "satisfactory." Respondent's efforts to explain the contradiction involve an argument that this is the lowest acceptable rating 42 which an RSR can receive and Smith's testimony that she had done this because she feared that Wade would quit if assigned an unsatisfactory rating. The argument begs the question even if "satisfactory" is the lowest acceptable rating, it is still a rating which is acceptable. What is unac- ceptable is Smith's explanation for this rating. The record is devoid of any basis for her asserted belief that Wade might quit if accorded an "unsatisfactory" rating. Indeed, Wade did not quit when assigned an "unsatisfactory" rat- ing by Smith earlier in the year. Moreover, while the evalu- ation form and attached boutique field inspection report disclose a number of areas in which Wade's performance was viewed by Smith as being not satisfactory, the same question is posed in this area as was posed with respect to Morgan: At what point does Respondent cease to tolerate inadequacies in performance? Notwithstanding these ad- verse matters, in the narrative portion of the form Smith listed four factors which "should be worked on in the next month" and concluded her narrative on the form with the statement "by improving her organization, Jackie is getting more done correctly and thoroughly." The former of these two comments clearly contemplates Wade's continued em- 4 If the volume of business had been sufficiently low for Respondent to implement this change in routing during the month of January. it surely ,ould haie permitted the replacement of Wade if,. in fact, Smith had made such a decision on Dtecember 2. 1975 4: A' the time. Smith could have rated Wade as "outstanding," "very good. "si tisfactory" or "unsatisfactor,." 396 L'EGGS PRODUCTS INCORPORATED ployment by Respondent. contrary to the asserted decision made 16 days earlier, and the latter comment hardly sup- ports Smith's contention that she was merely attempting to avoid the possibility that Wade would quit if assigned an "unsatisfactory" rating. Indeed, it indicates an affirmative pleasure with Wade's improving performance-a facet of Wade's discharge discussed infra. As noted above, Wade continued to be employed by Respondent after the January readjustment in the number of stops on the three San Fernando Valley routes. In addi- tion, during the week that the Union's letter had been re- ceived by Respondent, RSR Nancy Schmidt had pointed out to Smith that there were some eggs that had been taped on displays in stores which had been on Wade's route. Springing to Wade's defense. Smith replied that she did not think that Wade had been the one who had taped the eggs. Another factor tending to discredit Smith's contention that she had made a decision on December 2. 1975. to terminate Wade was the absence of any weekly activity re- port reciting such a decision. As noted in section IV. A. supra, it is Respondent's policy for each supervisor to file such reports with his or her superior each week. Even a cursory examination of the reports filed by Smith and pro- duced during the hearing discloses that it was her practice to advise Hardy of her activities in a thorough and detailed fashion. For example, between July and November 1975. she reported such matters as the shuttle truck being 3 hours late due to a breakdown, Nancy Schmidt "looking forward to a route and eventually being a trainee" in early August. Carol Washington having missed a half day for lab tests in early August, Linda Rehmann being absent for a day to have a tooth pulled in August. the possibility that Wade might have to postpone her vacation if she and her family were not well, Carol Washington having returned after I day's absence in November 1975. due to bronchitis. but having gotten behind "because she could not breathe due to the soot from the fires," and Wade having gotten mar- ried during that same month. Moreover, Smith was precise in reporting matters affect- ing employee status and potential personnel actions: Not- ing, inter alia, that Wade's request for 2 weeks' leave had been denied for "'reported' poor performance, a leave granted last year, and September activities . . . ": that Wade's displays in July 1975 had been mediocre, leading Smith to "run an ad during her vacation" absent improve- ment in Wade's deep cleaning; that Wade had been placed on probation in August 1975: that deadlines for deep cleaning had been extended in August 1975 for Wade, Rehmann. and Lisman: that a discussion regarding the need to meet deadlines had been conducted with Rehmann when the latter had dropped behind in her deep cleaning and had not submitted her new route book as requested: and that four applicants had been interviewed in Septem- ber 1975, should Wade or Rehmann have to be replaced. In light of Smith's detailed and thorough weekly reports, it cannot be doubted that had she discovered shockingly dirty displays on December 2. 1975. she would have report- ed that fact as well as any decision to terminate Wade which she had reached. In fact that did not happen. There is no written, or even oral, report by Smith of such a dis- covery and decision, so far as the record in this case dis- closes. To the contrary, in a report dated December 20, 1975, Smith notes only "rode with Jackie Wade who seems to be slipping again. She had a long discussion with me about the Valley problem and I will discuss this with you on Monday." Similarly, in her first management activity report for 1976 Smith states only "I also spoke with Jackie Wade regarding the calls we took off her route and she said she would work on the Woodland Hills-Canoga Park area standards--at least five changes of product mixes per week." Consequently, while in these reports Smith men- tions stops being removed from Wade's route and a discus- sion with her concerning problems in the San Fernando Valley, at no point does she make reference to a decision to terminate Wade because of the latter's failure to properly clean displays. On December 14. 1975. an advertisement appeared in the Valley News soliciting applicants for the position of RSR in the Central Valley Area. Smith testified that this advertisement had resulted from her efforts to secure quali- fied applicants from whom a replacement for Wade could be selected. Yet, as is true of this defense generally, no more was ever heard of the advertisement. even though Johnson testified that "normally we get a large response from our advertising .... " Furthermore, notwithstanding Smith's assertion that the advertisement had been prompted by her earlier decision to terminate Wade, Hardy supplied another explanation during his meeting with the three San Fernando Valley RSRs later that month. Asked during this meeting about the purpose for the advertisement, Hardy told the RSRs that it had been placed merely to replenish Respondent's applicant file. At the hearing, in addition to contending that he had wanted to avoid embarrassing Wade by an- nouncing her termination in front of the other two RSRs. Hardy claimed that he had said this to the RSRs to avoid alerting Wade that she was to be terminated. Yet this hard- ly makes sense. If Wade's route were referred to as the Central Valley route. 43 then Hardy's explanation surely would have been a futile exercise for, as Respondent itself points out in referring to this advertisement in its argument on another point, "she could not fail to read 'the handwrit- ing on the wall.' " This being true, if it were so obvious from the advertisement that Wade was to be dismissed, then it hardly seems to have been necessary for Smith to have altered her monthly evaluation, so that it read opti- mistically, 4 days after the ad appeared nor for Hardy to have misled Wade, Washington, and Rehmann during this meeting. Accordingly, the placement of the advertisement seems more consistent with Hardy's explanation to the RSRs than with Respondent's defense that it had made a decision to terminate Wade but was attempting to conceal that decision from her so that she would not quit. These factors-the absence of any reference to the pur- ported discharge decision after the turn of the year, even though adjustments were made to the San Fernando Valley I' There , ,menc au¢en . : i, a, to hether Wade's route could be haracter- ized flirls a, the "( ciltr,.ll \. alc" rolle. An cxalniollllln Kor .t mlp disdlloses th.lt the ltles I hlcil ',itde served extrenld alcross the northermn lier if the San -elIllMlld.o Vallc\. i fact, her .,Ulonicr, extenmd nourthard iouit of the San I ern.ando \ allcs and liito the Nc hall-Sa.ugu, area. 397 DECISIONS OF NATIONAl LABOR RELATIONS BOARD routes, the fact that Respondent normally hires new RSRs during its busy season, the fact that the San Fernando Val- ley routes were in need of realignment to afford time to the RSRs to complete all facets of their work, the mid-month evaluation of Wade as "Satisfactory," the comments on the evaluation form displaying Smith's contemplation of con- tinued employment by Wade and indicating satisfaction with Wade's continued improvement, the absence of any weekly reports by Smith reciting either a discovery of as- sertedly unclean displays serviced by Wade or a purported decision to discharge Wade based upon that asserted dis- covery, the existence of weekly reports which refer to Wade but which criticize her only mildly and which, like the comments on the evaluation form, appear to contem- plate Wade's continued employment, and Hardy's expla- nation of the advertisement to the RSRs, advanced before Wade had signed the Union's letter-all serve to refute Respondent's defense that a decision had been made on December 2, 1975 to terminate Wade. c. The defense based upon the annual evaluation of Wade Smith testified that in January, when she had begun con- sidering Wade's annual evaluation, she had realized that it would probably be quite low-between 25 and 30 points. According to Smith, before finalizing her computations, she had gone to the Buena Park office on January 16 and, after mentioning her tentative evaluation to Johnson, had discussed the matter with Hardy, telling him that in her view Wade would have to be terminated. After reviewing the matter, Hardy and Smith had decided that if the com- pleted evaluation, in fact, resulted in a score as low as Smith predicted, then Wade should be terminated. The two also agreed that rather than terminate Wade on the next balance day, January 21, when Smith would be fully occu- pied with the task of meeting with all San Fernando Valley RSRs and reviewing their paperwork. the termination should be implemented on the following day. Smith claimed that she had further advised Hardy that as there was no replacement for Wade, Smith's relief RSR would have to be assigned to cover Wade's route, with the result that "we were going to put a strain on our relief help situa- tion." On Monday, January 19, Smith testified that she had completed the evaluation, assigning Wade a score of 25, after which she first had telephoned Johnson to "verify that 45 points is the minimum for an increase" and then had spoken with Hardy, relating the fact that Wade had received a score of 25 as a result of her final tabulation. Then, as described in section IV, B, above, the Union's letter was received, leading to the purported decision by Hardy, later affirmed by the Winston-Salem officials, to defer Wade's termination. According to Respondent's wit- nesses, while in Buena Park, the Winston-Salem officials had discussed Wade's status and, anticipating that an un- fair labor practice charge would result from her termina- tion, had decided to instruct Smith to perform a final in- spection of stores recently serviced by Wade and to discharge Wade if that inspection failed to disclose any improvement. Smith had done so on Monday, January 26 and, she testified, upon ascertaining that there had been no improvement in the condition of the boutiques serviced by Wade, had notified Wade of her discharge that same af- ternoon. If there is one thing that stands out about this defense, it is the feeling of deja vu upon hearing it. Indeed, the com- ponents of the sequence of events prior to January 21. as related by Respondent's witnesses, are identical to those advanced by Respondent in constructing its defense to Morgan's termination. Thus, as had been true of Morgan, the factor advanced as precipitating Wade's discharge is an annual evaluation. As had been true with Morgan, the score received on that evaluation was the lowest ever as- signed by the area manager-in this case Smith-who had prepared it. The area manager, as had been the case with Morgan, discussed the evaluation with Hardy, who had agreed with the area manager's conclusion, that termina- tion was warranted. While, unlike Morgan, Wade was to be terminated on the day after a balance day, like Morgan, her termination was to be effected at a time when there was no available replacement for her, thereby necessitating a juggling of personnel to accommodate her absence. The latter point is not without significance. Smith testi- fied that the mid-December 1975 advertisement had been placed in an effort to locate a replacement for Wade. John- son testified that such advertisements normally generated "a huge response." Yet, I month later, no replacement was available when Respondent made its sudden decision to terminate Wade. No contention was advanced that the ad- vertisement had not yielded the usual results as described by Johnson. In fact, the effect of the advertisement on the sequence of events leading to Respondent's second dis- charge decision was apparently not even considered by Re- spondent. This area of Wade's discharge has somewhat greater significance, for throughout this case Respondent has disputed the appropriateness of a districtwide bargain- ing unit, arguing as one factor to support its contention that the district manager-Hardy-does not control the area managers' personnel decisions. Yet, somewhat incon- sistently, here was Smith assertedly conferring with Hardy about one such very decision. In an apparent effort to ex- plain the purpose for this meeting, Smith testified that she had been "just informing him that we might come up against some relief problems in the weeks to come." But, Hardy had obviously been aware of the advertisement: he had been the one to explain its purpose during the meeting with the San Fernando Valley RSRs. Nonetheless, there is not the slightest evidence that he so much as referred to that advertisement during this purported conversation with Smith-a strange omission in view of the concern ex- pressed about the effect of Wade's discharge on the ability of Respondent's RSRs to service all customers. Put another way, were Smith and Hardy testifying about this meeting because Smith had actually gone to Hardy to express concern over the effect which the discharge would have on servicing customers or, instead, was such a conver- sation constructed as a fortification for this second deci- sion to discharge Wade and concomitantly to cloak the true reason for Wade's termination? The latter conclusion is not beyond the realm of possibility, as shown by yet another conversation. When Smith purportedly met with Hardy, she had assertedly made a tentative estimate that Wade would receive a score of between 20 and 30 points 398 L'EGGS PRODUCTS INCORPORATED on her annual evaluation. Both she and Hardy placed this conversation as occurring at the Buena Park facility. Yet, both Smith and Johnson describe a telephone conversation 3 days later in which Smith asked Johnson to check the personnel manual to ascertain if 45 points was the mini- mum necessary for an RSR to receive an increase. Now, if events had evolved as Respondent contends, that surely would have been known by Smith-a most precise and thorough individual-on the previous Friday, had she ac- tually gone to the Buena Park facility and had she actually discussed Wade's prospectively low score with Hardy. Such a conversation with Johnson simply makes no sense-unless it was designed to shore up the second de- fense by making it possible for Respondent to advance an- other witness, Johnson, to confirm its defense that the deci- sion to terminate Wade had preceded receipt of the letter from the Union on January 21. Hardy did proffer notes to support his testimony that he had met with Smith on January 16. He claimed to have made notes during their conversation. Yet Hardy, it must be remembered, is the same individual who produced a written document, in connection with Morgan's discharge, that had been dated with the year following the one in which that RSR was terminated. A similar event occurred with regard to Wade, only this time Batty was the author of the document. When Smith had been unable to be present at the balance day on December 22, 1975, she had been replaced by Batty, who had assertedly prepared a triplicate Rediform message that same afternoon, telling Smith of his complaints regarding Wade's preparation of form WH-65 and of Wade's procedures for balancing. The memo con- cluded with the sentence: "Is she working to destroy the whole system, if so, she's done a fine job!!!!" The problem posed by this message is that while the original white copy bears the date "12/22/75," neither carbon copy bears a date. Consequently, it is apparent that the date was added following separation of the copies. Furthermore, examina- tion of the original (Resp. Exh. 26) discloses that the "5" in the "75" portion of the date was inserted after a change was made in the original numeral, written in lieu of the "5." That original numeral appears to have been a "6" and Batty conceded that he "may have put '76' and changed it to '75.' I don't know." Yet, as pointed out with regard to the document that Hardy authored, this is a peculiar mis- take, since misdating of a year normally arises as a result of force of habit from having written a particular yearly fig- ure over a 12-month period. Moreover, it is equally appar- ent, both from the absence of dates on the copies and from the difference in the instrument used to write the "6" and the remaining numerals of the date, that the original was dated at some point later in time-which raises a further question as to the reason for the belated insertion of that date. There is another set of documents which it might be appropriate to consider at this point. These are the ones comprising the performance appraisal which were prepared by Smith in January and which were similar to those pre- pared by Hetherington in November 1975 concerning Morgan. Examination of the form discloses that the assign- ment of points in each category is, for the most part, a quite subjective process. For example, item number 3, In- ventory Control, could have been accorded a range of points from minus 5 for "unsatisfactory" to 20 for "out- standing." In fact, Smith accorded 10 points to this factor, noting below "Jackie has not had a payroll deduction this year yet the majority of balances do reflect a small over. short condition: samples averaged 2 per week; returns are very low." Yet Smith advanced no explanation for the se- lection of 10 as the number of points assigned to Wade in this category. The subjective nature of the point assignment system for the various categories on these forms is even more graphi- cally illustrated in the case of the sixth factor, "Personal (grooming and appearance, attitude, job interest, enthusi- asm)." In this category an RSR can receive as many as 15 points and can have as many as 5 points deducted for un- satisfactory performance. In fact, Smith first assigned Wade 10 points for the category and then crossed that out, substituting a figure of 5 points. Yet her narrative rating speaks most glowingly of Wade: "Mrs Wade is always neat in appearance and her job interest is satisfactory." At no point did Smith explain her decision to change the nu- merical rating for this particular category, and her explana- tion of why she had selected 5 as the number of points to assign to Wade merely confirmed the subjective nature of the process: "I didn't think anything about Jackie's job interest was anything more than just barely acceptable. It was barely acceptable, but it was certainly not superior." Of course, this hardly explainss in reality, how Smith had gone about making the selection of points which she as- signed in this particular category. Accompanying the forms which comprised the perfor- mance appraisal is an Employee Status Notice. In the bot- tom left portion of the form, Smith has signed her name and listed the date as either "1/14/76" or "1/19/76." The second numeral in the day is not altogether clear. What is important, however, is that the effect of signing this notice was to accord Wade a salary increase, for that was the purpose of this particular document. Consequently, while the date by Smith's signature does confirm her assertion that the annual appraisal for Wade was prepared prior to the time that Respondent received the Union's letter. it indicates that Wade's performance had been sufficiently acceptable for Smith to have recommended her for a salary increase. That, of course, was inconsistent with Respon- dent's entire second defense, and by manner of explana- tion, Smith claimed that she had signed the Status Notice prior to actually preparing the performance appraisal. Yet. that is not an altogether satisfactory explanation either, for in view of her purported meeting with Hardy on Janu- ary 16, Smith should have been well aware that Wade's performance would not merit an increase at least she so testified. Consequently, her explanation for signing the Employee Status Notice is not consistent with her other testimony regarding the events which transpired at this time. Furthermore, she testified that upon completing the performance appraisal. she had been compelled to obtain another separate Employee Status Notice and complete it to show that Wade was to be terminated. This document was never produced at the hearing. Finally, although Smith contended that the preparation of Wade's annual evaluation had been delayed by the need 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for her to accumulate and compile documentation per- taining to Wade for the past year, no such documentation was produced to support this assertion by Smith, in con- trast to Hetherington's documentary support for Morgan's evaluation. By failing to produce such documentation it is inferrable that, contrary to Smith's testimony, there was no such documentation for Smith to accumulate in order to prepare Wade's annual appraisal. See (Clorflo Decorator Products, Inc., 228 NLRB 408, 41(), 417 (1977). There are two final sets of documents which must be considered in any analysis of Wade's termination. The first is the Boutique Field Inspection Report, appended to Smith's monthly inspection report for December 18, 1975. Though not totalled, this form discloses that a number of points were deducted from Wade's boutiques inspected on that date. Indeed, Wade's scores for the five stores as I have computed-disclose that her ratings were 63, 76. 52, 74, and 77. The second set of documents is the field inspec- tion reports prepared by Smith on January 26, the day that Wade was terminated and 5 days after Respondent had received the Union's letter. Smith lists seven stores as being inspected on that date, and the scores which Wade re- ceived were 66, 76, 68, 68, 53, 60, and 66. Comparison of these sets of figures discloses that there is no material dif- ference between the boutiques inspected in )ecember 1975 and those inspected I month later, on the date of Wade's termination. The average, overall score for Wade for the displays inspected on January 26 amounts to 65.3. The av- erage for those inspected in December 1975 was 68.4. While the displays inspected in January average 3 points lower than those inspected in December, the fact remains that in December Wade did receive a satisfactory rating on her performance, notwithstanding a relatively low score on the Boutique Field Inspection Report. Slightly more than I month later she was flatly terminated, when her average score was but 3 points lower, and was characterized as the poorest performing RSR whom Smith had ever supervised. Moreover, it must be remembered that the JanuarN field inspection report was prepared on the same day that Re- spondent commenced its multifaceted campaign of unfair labor practices to undermine the support for the Union among the RSRs. These factors, considered in conjunction with the other conflicting evidence proffered by Respondent regarding the purported decision of December 2, 1975, and the con- current campaign of unfair labor practices which Respon- dent was waging in response to the Union's letter, warrant the conclusion that this defense also is not supported by credible evidence, but rather has been advanced in an ef- fort to cloak Respondent's unlawful motive for terminating Wade. d. Ihe evidence regarding Waded's ha ckground emnpolu ment While there are a number of conflicts in Respondent's evidence in this area, designed to buttress its defenses to the decisions purportedly leading to Wade's termination. as I have found above that neither defense has merit, it is necessary only to consider a few of these contradictions. As quoted in section IV. A. above. Area Manager Johnson described Wade's performance as being thoroughly inade- quate during the period October 1974 through June 30, 1975, when Johnson had been Wade's area manager. Yet on cross-examination, the General Counsel confronted Johnson with her own monthly evaluation reports of Wade for the months of January, March, and April 1975. On each of these reports Johnson had rated Wade not simply as being "Satisfactory," but rather as being one grade high- er in performance: "Very Good." Johnson attempted to explain this quite obvious contradiction by testifying that following an incident where Wade had been assaulted in February 1975, she (Johnson) had been instructed by her superiors to avoid criticizing Wade so that the latter would have an opportunity to recover from this experience. Yet Johnson conceded that Wade had returned to work within a week of the incident, and, so far as the record discloses, Wade suffered no permanent trauma nor depressed psy- chological state as a result of what had occurred. Conse- quently, there no evidence that would support the need for Johnson to have continued treating Wade with kid gloves into the month of April. Moreover, examination of the forms for the months of March and April discloses that Johnson did much more than avoid criticism of Wade; she affirmatively praised Wade's performance. For example, on April 23, 1975, Johnson wrote: "Jackies [sic] overall route condition has improved and she seems to work hard at keeping Boutiques clean. She needs to repair small flaws and she will do this from now on I am sure. She is really) a superior RSR." (Emphasis supplied.) Furthermore, even assuming that Johnson had been implementing such orders in March and April 1975, this would not explain the evaluation of Janu- ary 23, 1975, wherein Johnson rated Wade as "Very Good" and, on the form, stated, "Jackie is a good rsr and with a little more organization and time could be one of the best. She has good customer relations and is trying to get her route back in shape after being absent and Xmas." Such a comment hardly comports with Johnson's description that during the 9 months of her service as Wade's area manag- er, the latter's . . . displays or boutiques on her route were filthy, standard changes were not done when they were need- ed or required or necessary. Her balancing paperwork was sloppy, incomplete, inaccurate, items left off. This type of thing. On the overall she was not working up to satisfactory performance. Nor are the above-average rating and laudatory comments of January 1975 explainable in terms of the assault on Wade in the following month. Finally, Johnson conceded that she had been the one to prepare the annual evaluation for Wade for the I-year pe- riod which preceded the year covered by Smith's evalua- tion. Johnson acknowledged that as a result of her annual evaluation Wade had received a salary increase, thereby indicating that Wade's performance had been rated at least as being satisfactory. On redirect-examination, Johnson at- tempted to explain these matters by saying that she had not been formally trained as to how to complete Respondent's rating forms and that "I don't think I once gave an 'Unsat- isfactory' because I didn't have the-what is it-guts." Frankly, having listened for over 2 months to the descrip- 400 L'EGGS PRODUCTS INCORPORATED tions of Respondent's tightly structured operation and to the detailed reporting requirements and strict adherence to standards expected of its area managers, I find this colorful explanation to be contrary to the type of performance that Respondent would have permitted an area manager. Johnson's evaluation forms, however, do raise an inter- esting point. In its brief, Respondent points out that Wade had produced forms only for the months of January, March, and April 1975, thereby inferring that the failure to produce additional forms could give rise to an adverse in- ference with regard to the contents of these other forms. Yet, Respondent maintains complete records and, if Wade's other forms had disclosed "Unsatisfactory" rat- ings, these surely would have been produced by Respon- dent. What the record does show is that Wade's evaluation for the first month of 1975 had been "Very Good" and that her evaluation for the last month of 1975 had been "Satis- factory." During the intervening months she had, so far as the record discloses, received but one "Unsatisfactorv" monthly evaluation. As was true of Morgan, this hardly portrays an RSR whose performance was so bad that she would be unable to even approach a minimally acceptable annual score on her yearly evaluation covering 1975. To the contrary, what appears to have occurred with respect to Wade is the same situation as was encountered with regard to Morgan: In practice, Respondent's level of toleration of less than exemplary conduct by RSRs was much greater than it attempted to portray during the course of the hear- ing, with the result that at the hearing Respondent ad- vanced conduct which, in practice, it had found accept- able, as being intolerable. This latter conclusion is confirmed by the testimony' of Nancy Schmidt, whom, notwithstanding her sympathies favoring the Union, I found to be a sincere and forthright witness. As a relief driver, Schmidt had covered the routes of several of the other RSRs, including that of Wade. She acknowledged that Wade's route had not been very clean in January 1976, when she had serviced it approximately five times, explaining that there had been dirt and dust on the displays in the stores which Wade serviced. Yet Schmidt further testified that the level of cleanliness on other routes had been even worse. In this regard she sin- gled out the route of Majo Michaels, which she had ser- viced for 4 days during the summer of 1975 and. addition- ally, she testified that she had periodically serviced Rehmann's route, discovering that the stores which Reh- mann serviced seemed to have gotten worse over this pe- riod in terms of cleanliness. In addition, Schmidt testified that the other routes were in similar condition to that of Wade, singling out the routes of Karen Dill and Jonnie Lisman as illustrations. Consequently, her testimony con- firms the hypothesis with which this section concerning the discharge of Jackie Wade opened-while not exemplary, Wade's performance had been acceptable until Respon- dent learned that she had signed a letter of support for the Union, at which point it raised its standard of expectations so that Wade could be portrayed as an unsatisfactory em- ployee. Therefore, I find that upon learning that Jackie Wade had been the first RSR to sign the Union's letter. Respon- dent took advantage of her marginal performance and ter- minated her in reprisal for her support of the Union, there- by violating Section 8(a)(3) of the Act." E. The Discharge of Beverly Bolt on January 27 In contending that Region Secretary Beverly Bolt was terminated for unlawful reasons, the General Counsel ad- vances the theory that during her conversation with Man- ning, concerning Morgan's comment at the RSR seminar luncheon, Bolt had said that she did not blame the RSRs for wanting to be unionized and, recalling this comment 2 months later. Respondent decided to terminate Bolt be- cause her position enabled her to contact all RSRs in the Southern California District should her sympathies lead her to become active in supporting their unionization cam- paign. Conversely, Respondent argues that by mid-Janu- ary, the decision to terminate Bolt had already been made, that implementation of that decision had been deferred un- til Schwaegler's return from Puerto Rico and that, when Schwaegler had discovered that Bolt had borrowed money from petty cash for personal reasons, he immediately had terminated her. Although. as found above, Respondent has engaged in numerous unfair labor practices during this pe- nod, I find that the evidence will not support the General Counsel's contention that Bolt was terminated for unlawful reasons. As found in section IV, A, above, Bolt had a conversa- tion with Manning in November 1975, regarding the events which had transpired at the seminar luncheon. Bolt testi- fied that during the conversation she had told Manning "I couldn't blame the girls for wanting to join a union." This was denied by Manning. Although I have not found Man- ning to be a credible witness in other areas, neither, as mentioned in section IV, A, above, was Bolt a credible witness. Thus, although she testified to a series of conversa- tions involving Schwaegler during the week of Morgan's termination, Respondent's evidence showed objectively that Schwaegler had left Southern California on Sunday. November 16, 1975. and had not returned to the area until the evening of Thursday, November 20, 1975. On rebuttal, Bolt then attempted, in an unconvincing fashion, to cure the situation by testifying that the conversations which she allegedly overheard might have taken place by telephone, with her having heard only the comments directed to Schwaegler by Hardy. but not the comments made by Schwaegler. This of course directly contradicted her testi- mony when appearing as a witness during the General Counsel's case in chief. Nor was this the only area in which Bolt's testimony was contradicted. One of Respondent's asserted reasons for ter- minating her was based upon its contention that she had been divulging confidential information, a charge which she denied. In connection with this defense, Bolt was asked if it were not true that she had told Potter about the "' t pon heing discharged . Wade delased returning her van and merchan- dlke c1 Sllli illl ad eaI.Iged n a telephone cionersation ith Smith who was itaxNare h;at other RSR' eare ealesdropping on the conversation Consid- er in, the unlals ful n atuire of VWatde's termination. this conduct does not a.ret iade'5 right tor rein tiltenient See, e g 1 4tplundh Tree Ex per (ompra a, 220 NI R1B i2, fil 2 4197 ) t %.kin, 401 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's letter, received by Respondent on January 21. She responded, quite emphatically: "I repeat that I did not talk with Mr. Potter about the letter. I never talked with Mr. Potter about anything other than joking or carrying on in a joking sort of way." Yet Potter, no friend of Respondent, testified with respect to the letter, "all I know when it came I learned it, about the letter. Beverly confirmed it, that it was a letter from the union." Finally, with regard to Bolt's credibility, it should be noted that as Schwaegler had arrived in Buena Park to become Western Region Sales Manager on September I, 1975, she had only been his secretary for approximately 4 1/2 months prior to her discharge. Nothing in even her own description of their working relationship could be re- lied upon as a basis for finding that she and Schwaegler had worked especially closely together or had enjoyed any type of special working relationship. Yet, at the time of her termination, Bolt described Schwaegler as being close to tears and as saying "this is the hardest thing I have ever had to do in my life. The company has made a decision and you are no longer an employee." 45 Throughout, I had the impression that Bolt had been embellishing her testimony in an effort to establish that Respondent's unfair labor practices had been so broadly encompassing that they extended to her own discharge. Each of the above-enumerated segments of her testimony is consistent with such an approach on her part: Portray- ing Respondent as being willing to resort to termination as a device for opposing the Union (by the purported Schwae- gler conversations concerning Morgan's termination), re- butting both the confidential status attributed to her and her disclosures of confidential information (as shown by her denials of the contention that she had advised Potter of the Union's letter) and, attributing to Schwaegler reluc- tance and regret at having to terminate her for circum- stances beyone his control (as shown by her description of Schwaegler during the termination conversation and by her testimony as to the statements which he assertedly made at that time). Each of these statements and descriptions was rebutted by other, more objective, evidence presented dur- ing this case. Thus her testimony that she made a statement to Manning in November 1975, expressing sympathy for the RSRs' favoring of unionization, must be viewed quite critically, since it appears to conform to a pattern of testi- mony designed to fortify her contention that her termina- tion had been a facet of Respondent's unlawful antiunion campaign. Even assuming, however, that Bolt had made such a comment, 2 months prior to her discharge, it is evident that only by an extremely tortured inference could it be said to have influenced her termination. It should be recalled that it was Bolt who had pursuaded Schwaegler to open the Union's letter. It was she to whom Schwaegler had as- signed the task of typing the list of RSRs, in preparation for his meeting with the Winston-Salem officials on Janu- ary 23.46 Thus, the objective circumstances immediately 4~ Both matters, however, were omitted from Bolt's pretrial affidavit and from the investigating Board agent's notes of Bolt's other statements., not contained in an affidavit. that she had made to him during the course of the investigation preceding Bolt's termination hardly lend support to the General Counsel's portrayal of Respondent as being suspi- cious of and concerned about Bolt's sentiments. Third, even had Bolt's single expression of her personal view, that she did not blame the RSRs for seeking repre- sentation, been brought to Respondent's attention, it hard- ly seems reasonable that she would have been viewed as a threat to Respondent's unorganized status. She was not an RSR. There was no indication to Respondent that she had taken any action on the basis of her purported expression of opinion. Indeed, she had not. To the contrary, her sug- gestion that the letter be opened by Schwaegler would ap- pear to have been designed to aid Respondent, thereby aligning her sentiments with those of Respondent. In addition, it should be noted that on the first workday following the meetings with the Winston-Salem officials, Respondent's agents immediately implemented the cam- paign in opposition to the Union. It was on January 26 that the area managers commenced their meetings with the route sales representatives. It was also on that day that Smith prepared the route inspection reports and terminat- ed Jackie Wade. Indeed, it was on the prior evening that the first steps were taken toward encouraging the telephone campaign which Hungate then conducted. Yet, Bolt was not terminated until January 27. While 24 hours is not a long hiatus, the delay, short though it was, is hardly consis- tent with Respondent's immediate implementation of its antiunion campaign. No reason could have been served by retaining a suspected union supporter in the region office. To the contrary, any delay would only have afforded a union supporter more time to act upon those sympathies while on Respondent's payroll. In these circumstances, the preponderance of the credi- ble evidence fails to support the General Counsel's conten- tion that Bolt was terminated because Respondent viewed her as a potential union supporter. In making this finding, I have taken into consideration Respondent's other unlaw- ful conduct. However, as the Board pointed out in G. W. Davis Corporation, 202 NLRB 204, 205 (1973): Even assuming that Respondent's reasons for termi- nating Carter are suspect, it is not the Respondent's burden to prove that it discharged her for just cause. The burden is on the General Counsel to establish a discriminatory motive for the termination by a pre- ponderance of the evidence, if a violation is to be found. In fact, there is a significant amount of evidence to sup- port Respondent's defense concerning its lawful reason for the termination of Bolt, in contrast to the defenses pre- sented to the terminations of Morgan and Wade. Accord- 4 Bolt further testified that, in contemplation of the arrival of the Win- ston-Salem officials, Schwaegler had directed her to prepare other memo- randa: A complete history of the events surrounding Morgan's termination, a complete history of the employment record of Jackie Wade. a list of RSRs with the grid miles for their routes and the number of stops that each made per week, and a list of RSRs which included asterisk marks by the names of those who had signed the letter received the day before. Respondent dis- putes this portion of her testimony and, absent more reliable evidence than Bolt's uncorroborated testimony, I do not credit her in this regard. The point, however, is that were Bolt correct. assigning her to prepare such obviously sensitive memoranda hardly displays concern regarding her possi- ble sympathies favoring organization of the RSRs. 402 L'EGGS PRODUCTS INCORPORATED ing to Schwaegler, Bolt's immediate superior since Septem- ber 1, 1975, he had made a decision earlier in January to terminate Bolt because of her disclosures of confidential information and due to reports which he had received to the effect that she had criticized him as Western Region Sales Manager. This decision, he testified, had not been implemented immediately, because he had been scheduled to journey to Puerto Rico for Respondent's sales meeting, described in section IV, B, above, and needed someone to coordinate district operations in his absence.47 This trip was aborted, but the activities surrounding formulation of Respondent's response to the Union's campaign, Schwae- gler testified, diverted him from attending to Bolt's termina- tion. However, he testified that late on the afternoon of Monday, January 26, he had checked the Region's petty cash fund, discovering that it contained Bolt's IOU for $70, "borrowed to get son's glasses." Resorting to petty cash for personal reasons, testified Schwaegler, was contrary to Re- spondent's policy, as he construed it, of restricting use of petty cash funds to business purposes. Consequently, Schwaegler terminated Bolt on the following day. The singularly outstanding fact regarding this defense is that Bolt, in fact, had borrowed the money for the personal purpose recited in the IOU. Moreover, while Respondent did not produce a written rule specifically prohibiting bor- rowing money from petty cash for personal purposes, such a proscription would appear to be the type of work rule that commonsense dictates should be implicitly understood in an employment relationship.4 While the General Coun- sel did produce testimony showing that Region Sales Dis- tribution Manager Weightman had borrowed money from petty cash for occasional lunches, and that Batty had used his own petty cash fund to make small loans to RSRs for such matters as lunches, there was no evidence that such loans had been brought to the attention of either region sales manager-Ferris and then Schwaegler-for whom Bolt had worked. Indeed, the demeanor of both Schwae- gler and Hardy, when disavowing knowledge of Batty's small loans, made it apparent that this was a practice soon to culminate abruptly.4 Bolt's activities in Schwaegler's absence. as well as her normal duties, formed the bases for Respondent's contention that she was not an emplosee within the meaning of Section 2(2) of the Act or alhernativels. was not entitled to the protection of Section 7 of the Act In view of my finding that her termination had not been motivated b) unlawful considerations, I find it unnecessary to discuss further and resolve these contentions. 48 Other examples of such commonsense implied. but unwritten, rules would be prohibitions against such matters as theft, fighting, and sleeping on the job 49 Bolt's unreliability was only further demonstrated b) her assertion that Schwacgler himself had used petty cash as a source for his living expenses when he first had arrived in California Her implication was, of course. that Schwaegler had not been observing any policy prohibiting petty cash as a source of funds for personal purposes, Yet, aside from the ancient maxim that "rank hath its privileges." at that time Schwaegler had been living in a motel until his famil) could be moved to the area from St. Louis. Accord- ingly, his expenses during this period were to be paid by Respondent In- deed, Bolt conceded that when Schwaegler had borrowed money from pelts cash he had placed a voucher in the fund for the amount of his advance. in contrast to her situation where she had simply placed an IOU in the petts cash drawer. Consequently, the money was an advance intended to compen- sate Schwaegler for living expenses, which Respondent had agreed to pas. Thus. Bolt's illustration of this asserted inconsistenct turns out to he neither inconsistent nor apposite to her situation where the mones was borrowed To support its contentions regarding Bolt's disclosures of confidential information and criticisms of Schwaegler, Re- spondent referred to incidents occurring in late December 1975 and early January. According to its witnesses, Bolt had divulged to at least one area manager that Hetherington's annual increase had exceeded those accord- ed other area managers. and this information had been conveyed to Hardy by Smith following his meeting with the three RSRs in the San Fernando Valley. Hardy testi- fied that on January 5, he had described to Schwaegler what Smith had told him, expressing concern for the mo- rale of his subordinates and adding that the information either had to come from him, which he knew had not hap- pened, or from Schwaegler's office. Schwaegler corrobo- rated Hardy with regard to the fact that this conversation had taken place.5° Both Hardy and Schwaegler testified that the conversation had ended with Schwaegler promis- ing to handle the situation. A second such conversation between Hardy' and Schwaegler arose after a January 13 conversation in which, according to Hardy. Bolt had recited her displeasure with Schwaegler's handling of a situation involving a lower su- pervisory official, and had described Schwaegler as being either cold-hearted or heartless, adding that she was not happy with him and did not like the way he handled peo- ple, that she did not like him as a boss. that she did not like the way he operated, and that he was not as nice as Ferris had been. Both Hardy and Schwaegler testified that the former had reported the comments regarding Schwaegler's handling of the lower supervisory official. In this regard, the testimony of each corresponded to the accounts recited in their pretrial affidavits. However, neither man's affidavit made any mention of Hardy repeating Bolt's comments regarding her general displeasure with Schwaegler as a sup- ervisor, although both testified that Hardy had repeated these comments during their conversation and each ac- cused the Board agent, who had taken the affidavits, of omitting this portion of their conversation from the affida- vit. Although I have reservations about this explanation. the fact remains that even were Hardy to have simply re- lated to Schwaegler the comments which Bolt made in con- nection with the handling of the lower supervisory official's situation, this would constitute a report of Bolt's criticism of Schwaegler's handling of a personnel matter. Although called as a rebuttal witness. Bolt did not deny having made the comments which Hardy had attributed to her. In these circumstances, it is unlikely that Hardy would not have reported to Schwaegler what she had told him. There would have been no apparent purpose for him to have omitted any portion of her comments. Moreover, such comments would constitute a disclosure of information by for a personal reason. A further point is Bolt's contention that pelts cash should not have been used as a source of advances for business trips This was disputed bs Schsaegler, who Illustrated his position by testifying that. pursuant to normal business pohlcy. 'Weightman and he would have recesled advances front petty cash for their expenses while in Puerto Rico. had thes made the trip '0 Although he testified that Hard', had named Bolt as the possible source of the disclosure. this was denied bh Hard',. who testified that he had specif- ically refrained from mentioning Boll, as he did nut want to accuse an),one without a specific basis This vas the onls significant discrepancs hetseen the t,,o w mtnesses' descriplionts of this conxersatl tn 403 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bolt and although she generally denied having disclosed confidential information, the fact remains that she also de- nied having reported receipt of the Union's letter to Potter. who flatly contradicted her testimony in this regard. Final- ly, that Respondent would consider information regarding area managers' wage increases to be confidential is illus- trated by its approach set forth in footnote 24, supra, of advising RSRs individually of wage increases which they received, even where those wage increases were also being received by other RSRs. Therefore, in view of the paucity of support which even Bolt describes herself as having afforded the Union, the remoteness of the purported November 1975 comment from the date of Bolt's termination, Bolt's intervening ac- tivity in which she appeared to have aligned her interests with those of Respondent, the fact that she was not an RSR, the general unreliability of her testimony, the fact that the date of her discharge was not consistent with the date upon which Respondent's antiunion campaign and unfair labor practices had commenced, and the substantial degree of support for Respondent's defense provided by testimony which is unrefuted, Potter's testimony' corrobo- rating the general nature of one of Respondent's conten- tions regarding Bolt and Bolt's admission of having en- gaged in the conduct which had precipitated her discharge. I find that a preponderance of the evidence does not estab- lish that Respondent had been unlawfully motivated in ar- riving at the decision to discharge Beverly Bolt on January 27. Accordingly, I shall recommend that this allegation of the complaint be dismissed. F. The Termination of Carol Manheimer on January 27 The motivation for the discharge of Carol Manheimer revolves around her relationship with Warehouseman John Kelly, and the latter's sympathetic attitude toward the Union. Since commencing work for Respondent in Octo- ber 1974, Manheimer's fondness for Kelly had been a well- known fact, particularly as they regularly ate lunch togeth- er and attended Respondent's social functions as a couple. Respondent contends that due to this relationship Man- heimer had reacted adversely upon learning of Kelly's ter- mination and that the scene that she had created in re- sponse to that termination had led Hardy to terminate her as well. Initially, the complaint alleged that both Kelly and Man- heimer had been unlawfully terminated. However, as set forth in footnote 4, supra, the General Counsel withdrew the allegation regarding Kelly, asserting that "certain of his testimony was untrue." Nonetheless, the General Counsel did not concede that Kelly's discharge had been other than unlawful; merely that his partially false testimony consti- tuted grounds for ceasing to pursue an allegation regarding his termination, without regard to Respondent's motiva- tion. Moreover, under the General Counsel's theory this would not affect Manheimer. Her termination, argues the General Counsel, was the product of Respondent's inde- pendent decision that her relationship with Kelly had prob- ably led her to share his sympathy for the Union, with the result that as Kelly's termination, regardless of the reason. had effectively removed a union supporter from the pay- roll, it had presented the opportunity to dispose of any threat posed to Respondent's unorganized status from Manheimer's suspected union sympathies. Thus Hardy ter- minated her. Alternatively, the General Counsel urges that Respondent acted from sheer spite by discharging Man- heimer to further punish Kelly for his known union adher- ence. Although not spurious as theories, the General Coun- sel's arguments do encounter heavy going upon entering the sea of facts surrounding Manheimer's termination. A considerable amount of testimony supporting the General Counsel's argument was advanced by Dennis Pot- ter. Without belaboring the matter, Potter simply was not credible. He appeared to be as hostile toward Respondent as the latter was toward the Union. The most flagrant illus- tration of his general unreliability arose from his efforts to undermine Respondent's defense regarding Morgan's ter- mination. He testified that there had been a day in Novem- ber 1975 when Manheimer had reported for work in an RSR's uniform, but that when he had inquired of Batty as to the reason for Manheimer's attire, Batty had replied that "he wouldn't tell me .... " Then, testified Potter, he ap- proached Manheimer and Kelly, asking the same question and receiving from Manheimer the answer that Morgan: . . . was being fired for talking about the Union, and this training session of all the girls had been in about a week I think it was, the Friday before, and-you know, I said -and she was telling me what was going on, that she was going to go to San Diego, and they were getting there early before the other girls were going to be balancing, with -were having her balance early so they could fire her, so nobody would know about it. Potter further testified that when he had asked Batty if Morgan were to be fired because she had talked about unionization, Battey had replied affirmatively. Potter's per- fidy relating to this conversation was unmasked by Man- heimer, who not only failed to corroborate his account of their purported conversation, but, in effect, directly con- tradicted him b? testifying that prior to leaving for San Diego she had not been told that she was to replace Mor- gan and had not been told the identity of the RSR whom she was to replace. 51 In an apparent effort to undermine Respondent's de- I In so testifring, M.lnheimer seemingly contradicted her own pretrial ;ffidavit il ihich she stated: "On TIuesda,s October 7th, 1975 Hardy and lethergintgun tiold mne at w,ork that there was a priorili situation in San Diego and that I would hae tuo go there on Thursday, October 9th. 1975. to replace Ilu Aln M oirgan temporprily, who had been terminated for poor performrance" (' oinflonted with this portion of her affidavit. Manheimer tlelified that a segnient of i had simnipls been the insertion of her own opinl n: In that sItatir lt I amil putting in is opinion. It is not directli there is a icommal In there (Gars Hletherington told me that I would be goinig irt of like I ami irljecting ms opinion in that Gar. tfethering- tonl did nol tell me that I would be going down and replacing L u Ann Morgan telimpoiarily. I would just be going down to San Diego. and then I inseCted that it was mr opinion that I had been told by fellow ciploser thlha it wJould be rIoute 35., hich is L.u Ann Morgan's. I'his was riot . convinclingl? aidanced explanation and it appeared. from Muinheiler's delieanor when interrogated about this subject, thaut he had been a;tlcilptilng to fortif) Morgan's case against Respondent during the Isc tig.arvie phase of this pi cceding, 404 L'EGGS PRODUCIS INCORPORATED fense to Bolt's discharge, Potter testified that he had been permitted to borrow money from petty cash, listing as among his loans an advance for $140 and a second ad- vance for $150, both of which were subsequently repaid by deductions from his paychecks. The latter point would, of course, establish that higher management had been aware that area managers were loaning money to employees -a point that must have been obvious to Potter, for his testi- mony in this regard was elicited when called as a rebuttal witness. Consequently, it was clear from the context of his testimony that he intended to convey the impression that these were amounts which were strictly loans: "1 borrowed up to $150. Maybe more." It came as somewhat of a sur- prise, therefore, to subsequently learn that due to an error made in January 1975, Potter had been reclassified to part- time status. Since no timecards had been submitted for his work, no paycheck had been issued to him for the payroll period ending January 31, 1975. Further, his paycheck for February 28, 1975, had provided only partial payment for the time which he had worked. Accordingly. because of the reclassification error, these two large amounts had been advanced to Potter from petty cash. They were not loans. Rather, they were means of compensating Potter for Re- spondent's past failure to pay him the full amount to which he was entitled. Surely he could not have been ignorant of that fact. Yet. in testifying, he had blithely equated them with the loans for lunch which Batty had extended to him from petty cash and implied that the deductions from his paycheck had demonstrated higher management's aware- ness that such "loans" had been extended to him. Before departing from consideration of Potter. a final point should be made with regard to his testimony con- cerning the terminations of Kelly and Manheimer. On di- rect examination, he described a dinner conversation with Batty, following their terminations on January 27, in which Batty had assertedly admitted many' matters damaging to Respondent's defense, one of which was that Kelly's dis- charge might have occurred because during the manage- ment meetings of the prior Friday. "probably one or more of the area managers fingered [Kelly'] out, you know, think- ing that he was involved in union activities." On cross- examination, Potter denied that it had been his intention to discuss the subject of the Union with Batty that evening, agreeing that their conversation had been the first opportu- nity that day for him to speak with Batty about Kelly's discharge. Further questioning led Potter to confuse what Batty had said to him during this conversation with com- ments which he attributed to Hardy during an earlier con- versation that same day. The result was that Potter then retracted his earlier testimony, asserting that earlier that day there had been mention of the subject of Kelly's termi- nation, but "we didn't go into big discussion about it. That's when we went to dinner later on. There I asked him again." Later Potter was questioned about his own less-than- commendatory opinion of the caliber of Kelly's work. He testified that while Kelly had been a poor performer in the past, his work had shown improvement during the period immediately prior to his termination. Such testimony w as not, of course, helpful to Respondent's position that Kelly's performance had been marked by a number of de- ficiencies. T o reinforce this opinion of Kelly's work. Potter testified: The da) he was fired John told me about his termina- tion. Okay. Before he was fired that day. I knew about it. I knew he was going to be fired that day. Okay. And I may have agreed with him as far as the work was concerned, but I did not agree with his termina- tion. I)amaging as such testimony was to Respondent's defenses regarding the poor caliber of Kelly's work, it had the added effect of further contradicting Potter's initial testimony that he had not had an opportunity to speak with Batty concerninle Kelly's termination prior to the time that the termination had been effected. This was pointed out to Potter bN the cross-examiner, with the following results: Q. All right. Then can you tell me why it is that that night now at dinner you asked Batty why Kelly was fired? A. It was I asked him again, and then he told me. Q. Well, wait a minute. You had had a second con- versation, had you not, during the day after the actual termination asking Batty why Kelly was fired, and he said something like it is a company decision, is that right? A. That's right. Q. So now at dinner we are talking about your ask- ing Batty why Kelly was fired a third time or having a third discussion with him on it, is that right? A. No. Let me think a second, please. Q. Well, understand the question. The question is whether or not this was the third discussion you had with Batty on this subject that day. A. Okay. The first time I talked to him I disagreed because he was doing a good job. and he says. well, it is, you know-okay. And he just said. well. I am not going to say nothing else. We didn't go into no long conversation. Okay. Then the second time he says when he did get fired, he said it was a company deci- sion, just like, you know, what Leon said, and then when we were talking at the dinner I asked him again. and he told me what he thought what the reason was, because I wanted to know the reason. They weren't giving any reasons why he was fired. Q. Didn't Batty tell you the very first time it was for poor work performance even though you disagreed? A. That's true. But I didn't believe him, and why would he change. That's why I asked him again, be- cause I didn't believe him. That was the reason. That's who I asked him again, and that's when he told me about that he probably was fingered out, and that was why he was fired. Q. lie said probably that's why, is that right? A. VWords of that fact. [sic] I am not real sure exact- ly what he said. It was Potter's testimony, as I am sure he clearly per- ceived, that provided the principal support for the allega- tions concerning Kelly' and Manheimer. Removal of his unreliable testimony leaves hardly any' evidence remaining to support the General Counsel's contention that Man- 405 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heimer had been terminated for unlawful considerations. Indeed, most other evidence points in the opposite direc- tion. For example, Kelly had been involved in a number of discussions with RSRs regarding the Union and had at- tended a January union meeting at which he furnished a list of the RSRs to the organizers and signed an authoriza- tion card. Beyond that, his activity had been nonexistent. He certainly could not be fairly characterized as a promi- nent or foremost leader in organizing meetings and solicit- ing signatures on authorization cards. Manheimer was even less active. While she attended the same meeting as had Kelly, she neither had signed an authorization card nor, so far as the record discloses, had engaged in any discussions with RSRs regarding the Union. Moreover, Kelly admittedly made efforts to conceal the activity in which he had engaged on behalf of the Union. It appears clear from the sequence of events that had led the Winston-Salem officials to Buena Park that Respondent had not learned of the Union's campaign until January 21. It also appears clear, from the fact that both Kelly and Manheimer, like Bolt, remained employed by Respondent on January 26 and for most of January 27, that, in contrast to Wade, nothing had been disclosed regarding Kelly's ac- tivities during the weekend meetings which the Winston- Salem officials conducted with local management. If one thing was clearly apparent in this case, it was that Respon- dent had every intention of commencing its antiunion cam- paign at the earliest possible moment, and as Wade's termi- nation illustrates, it did not intend to continue to employ union supporters any longer than necessary. I have consid- ered the possibility that the terminations of Manheimer and Kelly were deferred in an effort to make the legality of those terminations appear more plausible. However, in this regard the timing works against the General Counsel, for a I-day hiatus would hardly enhance Respondent's defense. In contrast, it would permit a union supporter additional time to engage in activities on behalf of the Union while on Respondent's payroll. Thus, contrary to General Counsel's argument, the timing factor actually works against a find- ing that Manheimer had been terminated for unlawful con- siderations. There can be no dispute regarding the fact that Kelly had been an unsatisfactory employee for some time. It had been his own false testimony on this very point that had led to the withdrawal of the allegation that his termination had been unlawful. Although obviously making every possible effort to avoid the favorable effect which his testimony would have on Respondent's defense, Potter agreed with Respondent's descriptions of Kelly's inadequate perfor- mance and further, conceded his participation in conversa- tions with Batty regarding Kelly's deficiencies. Indeed, it was that very lack of acceptable work performance that had led to Kelly's being placed on probation following Manheimer's elevation to branch clerk in August 1975. Consequently there is considerable support for Hardy's tes- timony that his determination to terminate Kelly had been made when he had seen the latter sitting in his van, laugh- ing and talking, while RSRs waited to receive their prod- uct. An additional factor is rooted in the sequence of events which immediately preceded Hardy's announcement of Manheimer's termination. It is undisputed that late on the afternoon of January 27, Kelly had been summoned to Hardy's office where, in Batty's presence, he had been ad- vised of his termination. Kelly had been first to leave the office, walking down a hallway and then into the reception area where branch clerks Lew and Manheimer were work- ing. In passing through this area, on his way to the ware- house. Kelly had related the fact that he had been termi- nated to Manheimer and then had walked through the door to the warehouse. This had been followed by Hardy entering the reception area, summoning Manheimer to his office, and announcing her termination. The sole dispute in this sequence of events stems from Manheimer's reaction between the time that Kelly had advised her of his termina- tion and the time that Hardy had arrived in the reception area. Hardy testified that as he had entered the reception area he had heard Manheimer exclaim "I'm going home" and that when he had looked in her direction, she had been flushed and "teary-eyed," 52 appearing to be emotionally upset. According to Hardy, when he had asked what was wrong, Manheimer had retorted "they fired John" in an angry and anguished tone of voice. Hardy testified that it had been at this point that he had made the determination to discharge Manheimer due to her obviously adverse reac- tion to Kelly's discharge: Well, I figured that I knew the relationship. We had talked about it. She had told me it wouldn't affect her. And yet, you know, what I suspected could happen, did in fact, you know, happen; that Carol Manheimer just wasn't going to accept it. She was emotionally upset about it. She was angry about it, in my mind. And I could see that, you know, I just looked in her loyalties. Her work performance, her relationship with Kelly would be, you know-rather, with John Batty would have, you know, that would have some effect, some effect on her whole job performance. Manheimer denied having made these statements. On direct examination she described what had taken place that afternoon as follows: John walked out of Leon Hardy's office and he passed me and he said something and I didn't hear what he said. So I took a few steps toward him, which was in the direction of John Batty's office. Then he told me that he had been fired and I asked him "What," because it hadn't occurred to me what he really said, it didn't really register. So then he said some words which I can't recall and then I turned to Florence and I said, "did you hear what he said?" And she said, "ye:." And then at that point Leon Hardy came out of his office and said he would like to speak to me. '2 When the General Counsel pointed out that in his pretrial affidavit Hard) had described Manheimner as being "nearly in tears," Hardy had testified that he viewed this as being synonymous with "teary-eyed." which he used to describe a situation where "you can see water in the eyes when somebody is about ready to cr) or is emotionally upset." 406 L'EGGS PRODUCTS INCORPORATED On cross-examination she varied this description. testify ing that when she had asked for the second time what Kelly had said, he had replied "That he had been fired. fHe re- peated it." Manheimer testified that "I think I asked wuh and he said that it was a company decision." Consequent- ly, not only was she able to remember Kelly's words on cross-examination, in response to her question, the second time, as to what he had said, but, in addition, she added that she had asked him why, to which he had replied that it had been a company decision. However. she continued to maintain on cross-examination that Hardy had arrived in the reception area immediately after Lew had answered her question: "I turned to Florence and said. 'Florence. did you hear what he said?' And she said yes. And at that point Leon came down the hall and said he wanted to see me in his office." Notwithstanding her recitation of the sequence of events, Manheimer conceded that 2 or 3 minutes had elapsed between the time that Kelly had departed and the time that Hardy had arrived. Accordingly, it is clear that there was sufficient time for more to have happened in the interim than was contained in Manheimer's description. This was a fact which Lew confirmed, for while her de- scription of the events which had preceded Manheimer's query to her paralleled that of Manheimer, she further tes- tified that Manheimer had asked her question as "I was leaving my desk and I was going down the hallway toward Mr. Hardy's office where they have the restroom and wa- ter." As she walked down the hallway, testified Lew. she had encountered Hardy coming from the other direction and he had paused to advise her that he would speak with her later. Consequently, there was sufficient time for Man- heimer to have absorbed the impact of Kelly's message and to have made the determination, described by Hardy. to go home. Indeed. she acknowledged that she had been upset at the time and Lew had described her as being "kind of red in the face as if she was croing." although Lew denied that Manheimer's eyes had been waters or that she had been "real upset." This testimony lends plausibility, how- ever, to Hardy's description of Manheimer as being "teary- eyed" when he had encountered her shortly thereafter. Furthermore, while Manheimer denied having shouted and having announced that she was departing because of Kelly's discharge, she acknowledged that "I suppose I might have been angry." Indeed, she testified that when she had entered Hardy's office, his first comment had been a question regarding what was wrong. Asked if she had ans idea as to why Hardy had posed the question. she replied. "Certainly. I was angry." Therefore, both Manheimer's at- titude and appearance were consistent with Hards's de- scription. In his brief, the General Counsel assails Respondent for having terminated Manheimer as quickly as it did, arguing that even if her reaction had been as described by Hlard', "it would seem that Respondent would have at least waited a reasonable period of time, perhaps a day or two to see what effect it would have on her work." Of course. it is not the function of the Board to pass judgment on whether an employer's actions are "reasonable." This argument begs the question every bit as much as did Respondent in argu- ing that Wade had only received the lowest acceptable rat- ing on her December 1975 monthly evaluation. Further- more, the General Counsel's argument ignores the fact that Hardy had shown concern in the past regarding the effect which Manheimer's relationship might have should Kelly be terminated. Although called on rebuttal, Manheimer did not specifically deny Hardy's testimony concerning prior conversations with her about the matter.5 3 Moreover, the parties stipulated that "on her employment interview vith Mr. Hardy there was an extensive discussion between Mr. Hardy and Ms. Manheimer about that relationship . . ." Accordingly. the matter had been of concern to Hardy. His immediate response to Manheimer's conduct that afternoon, whether or not reasonable in the view of the General Counsel, was consistent with that previously displayed concern. Conversely, some support for the General Counsel's con- tention that Manheimer had been terminated unlawfully was provided by Lew's testimony that she had been sum- moned to Hardy's office. following the termination, where llards had advised her that Kelly and Manheimer had been terminated, and had asked her to trust him as Re- spondent "really needed my help now." Lew testified that when she had inquired about the reason for the termina- tion. Hards had replied that it had been a company deci- sion. that he could not tell her everything, but might be able to do so somedas. and "the less you know the better off you are." Based upon Lew's account. Hardy's com- ments arguablN contain both an appeal for support against the Union and a veiled reference to the unlawful nature of the discharges. However. the afternoon had been an unset- tling experience for Lew and. while I have no doubt as to her honesty, her perception of events could well have been influenced by the abnormality of the situation. When he testified about this conversation, Hardy did advance a plausible explanation for his comments, saying that he had invited Lew to his office because she had ap- peared confused and upset. that he had advised her of the discharges. and that he had appealed to her for help in performing Manheimer's work until a replacement could he obtained. Viewed in this light, the statement that Re- spondent "reall, needed [I.ew's] help now" becomes less onerous in appearance. referring to a request for assistance in handling the workload, rather than one for support in Respondent's antiunion campaign. Also consistent with Lew's testimony was that of Hlardy' to the effect that Lew had inquired regarding the reasons for the discharges and that he had told her that he did not want to discuss it then, but possibly thes could discuss it later. Hardy testified that it had not been a policy of his to discuss reasons for termi- nations with other emplosees-a policy consistent with Re- S.nom hlihl .a to the decree of rehlahili(t that can he al.rihuted to telrnhmltler', , te iiis- winas lhed ,hen she testified Ihat Hlarid had ,iniplI told her thati KiR] 's pihatn tl.l. ould noot afe...t her status .ith Rep..ndenl ,inid hiicIl hc deinlc. Ic c.hlhi il\thini els'e r habout eiher that con ier.ltio, n '.tr aIhOLl l.lrd\X h.hil .k i ' aii icroked i r n hoau she ntght feel in Ihe c'ent Ihi Kell, ,ii lternluil'ed I t 'A direril.s contro. erted Mlatnheitner , tetirnito h? Tencif in Ithat \lanhelmer hid one reported to her that ,irl.li hid adl,,'ed l.,llhelitcr toF Kell,', prhaililn aind ha.d taked if he r oul d .i i it it .Cir, Relp!,nlld t to terrn llllnte Kellx A\ordllng I , [i em \1 nhewc r tie d sae d lh.i ht e ' l t, old l. rd'i thi t ,he n.,'ldii ,l t ll were K ]e\ ti, he tetillrltmted 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's policy of not discussing with employees the wage increases which have been accorded to other employ- ees and "I just really didn't want to get into it with Flor- ence Lew and it was sort of a brushoff." That is, Hardy's comments were designed to avoid Lew's question by ad- vancing a vague answer which would serve to terminate their conversation. Viewed in this light, Lew's account of the concluding portions of the conversation, which is con- sistent with Hardy's asserted objective, loses the onerous implication which otherwise could be attributed to them. Although I have not credited Hardy in other areas, I be- lieve that he lacked the subtlety to be able to construct such an explanation out of whole cloth and, moreover, feel that the unusual events of that afternoon could well have contributed to a mental state in which Lew would read more into Hardy's comments than he intended. In these circumstances, Hardy's comments, as described by Lew, are entirely too ambiguous to constitute a basis for a find- ing that Respondent had been unlawfully motivated in ef- fecting Manheimer's termination. In the final analysis, this facet of the instant case pres- ents two opposing sets of witnesses, each of whom, save Lew, demonstrated no reluctance in tailoring their testi- mony to support their opposing positions. Although the matter is not wholly free from doubt, I am constrained to find that the General Counsel has not established by a preponderance of the evidence that Manheimer's termina- tion resulted from Respondent's belief that she supported the Union nor from Respondent's desire to further penalize Kelly. It cannot be disputed that Respondent had shown concern with the effect of Manheimer's relationship with Kell)y should the latter be terminated. Moreover, objective considerations would appear to support Hardy's descrip- tion of Manheimer's conduct on the afternoon of January 27, when she learned that Kelly had been terminated. Re- spondent's sensitivity to this subject, coupled with the mag- nitude of Manheimer's reaction, appear to have in fact been the reason for her termination. This conclusion is fur- ther supported by the relatively insignificant activity on behalf of the Union by Kelly, when compared with the activities of RSRs who had arranged for a number of meet- ings, had attended a number of meetings, and had partici- pated in soliciting authorization cards; the paucity of activi- ty on behalf of the Union by Manheimer as well as her apparent indifference to the Union's campaign; the fact that Kelly was not himself a credible witness which result- ed in a concession by the General Counsel that Kelly had, in fact, dissembled in denying that he had been warned and placed on probation due to Respondent's dissatisfac- tion with his prior work performance; the fact that it is undisputed that Kelly had been malingering when Hardy had observed him and had made the decision to terminate him; and, the final fact that neither Kelly nor Manheimer was terminated at a point in time that would fit into Re- spondent's campaign of unlawful activity in opposition to the Union as formulated during the Winston-Salem offi- cials' visit to Buena Park. Therefore, I shall recommend that the allegation of the complaint regarding Manheimer's termination be dismissed. G. The Meeting of February 5 On February 5, Respondent held a dinner meeting at- tended by all RSRs in the Buena Park or Southern Califor- nia District, at which a new in-line display was presented and at which Engle then delivered a speech opposing the Union. The complaint alleges that during the course of his remarks Engle had threatened employees with discharge and other reprisals, had made statements creating the im- pression that it was futile for the RSRs to support the Union, had solicited revocation of authorization cards and had created the impression that Respondent was engaging in surveillance of the RSRs' union activities. Although the General Counsel apparently abandoned the last allegation, regarding creation of the impression of surveillance, for it was not argued in his brief, he supported the first three allegations with arguments that the allegation of threats pertained to Engle's alleged remarks, in response to em- ployee questioning, that RSRs might have to account for their time more strictly and turn in their vans each day were they to become unionized; that the allegation of im- pression of futility was directed to Engle's asserted remark that Respondent would not agree to anything if the Union ever got to the bargaining table; and that the allegation of soliciting revocation of authorization cards concerned Engle's purported admonition to the RSRs that they could sign a revocation petition which he had observed Hungate circulating earlier that evening, coupled with an alleged remark that the employees could seek the advice of Re- spondent's counsel. As a general observation, the one conclusion emerging from analysis of all testimony concerning this speech is that the length of Respondent's presentation that evening had clearly exceeded the attention span of the RSRs. Their testimony was incomplete, inconsistent, and vague. None- theless, certain common denominators do emerge. The ba- sis for Respondent's remarks that evening was a six-page text, prepared and then carefully reviewed by counsel, who had specifically instructed Engle not to deviate from the written comments, Although a few RSRs testified, when read portions of the speech, that certain remarks had not been read by Engle, all persons in attendance at the meet- ing who had been involved in the preparation of the text testified that, so far as they could ascertain, Engle had not deviated from the remarks as written. The fact that Engle had been so careful in preparing the text-particularly the fact that he had ensured that the textual remarks had been reviewed carefully by counsel-leads me to believe that he did. in fact, read all of the remarks in the text during the February 5 meeting. Indeed, Respondent's antiunion cam- paign to this point leads to the conclusion that it was too sophisticated to deliver blatantly unlawful statements in front of a number of potential employee-witnesses. As the General Counsel specifically disavows any contention that the remarks in the written text violate the Act, there is no basis, under Section 3(d) of the Act, for consideration of whether those statements constitute violations of the Act. Medicine Bow Coal CompanY, 217 NLRB 931, fn. 2 (1975); 408 L'EGGS PRODUCTS INCORPORATED cf. Alexander Dawson, Inc. d/b/a Alexander's Restaurant and Lounge, 228 NLRB 165 (1977).54 This does not end the inquiry, however. for there re- mains the further question as to whether Engle made re- marks that evening in addition to those contained in the written text. The answer to this query must he affirmative, for delivery of the speech was followed by a question-and- answer session in which Engle made remarks that were not scripted. It is undisputed that during the question-and-answer ses- sion Engle had referred to vans and timeclocks. In reality. there are two facets to this portion of the General Coun- sel's allegations. In the written text reference is made to the fact that Respondent is unique, as its operations were de- signed to maximize the freedom of action afforded RSRs, and that so "long as the calls are made as scheduled. you can set your own hours and, depending on the way you plan your work, the length of your workweek." Following his deliver) of the prepared remarks, Engle was questioned regarding the possibility that unionization might deprive the RSRs of their ability to take vans home at night and might lead to a requirement that they punch timeclocks. Radcliffe and Engle both testified that the latter had re- sponded to the question regarding vans by saying that he could not say what would happen if the RSRs became un- ionized and that he was limited in what he could say as he was unable to discuss changes, but that in his long experi- ence he had encountered unionized firms where the em- ployees were required to return their vehicles to the ware- house, rather than take them home, at the end of each workday. Engle made no mention of any question having been raised concerning timeclocks, but Radcliffe acknowl- edged that Glauber had raised this issue and that Engle had responded by saying that he could not say what would happen, but that he was familiar with situations where peo- ple did have to punch timeclocks under union contracts. The simple fact is that these answers by Engle suffered the same infirmities discussed in section IV. B. above. re- garding the area managers' comments about timeclocks and vans. No evidence was produced to support Engle's assertion that he had encountered such restrictions on vans and such requirements concerning timeclocks in union contracts. There was no showing that imposition of such requirements would result from unionization, beyond Re- spondent's control. Engle did not tell the RSRs that these changes would not be automatic and would occur only if there was agreement during collective bargaining. Thus, the comments are unlawful on their face. Moreover, it is apparent that they were not inadvertent lapses arising from ignorance of the law.55 In the first place, Respondent was not an unsophisticated performer in the area of labor rela- tions. Indeed, both Radcliffe and Price were available to Engle and both of them had extensive experience in the 54 In challenging ms ruling precluding esidence regarding Rep.,npdenri' reasons for terminating Kells Respondent might do sell to ponlder ile Board's holding in Alesxanderr, supra. particularl as the (General ( olunreli theory concerning Manheimer's termination "eas "closek rel.lled" t the reason attributed to Respondent forr erninating Kell. " Even had Engle not intended Io liolate the Act. this ,ould not excusc Respondent's violallon if such comments interfered wvith. I-estr.liamed. and coerced employees within the meaning of Sec 8(a;1) Illf the Act Ime.iil Lumber Sales. Ine . 229 Nl RB 414. 416 t1977). area of labor relations. Secondly. Engle's remarks directly paralleled those which at least two of the area managers niade to various RSRs during individual meetings which had followed receipt of the Union's letter. The choice of vans and timeclocks as benefits which were singled out for discussion hardly appears to be inadvertent. Indeed, exam- ination of Radcliffe's notes describing the question-and- answer portion of the meeting discloses that the question regarding vans had been asked by Hungate and that the one concerning timeclocks had been put to Engle by Glau- her. These were the very same two employees who had been making telephone calls on Respondent's behalf to persuade RSRs to cease supporting the Union and to as- certain the positions of the various RSRs regarding the Union, which were then reported back to Price. In these circumstances, I find that Engle did threaten to change procedures with respect to vans and to institute a require- ment that RSRs punch timeclocks should the Union be- come their collective-bargaining representative. According to the General Counsel's brief, the allegation that Engle had asserted that Respondent would not agree to anything in bargaining with the Union is based upon testimony given by Carol Washington, Nancy Schmidt. and Heidi Sindelar. Clearly. Washington did support this allegation. testifying that Engle had said that should the RSRs become unionized. nobody could tell Respondent at the bargaining table what to do and if they did get to the bargaining table. Respondent would not agree to anything. Her description of Engle's words remained firm through cross-examination: "It is ms testimony that Engle stated that the company would neser agree regardless of whether it would be reasonable or practical to agree." Similarly, Schmidt testified that Engle had said that Respondent would be the one who would have to agree to any terms of emplosmeint sought if it came to bargaining, and that Re- spondent did not intend to agree to anything. She further testified that Engle had said that the RSRs would not get anywhere in an) event if Respondent did not agree. Sinde- lar. however. gave the following account of Engle's com- ments in this area: He told us he told us that L'eggs was going to fight it in every legal way possible, and he said there is- I don't knoss his exact wording-but he said that what can the Llnion require you to do. What can the Union require L'eggs to do. And he said absolutely nothing can be required, and we will not yield to strike pres- sure. Sindelar's account of Engle's words, cited by the General Counsel to support his argument that Engle had said that Respondent would not agree to anything, is significant, for it parallels a portion of Engle's written speech, conceded by the General Counsel not to be unlawful, which reads: Actually. what could a union require L'Eggs to do. Most people do not realize it, but the true answer is .NO ttlNs(G. Nothing that the company might not con- sider to be reasonable or practical. The union can only trs to pressure the company by making you strike. If I do not get oanother point acro.s to ou tonight. I hope l ou will londerstand that L'Eggs has no intention of vielding to aLnl' nort of .strike pressure. 409 DECISIONS OF NATI 1BOR RELATIONS BOARD This segment of the speech was read to Washington a, Schmidt on cross-examination. Both denied that Engle had stated these remarks on February 5. Yet, in contrast to Washington, Schmidt conceded that she did not recall word for word what Engle had said on the subject, and it was apparent from other testimony which she gave con- cerning this same speech that her recollection of Engle's remarks was less than perfect. Moreover, it simply makes no sense for Respondent to have gone to the trouble of carefully preparing the speech only to omit parts of it. In- deed, Sindelar's recitation of this portion of Engle's speech tends to confirm his own testimony that he did in fact deliver these words that evening. Both Schmidt and Washington were strong union advo- cates. Indeed, so firm in her conviction was Schmidt that as the meeting concluded, in front of Respondent's offi- cials, she went to the podium, where she announced a meeting at which the Union's side of the story would be presented. In these circumstances, it appeared to me that both of these RSRs were reading their own impressions and fears into Engle's remarks and were relating not what they actually heard but rather their own preconceptions as to what Engle's words meant to them. This was illustrated clearly by Washington in her testimony regarding the crm- ments about timeclocks and vans, for she testified that En- gle had said that if the RSRs became unionized, they would have to be placed on an hourly basis with Respon- dent establishing a special monitoring system to monitor their hours very carefully. She was the only RSR to so testify, and her remarks clearly bear no relationship to Engle's above-described comments concerning these sub- jects. Accordingly, I find that Engle did not tell the RSRs that it would be futile to select representation by the Union because Respondent would not agree to anything in bar- gaining. The final allegation regarding Engle's speech involved his asserted appeal for signatures on a petition revoking prior support of the Union. A petition opposing the Union had been circulated among the RSRs that evening. Nuro. whose antiunion sentiments had become fixed, testified that she had signed such a petition which she believed had been discussed with her by Hungate and had then been presented to her for signature by Pizzino. Similarly, Diane Getchel described Hungate as having been active in circu- lating such a petition throughout the course of the evening. and Rita Gaines testified that Hungate had approached Weber with the petition while they were having dinner at the same table. Also seated at that table, with Gaines and Weber, was Engle, who, according to Gaines, had momen- tarily looked in the direction of Weber, seated next to En- gle, as Hungate discussed the petition with her. At that time, testified Gaines, the petition was plainly visible. Ka- thy Crawford testified that she had signed a petition revok- ing her signature that evening, but that it had been given to her by Glauber. This conformed with Price's testimon' that Glauber later had reported to him that she had been involved in circulating a petition which Price had found in his suitcoat pocket toward the end of the evening. Signifi- cantly. the petition itself conforms to Nuro s description as "a ragged piece of notebook paper" and, additionally, bears the signatures of Pizzino. Nuro, and Janice Weber. This, then, raises the question of what had been said by Engle during his speech concerning revocation. The writ- ten text states that employees who had signed cards were free to withdraw them: I want to give you this definite assurance that any of you who have signed union cards, but now wish you had not done so can change your mind in complete confidence that you are not going to be harmed in any way. You can, however, do some positive things to help your cause. Some of the RSRs have said they already have asked for their cards back. You can do this under the law. The federal law protects you if you do not want to belong to a union. If you are threat- ened or harassed in any way, let us know. We have hired legal counsel here in Los Angeles who will help you if you need it. There was conflict among the RSRs as to whether Engle had made these remarks, typified by Washington's outright denial that Engle had said them. Sindelar's lack of recollec- tion of having heard Engle say some of the things con- tained in that portion of the written text, and Crawford and Kuriyama's agreement with Engle that the words had been spoken by him during the evening. Although the written text does not contain the word "let- ter" with reference to revocation, many of the RSRs agreed that Engle had employed that noun in referring to the revo- cation of signatures on authorization cards. The dispute centered on whether Engle had referred to a specific letter. Gaines testified that Engle had stated that if the RSRs felt like retracting their cards they could either write a letter to the Union requesting return of their cards or there was a letter circulating that they could sign to get their cards back. Crawford testified that Engle had added to the pre- pared remarks the statement that someone would be con- tacting the RSRs with a letter that they could sign to have their names revoked and Kuriyama testified that Engle had added that there was a document which the RSRs could sign to "void out" any card they had signed. According to Kuriyama. Engle had said "this piece of paper" or "this document," but he had never displayed a document during the course of his remarks. Branch Clerk Lew testified that Engle had said that there was some kind of paper that the RSRs could sign, but she conceded that he did not say or point to a letter that was being circulated. Washington de- nied flatly that Engle had referred to a specific letter, but she testified that he had said that there was a letter which the RSRs could sign to revoke their names from the cards. Rehmann and Schmidt both testified that Engle had said that RSRs who felt that they had made a mistake or had changed their minds could send a letter of revocation. In the final analysis, it is really not material whether Engle singled out a particular letter that evening, for it is clear that he did refer to revocation letters in connection with RSRs withdrawing their support from the Union. To a significant extent, as found in section IV, B, supra, Respon- dent had initiated the revocation campaign through sug- gestions of its area managers. The two foremost propo- nents of revocation among the RSRs were Hungate and Glauber. both of whom, as found in section IV, C, supra, 410 L'EGGS PRODUCTS INCORPORATED were aided and encouraged by Respondent in their cam- paign to prevent unionization of the RSRs. These were the very same two RSRs who had been active on the evening of February 5, circulating a revocation petition among the RSRs during the meeting at which Engle had spoken. Moreover, it was this very petition which had ended up in Price's coat pocket. As found above, it was in his other remarks that Engle had directed threats to the RSRs should the Union become their bargaining representative. In these circumstances, it is obvious that Engle had been attempting to persuade the employees to revoke their au- thorization cards. Accordingly. his comments, in the con- text of the circumstances presented at the time, are suffi- cient to constitute the solicitation of employees to revoke their union authorization cards. Therefore, I find that on Februarv 5, Respondent. through Engle, did threaten employees with reprisals and did solicit employees to revoke their authorization cards in violation of Section 8(a)(I) of the Act. Further, I find that Engle did not make statements to employees creating the impression that it was futile for them to support the Union and did not make statements to employees creating the impresssion of surveillance of employees' union activities. Accordingly, I shall recommend that these latter two alle- gations of the complaint be dismissed. H. The Postmeeting Elvents Following Engle's speech, Respondent's conduct began to decline in magnitude. However, a few incidents trailed in its wake. Following the meeting, a conversation oc- curred involving Quigley, Hetherington. and Radcliffe. Quigley testified that the conversation had been initiated by Hetherington, who had asked if she now understood Respondent's position, to which she replied that she had understood it from the beginning. but did not feel that Respondent understood her own position. At this point. testified Quigley. Radcliffe had interrupted by inquiring why she was for the Union and she had enumerated her points of dissatisfaction, such as the holiday workweek schedule and the inadequacy of the amounts of salary in- creases. According to Quigley, Radcliffe had then inquired how she would like clocking in and out were the RSRs to become unionized, and Quigley had replied that possibly Respondent would then realize how much time the RSRs were spending performing their duties. Based upon these remarks, the General Counsel alleges that Radcliffe both unlawfully had interrogated Quigley and had threatened her with more onerous working conditions. Respondent, however, argues that this conversation was no more than a simple exchange of views, with Radcliffe having simply followed up on Quigley's comment regard- ing Respondent's lack of understanding of her position by, in essence, inquiring what she meant. Consistent with that defense, Radcliffe denied having referred to the timeclocks and having inquired how Quigley would like clocking in and out should the RSRs become unionized. Rather, he testified that as he had returned to the room following Engle's speech. he had passed near Hetherington and Quigley on his way to the bar, overhearing Hethering- ton asking if Quigley now understood Respondent's posi- tion and Quigley replying that she did but that she did not feel that Respondent understood her position.56 At this point. Radcliffe testified that he had asked her what she had meant and that she had retorted that she was mad because Respondent had "made" her join a union by fail- ing to take corrective action respecting such matters as long hours. excessive stops, and increases which failed to reflect qualitative differences in the work performed by the various RSRs. According to Radcliffe, he had simply re- plied that while he could not make predictions as to what would happen, he could say that Quigley had attracted Re- spondent's attention, after which Quigley had changed the subject by referring to a dispute which had broken out near the end of the meeting and which had been precipitated by Nuro's comment that the RSRs had been misled and had not understood what they had been signing when they had signed cards for the Union. Radcliffe testified that Quigley had characterized this as a "ridiculous" assertion and that he had replied to her comment by saying that while she might not have been misled. possibly she was brighter than the other RSRs. While he appeared as a witness for Respondent, Hether- ington gave no testimony regarding this conversation and. accordingly, did not corroborate Radcliffe's account of the words exchanged by him and Quigley that evening. I find that Hetherington and Radcliffe did make the comments attributed to them by Quigley. As admitted by Radcliffe, the conversation had been initiated by Hether- ington. whose question referred to remarks by Engle. some of which, as found above, constituted unlawful threats and an unlawful appeal for withdrawal of support from the Union. In this regard it should be recalled that it had been Hetherington who had appealed previously to Quigley to "take a step back" in her support for the Union. The refer- ence to timeclocks, attributed by Quigley to Radcliffe, is consistent with one of the two themes-timeclocks and anls employed by Respondent throughout in its threats to RSRs' working conditions should they become union- ized. Moreover, Radcliffe's uncorroborated description of Quiglev's comments is simply at odds with her attitude that evening. Radcliffe depicted her as complaining of, in ef- fect, having been compelled to support the Union even though she was not particularly desirous of doing so. But, all agreed that during the meeting, when Nuro had voiced the opinion that the RSRs had been misled, it had been Quigley who had immediately risen to the Union's defense, disputing such an assertion and accusing Nuro of insulting the intelligence of the RSRs. Yet. 5 minutes later, Radcliffe portrays her as a poor waif in her cups, expressing despair because Respondent had "made me join the Union." I find that Hetherington and Radcliffe did make the statements attributed to them on February 5 as described by Quigley and that Radcliffe's comments constituted un- lawful interrogation and threats. ' Raidchffe descrlhcd Quigle aIs drinking a beer and speaking in 1 loud \)2lc aith wards thai ,cre -soniv.n ha slurred" during this exchange of orniltlreniit lIl ,x-eer there .i, ni, contentiin thai she had been drunk. nor I, there e idcnlc to' support Sic h ;in a.ssertoln aere it to ha.e been nlilde ,i\,ordltncl. I find that QuiLles -\.as cpa.ble of underslandlng 'h.lt htad heein tl S halli 'ceing nild n of renilermermn the words, that uere spoken I /ll, I, d, .¥a ( ,l / 224 NI RH 866hh 86 fn 4 (17h6) 411 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Additional postmeeting comments arose during the course of telephone conversations which took place when Price called Glauber and Hungate. Although Price initially equivocated regarding what had been said by him to these two RSRs, he ultimately acknowledged having asked them how they and the employees in general had felt about Engle's speech. Given the unlawful nature of some of Engle's comments during that speech, the similarity of Price's questioning to Respondent's overall campaign of attempting to ascertain employees' desires, and the fact that Price had been utilizing Glauber and Hungate in that campaign since shortly after receipt of the Union's letter, I find that Price's questioning of Glauber and Hungate vio- lated the Act. Finally, in May, Weller tendered her resignation. It is undisputed that, in response to Johnson's questioning, Weller had explained that she was quitting because of ex- cessive work occasioned by Respondent's failure to realign customers to equalize the routes. Johnson had replied "that she couldn't touch it because the union, until everything was taken care of with them." It is, of course, axiomatic, that in the context of an antiunion campaign marked by unlawful conduct, it is an unfair labor practice to tell em- ployees that changes in working conditions are being defer- red because of the existence of a union organizing cam- paign. See Montana Lumber Sales, Inc. (Delaney & Sons Division), 185 NLRB 46, 47 (1970). Particularly is this so where, as here, the failure to make such changes has result- ed in a detrimental effect upon the employees, for the es- sence of Johnson's message was to disparage the Union "in the eyes of the employees so as to discourage membership in the union." Dynatronics, an Operation of the Electronics Division of the General Dynamics Corporation, 186 NLRB 978, 979 (1970); H. L. Meyer Company, Inc., 177 NLRB 565, 566, fn. 2 (1969), enfd. as modified on other grounds, 462 F.2d 1090 (C.A. 8, 1970). Moreover, "[T]he message conveyed to [Weller] was clear-to obtain their . . . [rea- ligned routes the RSRs] first would have to abandon the Union." General Motors Acceptance Corporation, 196 NLRB 137 (1972), enfd. 476 F.2d 850 (C.A. 1, 1973). Therefore, I find that by these postmeeting comments to employees Respondent did violate Section 8(a)(1) of the Act. I. The Bargaining Order Remedy I. The effect of Respondent's unfair labor practices Above I have found that Respondent's campaign against the Union included coercive interrogations of employees, threats of more onerous working conditions should the RSRs become unionized, encouragement of surveillance of RSRs' union activities, solicitations of revocations of au- thorization cards and support for the Union, and the un- lawful, precipitous discharge of Wade during the cam- paign, as well as the discharge of Morgan prior to commencement of the campaign."7 At the very least, 57 The comments during some of Hetherington's individual meetings with the RSRs whom he supervised show that Morgan's termination had not been forgotten by January. Wade's termination would support issuance of a remedial bargaining order, for the precipitous nature of that dis- charge must have brought it to the other RSRs' attention, thereby having "a far-reaching effect, the meaning of which could not have been lost on them: support the Union and lose your job." Hambre Hombre Enterprises, Inc., d/b/a Panchito's, 228 NLRB 136, 137 (1977). It is true that most of the General Counsel's witnesses had been union supporters, and consequently were com- mitted to the Union at the time that Respondent com- menced its unfair labor practices. However, the subjective feelings of the RSRs are not relevant, inasmuch as "the test for making a determination as to whether a bargaining or- der is warranted is an objective test." Broadmoor Lumber Company, 227 NLRB 1123, 1137, fn. 16 (1977) and cases cited therein. Indeed, RSRs, other than those called as wit- nesses by the General Counsel, had admittedly been the object of Respondent's conduct and, further, as discussed infra, Respondent's conduct did have an adverse effect on some of the RSRs, leading them to reverse their prior sup- port for the Union. In any event, the Board made plain its position respecting the issuance of bargaining orders predi- cated upon unfair labor practices directed to union adher- ents in Motel 6, Inc., 207 NLRB 473 (1973): . . . the effect of actions taken against such employ- ees-particularly the outright discharge of one of them-is pervasive in its effect as it simultaneously restrains (or eliminates) the organizational activity of those already committed to the Union, while warning others that dire consequences may attach to them if they come to the Union's support. Therefore, I find "that the gravity of Respondent's un- lawful conduct, which touched most if not all the employ- ees, cannot be dispelled by [the] usual remedy for such offenses so as to render likely a reliable election reflecting the free choice of Respondent's employees." Panchito's su- pra at 137. This then leads to consideration of the appropri- ateness of the unit and of the representative status of the Union. 2. The appropriate unit As must be apparent from what has been written above, Respondent is a nationwide operation, headquartered in Winston-Salem, North Carolina, with a centralized data processing center in Atlanta, Georgia. Of approximately 3500 employees which it employs, approximately 650 are RSRs who service boutiques throughout the country. Ad- ministratively, the RSRs fall within Respondent's sales and distribution operation, headed in Winston-Salem by Engle and, under him, by Vice President of Sales and Distribu- tion William Caldwell. Reporting to Caldwell are the man- agers for each of the five regions into which the United States has been divided, geographically, for sales and dis- tribution purposes: The Northeast Region, the Mid-Atlan- tic to Ohio Region, the Greater Southeast and Southwest Region, the Midwest Region, and the Western Region. Each of these regions has been further subdivided into dis- 412 L'EGGS PRODUCTS INCORPORATED tricts. For example, the headquarters for the Western Re- gion, covering the Rocky Mountain and West Coast States, is located in Buena Park and has been divided into four districts: Seattle, San Francisco. Denver, and Southern California or Buena Park. In turn, each district is further subdivided into either branches or areas (the sole differ- ence is one of nomenclature, for there is no substantive difference between a branch and an area). For example, the Denver District is subdivided into the Phoenix, Denver, and Salt Lake City branches. The Southern California or Buena Park District has been subdivided into four areas: San Diego, the San Fernando Valley (which includes the northern portion of southern California, encompassing such cities as Ventura, Santa Barbara, San Luis Obispo, and Bakersfield) and two areas whose area managers oper- ate out of the Buena Park facility (one of which extends to Las Vegas, Nevada). While there is no dispute regarding the composition of the unit (Respondent agrees that a unit confined to em- ployees classified as RSRs would be appropriate), Respon- dent disputes the contention of the Union and the General Counsel that a districtwide unit is appropriate, arguing that insufficient authority lies at the district level, with regard to the RSRs, to render such a unit appropriate, although Re- spondent does concede that either an areawide or region- wide unit would be appropriate. In analyzing Respondent's argument, one, by now axio- matic, proposition must be borne in mind: "There is noth- ing in the statute which requires that the unit for bargain- ing be the only appropriate unit, or the ultimate unit, or the most appropriate unit: the Act requires only that the unit be 'appropriate'." Morand Brothers Beverage Co.. er al.. 91 NLRB 409, 418 (1950). Accordingly. it is profitless to urge. as Respondent appears to do, that the districtwide unit would not be appropriate because greater power rests at the regional level or because a greater degree of day-to-day control is exercised over the activities of RSRs at the area- wide level. For, "it is well settled that there may be more than one way in which employees of a given employer may appropriately be grouped for purposes of collective bar- gaining." Metropolitan Life Insurance Companr, (Woonsock- et, R. 1.), 156 NLRB 1408, 1412 (1966). Consequently, "even assuming that the unit[s] urged by [Respondent] . . . here may be the most appropriate unit, this does not estab- lish it as the only appropriate one." Dixie Belle Mills. Inc.. 139 NLRB 629, 631 (1962). Rather, in determining whether a districtwide unit is appropriate, analysis must be directed "to such factors as the community of interest among the employees sought to be represented; whether they com- prise a homogeneous, identifiable, and distinct group: whether they are interchanged with other employees; the extent of common supervision; the previous history of bar- gaining; and the geographic proximity of various parts of the employer's operation." Metropolitan Life Insurance Company, supra. The Buena Park or Southern California District is head- ed by District Manager Hardy. With respect to his rela- tionship to the RSRs, Respondent portrayed Hardy as pos- sessing virtually no authority in the chain of supervision over the RSRs. While acknowledging that the area manag- ers reported to Hardy, Radcliffe testified that "in that situ- ation he serves more as a liaison to the region manager for seeing to it that his instructions from the region manager get down to the area manager." According to Radcliffe, Hardy's main responsibility is representing Respondent in contacts with customers, particularly major accounts, and with supervising the district warehousing operations. Simi- larly, Hardy portrayed his duties as being principally ori- ented toward sales and administration: "I'm primarily in- volved in the sales management and the sales end of the operation, along with other operational, administrative functions. Primarily, I deal with the major accounts, sales accounts, the major chain accounts in the Southern Cali- fornia area." Notwithstanding this lack of authority, direct or indirect, over the RSRs attributed to Hardy, a number of factors tend to demonstrate that as part of his administrative du- ties Hardy plays a more active role in their supervision than Respondent's witnesses were willing to disclose. For example, while true that area managers do initiate person- nel actions and do exercise day-to-day supervision over RSRs, it is equally true that each area manager files a weekly activity report with Hardy which, as Smith's reports evidence, details the conduct of the area manager's super- vision of his or her RSRs. Were Hardy not exercising su- pervision in this area, one wonders what purpose such re- ports could serve. Surely Respondent was not simply requiring area managers to indulge in a theoretical exercise designed to test their ability to describe the manner in which they supervise RSRs. While area managers initiate hiring and firing decisions pertaining to RSRs, Hardy ultimately conceded, after the spectre of his pretrial affidavit was raised, that, normally, area managers discuss pending terminations with him and that only in instances of grave misconduct had this not occurred. 58 In fact, both Hetherington and Smith placed Hard), as being a central figure in the events that purport- edly led to the decisions to terminate Morgan and Wade. Although I have found that Respondent's reasons for the terminations of these two RSRs are pretextual, and there- fore abnormal to that extent, the quite natural injection of Hardy into the deliberations which assertedly had led to the decisions to effect these discharges demonstrates that his authority and participation in the area of discharging RSRs has been greater than that of a mere cipher. Similarly, while area managers perform most of the actu- al work involved in soliciting, interviewing and selecting RSRs for hire, once an applicant is selected, the area man- ager completes an Employee Status Notice, which must be signed by Hardy before submission to Winston-Salem. Hardy portrayed his role as being no more than that of a transmitting conduit in this regard. But, the fact remains that the portion of the notice which he signs states clearly "Approvals." Consequently, the fact that he may never ' Hardi specified approximately three or four such instances of termina- tion for "grave misconduct" as taking place while he had been district man- ager. SignificantlN,. after Hardy's testimony in this regard. Respondent pro- duced a lisi of I_ RSRs who had been terminated in the district during the period that ilards had been district manager The reasons for each termina- tloll ppeared opposite the name of the RSR who had been discharged. Not one of these reasons could be construed as "grave misconduct" of the Itpe that would necessitate an immediate discharge. 413 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have rejected an RSR tentatively hired by an area manager would appear to reflect more the care which the area man- agers displayed in choosing qualified persons than a lack of authority on the part of Hardy. Certainly, there was no doubt that Hardy admittedly possessed authority over the area managers in other areas. For example, he is responsible for insuring that area man- agers monitor their RSRs in a uniform manner "I revievw all route supervision reports, and I make sure that the same weight is given each criteria in each area." Similarly, while RSR training is carried out by area and region trainers, Hardy acknowledged that when the region trainer sched- ules a seminar, he is responsible for being certain both that notice of that fact is received by the area managers and of insuring that coverage is provided for the routes of RSRs who attend such seminars: [The region trainer] normally notifies the area manag- ers, and I in turn just make sure that they are notified and everybody is aware that there is a training semi- nar or training session scheduled so that we can make arrangements to have coverage on the routes when the girls are being trained. Schwaegler conceded that when problems had arisen in the San Fernando Valley in December 1975, it had been Hardy to whom he had delegated the task of investigating and attempting to correct the situation. Indeed. Hardy's participation in this problem was contemplated by Re- spondent's internal grievance procedure which provides that should an RSR be unable to resolve a problem with her area manager, she can then go td the district manager to attempt to obtain satisfaction. Only if she is unable to resolve her difficulty at this level is the RSR then able to appeal to the region manager. Yet if the district manager were not conversant and involved with employee relations and the operations of the RSRs, how could he make an intelligent contribution to this process? In the final analysis, it appeared to me that Respon- dent's witnesses were dissembling on this point. The West- ern Region serves a significant geographic area, from the State of Washington south to the Mexican border and from at least Colorado and Arizona in the East to the Pa- cific Ocean. It encompasses over 10 branches and areas, grouped into four districts. Schwaegler spends a substantial majority of his time away from the Buena Park office. Ac- cordingly, it would be impossible for him to exercise the degree of control over the area managers' supervision of RSRs that Respondent's operations contemplate. While the district manager does perform sales functions, this is not inconsistent with indirect supervision of the RSRs who, after all, are employed in a sales capacity. Moreover, the fact that he does not exercise the greatest possible amount of supervisory authority does not serve to negate that which he does exercise. Therefore, I find that the district manager does participate directly in the chain of supervi- sion of RSRs and that the RSRs in the Southern California District share common intermediate supervision. Respondent further argues that most of its policies are established at Winston-Salem and are uniform for all RSRs throughout the United States. Moreover, most of the paperwork generated by the RSRs is either transmitted to Winston-Salem or to Respondent's data processing center in Atlanta. In either event, it is clear that Respondent's recordkeeping and administrative functions for all RSRs are performed in central locations, far removed from the district offices. Yet it is not uncommon for the Board to conclude that a less than employerwide unit is appropriate, notwithstanding a highly centralized administrative struc- ture. Indeed, retail operations normally are marked by a high degree of centralized administration. However, this factor "does not necessarily [mandate] that organization of only a portion of the chain would likely result in a lack of uniformity of working conditions through the chain or, if it would, that this necessitates rejecting a unit [less than em- ployerwide in scope]." Haag Drug Company, Incorporated, 169 NLRB 877, 878 (1968). Indeed, it is clear that in the instant case Schwaegler had obtained exceptions for such matters as holidays and base wage rates, confined to local- ized geographic areas where a unique situation has dictated the need for such exceptions. In light of this concession, Respondent can hardly contend that there is an absolute need for uniformity throughout the country. The four areas encompassed by Hardy's district are geo- graphically distinct. The nearest districts are the ones in Hayward, California (across the Bay from San Francisco, California) and Denver, Colorado. The closest areas, or branches, are the ones in San Francisco, and in Phoenix, Arizona. "The Board has long recognized that geographic coherence of a bargaining unit is an important consider- ation in determining whether a bargaining unit is appropn- ate and workable for purposes of bargaining." Central Power & Light Company, 195 NLRB 743, 746 (1972). Ac- cord: Metropolitan Life Insurance Company, supra, 156 NLRB at 1415. In the instant case there has been no evi- dence of interchange between the Buena Park or Southern California District and other districts that could be con- strued as being "so significant as to render inappropriate the proposed districtwide unit." The Lawson Milk Company Division, Consolidated Foods Corporation, 213 NLRB 360, 362 (1974). In fact, it would appear, based upon the cir- cumstances under which Morgan and Pierce were hired, that RSRs from other districts and regions cannot be trans- ferred directly to the Southern California District without undergoing the same application process and being sub- jected to the same considerations as would occur with any applicant who applied for employment with Respondent. The same warehouse services all RSRs in the four areas in Hardy's district. Until some point in January, all RSRs in that district had to resort to the same petty cash fund, maintained by Batty, for their expenses. Indeed, as demon- strated by the payment of Hungate's expense account in January, Batty's petty cash fund remains as a reserve for all RSRs in the district whenever their area managers are not available to reimburse them. Conversely, there is no evidence that RSRs in areas or branches outside Hardy's district resort to Batty's petty cash fund. Hetherington, Johnson, Manning, and Smith have conducted periodic meetings regarding operations and there has been no show- ing that area managers from any other districts have ever participated in such districtwide area managers' meetings. Though contests may be conducted at the regional and area levels, there are also contests which are conducted at 414 L'EGGS PRODUCTS INCORPORATED the district level. Moreover, as illustrated by the audit con- ducted in October 1975, when Morgan received such poor grades for boutique cleanliness, the branch audits appear to be conducted on a districtwide level, encompassing all operations within the district. Finally, "operations are not so functionally integrated that a cessation of work in one (division] would cause a systemwide shutdown of operations." Southern California Water Company, 228 NLRB 1296, 1297 (1977). That the Union seeks to represent the employees in a districtwide unit, moreover, is a valid factor to consider in appraising the appropriateness of the unit. N.L.R.B. v. Metropolitan Life Insurance Co., 380 U.S. 438 (1965). Indeed. "the large distance between the furthermost districts would make or- ganization and bargaining at the [systemwide] level diffi- cult." Southern California Water Companufy. supra at 1297. Therefore, geographic proximity and concentration, Re- spondent's organizational structure, common effective in- termediate supervision, the absence of any significant de- gree of interchange with employees in other districts, the common conditions of employment of RSRs within the district, the absence of any bargaining history, and the fact that the Union seeks to represent the RSRs at a district- wide level, all demonstrate that a districtwide unit is suffi- ciently identifiable and homogeneous to constitute an ap- propriate unit. See White Cross Discount Centers. Inc.. 199 NLRB 721, 722 (1972). 3. The Union's representative status The parties stipulated that for the payroll period ending January 31, there had been 39 RSRs in the districtwide unit found appropriate above. As I have concluded that Wade's termination was unlawful, she too is included, bringing the total RSR complement to 40. To establish the Union's representative status, the General Counsel pro- duced 23 authorization cards signed by RSRs. Although Respondent initially challenged the authenticity of several of these cards, this issue fell by the wayside as a succession of RSRs took the stand, each testifying that the signature on the card shown her was in fact her own signature. How- ever, in its brief Respondent argues that six of these cards-those signed by Pizzino. Nuro, Weber, Michaels. Getchel, and Davis-should not be counted, due to infirm- ities arising from the circumstances under which they were signed. Accordingly, urges Respondent, "the Union has only sixteen valid cards, and therefore cannot be accorded a bargaining-order remedy." In examining this contention, one distinction should be borne in mind: That which exists between the Union's statement of its proposed course of action to become the employee's bargaining representative and that which as- sures a card signer that there will be another choice afford- ed before the Union becomes the bargaining agent. Absent an employer's agreement to determine the majority status through private means or an employer's commission of un- fair labor practices, an election is currently the only method by which employees can obtain representation. See: Linden Lumber Division, Summer & Co. v. N.L. R. B. 419 U.S. 301 (1974); Broadmoor Lumber Compan', 227 NLRB 1123, 1131 (1977). Resort to the Board's election process is the normal method bv which unions attain repre- sentative status. "Elections have been, after all, and will continue to be, held in the vast majority of cases .... " N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 607. (1969). Accordingly, the mere fact that a union agent states that the card, if signed, will be used to secure an election is not to be automatically construed as being a representation of the purpose for signing the card. Rather. such a state- ment is consistent with the normal procedure that the Union can expect to have to follow to obtain representa- tive status as the employees' bargaining agent. "There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election." Gissel, supra, 395 U.S. at 606-607. Conse- quently. in analyzing the statements attributed to solicitors by at least three of these witnesses, attention must focus on the question of whether the solicitors were merely describ- ing the procedure to be followed in attempting to attain the status of bargaining representative of the RSRs. or, alter- natively, were assuring the RSRs that there would ulti- mately be an opportunity for them to exercise a choice as to whether or not they desired representation, with the sig- nature on the card being no more than a mechanism whereby the Union can petition the Board to provide such a choice. The most specious of Respondent's contentions chal- lenging the validity of the authorization cards was that per- taining to the card signed by Pizzino, who testified that she had been under the impression that if she signed, it would get her more information. She based that "impression," she testified, on the fact that at the meeting which she had attended, the cards had been distributed with the comment that "if you are interested you may sign the card." Pizzino testified that nothing further had been explained to her during the meeting and, that there had been no mention of card checks nor of elections. The card which she signed, as was true of the cards signed by the other RSRs. stated in part: Desiring to enjoy the rights and benefits of collective bargaining. 1, the undersigned, employee of [Compan) Namel at [Store Addressl [(Cityl hereby authorize Re- tail Clerks Union Local 770 to represent me for pur- poses of collective bargaining, respecting rates of pay, wages, hours of employment. or other conditions of employment. Asked if she had not read this legend prior to signing the card. Pizzino equivocated. testifying ultimately: "I glanced over it. I didn't, you know, read it fully. But I guess you could say I read it." Pizzino's opposition to the Union was evident from her letter. described infra, withdrawing her support from the Union. Her testimony concerning her telephone conversation with Glauber, though favorable to Respondent's position, was at odds with the evidence cor- roborating her assertion that she had been the one to call Glauber rather than the converse. Accordingly. Pizzino's testimony regarding the circumstances under which she had signed the card must be viewed with suspicion. In any event, the card clearly sets forth a valid represen- tative purpose. That Pizzino may not have been advised of 415 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD the procedure that the Union might follow in obtaining representation is of no moment. A union is not obliged to amplify and expand upon the purpose of a card which sets forth clearly the employee's authorization for the Union to act as its representative. "We cannot agree with the em- ployers here that employees as a rule are too unsophisti- cated to be bound by what they sign unless expressly told that their act of signing represents something else." Gissel, supra, 395 U.S. at 607. Nuro testified that she had been told that the signing of the card would afford her the right to vote and the oppor- tunity to be exposed to more information concerning the Union. According to Nuro, prior to signing she had in- quired if doing so "would commit me to anything, did it make me liable for anything .... ," and had been assured that it would not. Based upon this testimony, Respondent argues that Nuro had been told that she would need to sign the card in order to get further information about the Union and, secondly, that she had been assured that she was not committed to anything by virtue of having signed the card. As a general proposition, it should be noted that Nuro subsequently revoked her signature, as discussed in- fra, and apparently adopted a strongly antiunion stand, as illustrated by the fact that she had been the RSR to lead the charge in speaking against the Union following Engle's speech of February 5. With regard to Respondent's contention that Nuro had been promised more information if she would sign a card, careful examination of the statement made to her does not disclose that the words convey that meaning. Rather, par- allel to statements regarding elections following the signing of cards, Nuro had been told simply that if she signed the card, she would then receive more information from the Union. Neither the words themselves nor the context in which Nuro recited their having been stated discloses that Union Representative Lee conditioned providing Nuro with further information upon execution of an authoriza- tion card. Obviously the Union did not intend to provide information to those who did not support it. Thus, Lee's statement appears to be no more than a recitation of the simple fact that union supporters, as identified by their signatures on authorization cards, would in the course of events receive further information from the Union. Throughout, Nuro contended that the Union had not provided her with sufficient information and portrayed herself as being a lost soul in the wilderness regarding the organizing campaign. Yet, when she testified, Nuro an- swered questions clearly and concisely. Like Smith, she ap- peared to be a very precise person who would not under- take any conduct without understanding clearly the import of what she was doing. Consequently, it hardly seems prob- able that she would read the above-quoted legend on the card, as she testified to doing, and then sign it without understanding fully the implications of her signature. Fur- thermore, at no point did she testify precisely as to what information she felt to be lacking and as to what informa- tion she sought in order to be able to make up her mind regarding whether or not to support the Union. To the contrary, prior to even meeting with the union officials she had spoken both with Schmidt and with Karen Dill, and her conversation with Dill had involved a thorough discus- sion of Dill's prior experiences as a member of the Union while working at Lucky Markets. In these circumstances, Nuro's generalized plaint about a deficiency of informa- tion concerning the Union appeared to me to be motivated more by her desire to exculpate herself in Respondent's eyes for having signed a card than to be a true reflection of her situation at the time of the events surrounding her sign- ing of the card. A somewhat different analysis attaches to Nuro's ques- tion about whether the signing of the card "would commit me to anything, did it make me liable for anything." It is of course true that telling an employee that the signing of a card imposes no obligation may serve as an element in in- validating that card. See Silver Fleet, Inc. d/bha Silver Fleet Motor Express, Security Terminals. 174 NLRB 873 (1969); Eckerd's Market, Inc., 183 NLRB 337, 338 (1970). Yet, of itself, such a statement is not sufficient to invalidate the card. Fort Smith Outerwear, Inc., and H.L. Friedlen Compa- nyv, 205 NLRB 592, 593, fn. 2 (1973), enfd. as modified on other grounds 499 F.2d 223 (C.A. 8, 1974). The rationale underlying this conclusion is that, of itself, the signing of a card does not obligate an employee, such as Nuro, to a number of things-such as joining the Union, paying union dues, voting for the Union if an election were con- ducted, attending union meetings. Wallace Metal Products, Inc., 199 NLRB 819, 829 (1972). For example, the perni- cious facet to the Union's representation in Eckerd's Mar- ket was that the disclaimer-of-obligation comment had been coupled with comments to the effect that signing the cards was only an expression of interest in learning more about the Union and would not have the effect of incurring any membership or other obligation to the Union. Consequently, even assuming that Nuro's version of the comments made to her was credited, the absence of any comments combined with the disclaimer of obligation pre- cludes a finding that the disclaimer alone warrants invali- dation of the card which she signed. An additional factor in this regard is the wording of Nuro's question, which led to the remark made to her. Her question appears to have been directed to whether she would incur monetary obliga- tions, i.e., "make me liable," if she signed the card. Appar- ently the Union was sensitive to potential employee con- cern as to whether their signatures on these authorization cards would constitute applications for union membership, with its incident financial obligations, for at the bottom of the form appears the wording "this form is not an applica- tion for Union Membership." Viewed in this light, the an- swer to her question was simply a true statement of the effect of signing of the card, given in response to her ex- pression of concern about the matter. It certainly cannot be concluded that it had been designed to mislead Nuro. Janice Weber, who attended the same meeting as Nuro, testified that she had thought that it was mandatory that an election be held and that there had been no mention during that meeting of not having an election. Her testimony in this respect tends to be disputed by Nuro, who, when ques- tioned about the matter, testified that she had not come away from the meeting with the feeling that an election was the only means by which the Union could secure represen- tation. Indeed, Weber's recollection of this meeting did ap- pear vague, for she conceded that one of the union agents 416 L'EGGS PRODUCTS INCORPORATED had mentioned a "card check" and that "verification" had been mentioned, although she did not recall how the sub- ject had arisen. Accordingly, it does appear that represen- tation without an election had been discussed. As had been true with O'Malley in attempting to reconstruct her No- vember 1975 discussion with Hetherington, Weber ap- peared to be attempting to reconstruct the comments made to her during this meeting on the basis of what appeared to be reasonable to her. Thus, she testified that she assumed, from the fact that the union agent said that a majority of the employees had to sign the cards before the Union would take the trouble to seek an election, that it would be mandatory to have the signatures verified to see if they were authentic and, further, that verification, to her, ap- peared to be a part of the election process. Finally, that she was confusing the purpose for signing the card with the anticipated procedure that the Union intended to follow in attempting to become the RSRs' bargaining representative was shown by the fact that she conceded that she had been told that the purpose of the card was to represent the RSRs. Like Weber, Michaels testified that it had been her feel- ing that the cards would serve the purpose of bringing about an election, and that an election had to be conduct- ed in order for the RSRs to obtain representations Any adverse inference which could be drawn from this testi- mony was quickly nullified by Michaels' acknowledgement that "it was explained to me that the cards would represent a majority of the workers out of Buena Park to be given to the Union to be presented to the company to show the company that we wished to be represented by Retail Clerks Union for collective bargaining." Indeed, in explaining what had been told her about the card prior to signing it, Michaels omitted any reference to an election. Only when the subject was suggested to her on cross-examination did she recall that it had been mentioned. Accordingly, while the subject of an election had been mentioned during the explanation of the card, her testimony would tend to indi- cate that statements regarding the election did not consti- tute a part of that explanation of the purpose for signing the authorization card. The fifth employee whose card Respondent contends was invalidated by statements of solicitors was Diane Get- chel, who testified that when Washington and Rehmann had come to her home to solicit her signature, she had read the card and had then asked what would happen to the cards. In response, testified Getchel, either Rehmann or Washington said that the purpose of the cards was to find out how many RSRs were interested in the Union. She testified that when she then inquired what she was author- izing the Union to do, she had been told in response that her signature was to find out how many people were inter- ested in the Union. As she signed the card, she told both Rehmann and Washington that she was doing so because she was interested in finding out if the RSRs could better 9 Of course. both in Michaels' and Weber' ..sres. it i.s w rth nrotin that their testimony appears to he based upon their subjectise understanding of what the? had been told prior to signing their cards a mater which is irreles vant "as involving an endless Ind unreliable Inquir ' (;pi, l. ipra. 395 .S. at 608. themselves through a union and that, in response, the two RSRs said that the first thing that needed to be done was to submit the signatures to Respondent to let them know that the RSRs were definitely interested in the Union. Washington, however, testified that when she had been at Getchel's house she had given her standard explanation concerning the purpose of the card check and had pointed out that if a majority of the RSRs signed the cards, a card check could lead to bargaining with the Union. Although she conceded that she was not altogether clear on this pro- cedure. she remained firm in her testimony that she had recited the procedural steps to each RSR. In Gissel, the Supreme Court makes the observation that "employees are more likely than not, many months after a card drive and in response to questions by company coun- sel, to give testimony damaging to the Union, particularly where company officials have previously threatened repri- sals for union activity in violation of Section 8(a)(l)." Gis- selt supra, 395 U.S. at 608. In my opinion, this pattern could not more clearly have been illustrated than it was in the cases of both Michaels and Getchel. Both had previ- ously revoked their authorization cards, as described be- low. in response to unlawful pressures brought to bear upon them as a result of Respondent's unfair labor prac- tices. Respondent had embarked upon a campaign in op- position to the Union that had been characterized by a number of severe unfair labor practices. Neither Getchel nor Michaels appeared to be particularly strong-willed in- dividuals: certainly not as strong-willed as were Quigley and Washington. Not only had Getchel been spoken to by her area manager, but in fact that area manager was Smith, who had been instrumental in effecting the termination of Wade. Therefore I find that Getchel did not make clear to Washington and Rehmann that she was signing the card solely because of her interest in what the Union could do for her and, moreover, I find that neither Washington nor Rehmann made statements to Getchel which would ex- pressly or by implication constitute statements that the signing of the card was only to demonstrate whether there was sufficient interest in unionization among the RSRs. In this regard, I note particularly that Getchel also testified that before coming to Santa Barbara to speak with her, Washington had telephoned, had stated that there were some RSRs who were interested in joining the Union and had asked if Getchel were interested in doing so. Getchel testified that she had replied that she was interested in the Union and had invited Washington to come to Santa Bar- bara. In these circumstances I find it highly unlikely that I day later Getchel would express concern regarding the rea- son for signing an authorization card, and Washington's and Rehmann's purposes in bringing the card to her. Moreover. in light of Washington's telephone remarks, any subsequent reference to "interest" clearly referred to the decision to be represented. For the foregoing reasons, I find that the evidence is not sufficient to support Respondent's assertions that state- ments were made to Pizzino, Nuro, Weber, Michaels, and Getchel that would invalidate the plain purpose stated on the cards which the)' signed. This, of course, leaves the General Counsel with 22 valid authorization cards in a unit 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of 40 RSRs. Unresolved is the effect of the statements which Nancy Schmidt made to Shirley Sautters prior to the latter's execution of an authorization card. Although it is not necessary to resolve this matter, in light of the fact that even without counting Sautters' card, the Union represents a majority of the employees, for purposes of completeness the validity of that card should be resolved. Sautters signed the card after statements made, she thought, primarily by Schmidt during a telephone conver- sation. During that conversation, according to Sautters, Schmidt had mentioned that the RSRs were attempting to obtain representation and that a certain percentage of the RSR complement had to sign authorization cards in order to obtain an election. Sautters further testified that she then had signed the card, when tendered to her by Gaines, because she felt that it would lead to an opportunity for the RSRs to vote as they desired. Schmidt did not deny the statements attributed to her by Sautters. Moreover, it was evident when Schmidt testified that her confusion as to the procedure by which the Union would attempt to secure bargaining agent status had led her to fail to appreciate the distinction between the purpose for signing the card and the procedures which would be followed in securing repre- sentation based upon the signed cards. Thus, at one point she testified that she had repeatedly told persons that the cards were "just to see if there could be an election." Al- though Schmidt's comments do not appear to have tainted the card signed by any other RSR, her concession in this area, taken in conjunction with Sautters' recitation of what Schmidt had said to her during their telephone conversa- tion, leads to the inescapable conclusion that Schmidt did tell Sautters that the purpose for signing the card was pure- ly and solely to obtain an election at which the RSRs could exercise their choice to select or reject representation. In these circumstances, I find that a preponderance of the evidence does support the conclusion that the statements made to Sautters prior to signing the card nullified the clearly stated purpose printed on the card. Seven RSRs ultimately transmitted revocation letters to the Union-Michaels, Nuro, Getchel, Pierce, Hughes, Braase, and Pizzino. Respondent argues that their cards should be deducted from the signed authorization cards which the Union possessed. However, it is significant that not one of these revocations was dated prior to commence- ment of Respondent's unfair labor practices designed to reduce the support for the Union among the RSRs. Moreover, it was clear that these revocations were the direct product of those unfair labor practices. Thus, Nuro conceded that it had been as a result of Hungate's call, suggesting revocation, that she had revoked her signature and further, that she had telephoned Johnson to report the fact that she had prepared a letter of revocation. Similarly, Braase testified that she had prepared her letter of revoca- tion after receiving a telephone call from Hungate "asking me to revoke the original signing of the card and to send a letter following up that card revoking my commitment as far as my signature." Michaels testified that her dissatisfac- tion with the Union had arisen as a result of unsatisfactory answers given by the Union's agents at a meeting on Janu- ary 24. Yet, her letter of revocation was not prepared until January 28-1 day after her meeting with Hetherington in which he had suggested sending such a letter. In turn, Pierce testified that she had prepared and transmitted her letter of revocation at Michaels' urging. In this regard, it is noteworthy that, as illustrated by his conversation with Quigley, Hetherington had been attempting to enlist an RSR to take a "step back" as a means of persuading other RSRs to cease supporting the Union or at least not to sup- port it in the future. Hughes, as detailed above, revoked her signature after having been interrogated by Manning-a conversation which Hughes made efforts to relate in a manner that would protect Manning's interests. As detailed above, Respondent's efforts to secure revo- cations of RSRs' written support for the Union took sev- eral forms. Some were successful. All were unlawful. In these circumstances and in view of the pervasive unfair labor practices in which Respondent engaged to under- mine the Union's attempts to organize the RSRs, I find that no weight can be accorded any revocation or expres- sion of revocation, including those of the seven RSRs listed above, which were reduced to writing following com- mencement of Respondent's unlawful campaign. 4. The Union's interference with Jenni Pizzino This portion of the case is based upon Respondent's contention that the Union engaged in certain conduct on October 19 which, at the very least, should serve to bar issuance of a bargaining order on its behalf under the doc- trine of Herbert Bernstein, Alan Bernstein, Laura Bernstein, a co-partnership d/b/a Laura Modes Company, 144 NLRB 1592 (1963). It is undisputed that following her initial appearance as a witness in this matter, on September 9, Pizzino had been walking to the elevator when she had overheard Union Agent Diamond remarking to Union Agent Lee that she had lied when she had testified. Pizzino confronted the two agents, and comments were exchanged regarding their opinion of Pizzino's testimony, Pizzino's husband's mem- bership in the Teamsters Union, and certain comments made by Diamond to Smith, Pizzino's cousin. Pizzino then left and no more was heard of the matter for over a month. On October 19, Pizzino had been servicing a portion of her route which took her to Boy's Market No. 29 and Smith's Food King, both in Cudahy, California. It is undis- puted that the Union had never objected to Pizzino nor to any other RSR placing Respondent's products on the bou- tiques in retail markets (racking), even though the Union represents employees at some of these establishments. On this particular day, however, Diamond had arrived at Boy's to make one of his normal, periodic checks of that store's employee complement. Thus, he had been at that store when Pizzino had been servicing the boutique. Pizzino testified that when she had brought her product to the checkstand to have Store Manager James McKeever check her in, she had noticed McKeever speaking with Di- amond and that the latter had then approached her, engag- ing her in a casual conversation and then asking "Would you be too upset if I told you that you couldn't put your product up on the rack?" According to Pizzino, when she asked if there were anything she could do about it, Dia- mond had responded that there was not and McKeever 418 L'EGGS PRODUCTS INCORPORATED then joined them, counting her product and instructing her to take it to Annie, General Merchandise Department Head, in the back who would place it on the rack. Pizzino testified that during the time that she had been speaking with Diamond, McKeever had been approximately 10 to 15 feet away, and had possibly overheard Diamond's re- marks. McKeever recalled the events of October 19, testifying initially that while reviewing the Boy's records, Diamond had observed Pizzino entering with her merchandise and had "just told me that she was not allowed to service the rack." At that point, testified McKeever, Pizzino had reached the place where he had been standing, and he had told her that he would check her in after which she could take her product to Annie, who would rack it. McKeever confirmed Pizzino's testimony that she had engaged in a conversation with Diamond but had heard only Diamond's comments to the effect that "somebody was on the witness stand, they didn't have time to wait, and litigation." Asked by counsel for Respondent if Diamond had said anything that day' about the Union attempting to organize Respon- dent, McKeever replied "no, sir." However, he was then confronted with his pretrial affidavit, wherein appears the statement: "After Jenni had taken the stock to the back of the store Rod said that the Retail Clerks were trying to organize L'eggs and that was the reason for the litigation. He offered no other explanation for his telling me not to let her stock the display." McKeever acknowledged the truth of the affidavit but when asked if he now recalled Dia- mond making those remarks, testified: "I don't know whether he was-whether it was just verbatim, but I know now I am not too sure but I think-at that time it was fresh- er in my memory than it is now." Pizzino next went to Smith's Food King, where she en- tered the store, cleaned and inventoried the boutique and then returned to her van, discovering that she had locked her keys inside. With the assistance of Food King person- nel, Pizzino finally succeeded in gaining entry. However. as she started to open the side doors she observed Diamond approaching from the store. She testified that when she had asked why Diamond 60 did not leave her alone, Diamond had replied that he thought that she would be glad to see him and, in response to Pizzino's query as to when he had arrived, said that he had been at the store since she had gone out to her van the first time, but had been afraid to come out as he thought she might blame him for causing her to be so upset that she would lock her keys in the van. According to Pizzino, Diamond had continued the con- versation by inquiring if she was going to Lucky's next and when she replied that she was not, he had told her, "Well, if I can't find out I will just have to drive up and down the boulevard until I see your van." It is undisputed that Pizzi- no had invited him to do so, saying that it was her last stop for the day' (though in fact it was not) and that Diamond had then asked why she had testified as she had when her husband was a Teamster. She in turn asked if he would promise that nothing would change were the Union to be- 60 At the time Pizzino had confused Diamond with Vic with the result that on this occasion she had referred to Diamond. during her conersaihn. aS I.ee. come the RSRs' representative, pointing out that she liked her job. Diamond said that he could not make such a promise, and then had inquired about the trial, pointing out that Johnson, Pizzino's supervisor, had made a good witness and that Respondent's counsel was intelligent and well educated, asking if it would not be better for Respon- dent to spend its money instead on the RSRs. As the con- versation progressed, testified Pizzino, Diamond had said, "let me ask you again why you testified the way you did?" In responding to this question, Pizzino became confused in her counting and, observing this, Diamond said, "I can see I am upsetting you and I will go back into the store. But first I am going to tell you not to put this product up in this store either." Pizzino inquired why Diamond did not let her do her job and he replied tha't he was doing his own job, after which he returned to the store. She testified that she then entered the store, where she observed Diamond conversing with Assistant Grocery Manager Spencer Whiteman. She walked up to Whiteman, asked if she could put the product on the rack, and when told by Whiteman that she could not do so, followed his instructions to put the merchandise in the backroom. Whiteman testified that Pizzino had spoken to him be- fore Diamond had arrived at the store, saying that she had locked her keys in the truck and that a union representative had been following her during the course of the day. Dia- mond then arrived while Pizzino was at her van and, testi- fied Whiteman, had introduced himself, asking if "the L'eggs girl was here," to which Whiteman responded affir- matively. Whiteman testified that Diamond had then asked if she would "be merchandising her product onto her dis- play ." When he replied that she would not be doing so, but would be taking it to the back, Diamond: said that if she was going to merchandise it that he wanted to catch her because that-apparently the way he implied it, it was somewhere along the line against the contract or something and that he did really want to catch her and nail her for this particular act that she was going to be performing in the store. Later, testified Whiteman, he had directed Pizzino to put her merchandise in the back and not to merchandise it on the boutique. He further testified that he had issued this instruction to Pizzino because "the only reason that I could figure that a union representative would be following any- one is if the) were merchandising something and not in the Union." On cross-examination, Whiteman was confronted with two portions of his pretrial affidavit, which recited a some- what different sequence in the events that day. At one por- tion the affidavit reads: "I told her to check the L'eggs display and see what she needed, write up an order and get the product from the van and bring it back for me to check, then put it in the back of the store for the nonfoods girl to put on the display." Whiteman testified that the latter portion. the direction to put the product in the back of the store for a Smith's employee to put on the display. had occurred later that day after he had spoken with Dia- mond. In another portion of the affidavit, it states "while she was in the back of the store a man came in and intro- duced himself as the representative of the Retail Clerks 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and I think he introduced himself as Bob Dia- mond." Notwithstanding this, Whiteman reaffirmed his testimony on direct examination that Pizzino had been out- side at her van at the time that Diamond had arrived, rath- er than in the back of the store. As found above, Pizzino was not a credible witness with regard to other matters in this case. However, her testi- mony describing the events of October 19 stands undisput- ed and, moreover, it is corroborated, where possible, by McKeever's and Whiteman's accounts of what transpired that day. Although the General Counsel in his brief points to discrepancies in the testimony of these two witnesses, such discrepancies as exist are relatively minor and colla- teral. Both witnesses did appear to be answering questions carefully. However, their concern appeared to stem not from a desire to aid Respondent but rather from a desire to avoid injuring the position of the Union with whom, after all, their own employers had collective-bargaining relation- ships. Indeed, a representative of their employers was pres- ent when they testified and he sat beside the Union's coun- sel, whispering companionably during the interrogation by Respondent's counsel of McKeever and Whiteman. Therefore, I credit the accounts of these two managers as to the statements made to them that day. Moreover, I credit Pizzino's uncontroverted testimony in this area. Bloom/Art Textiles, Inc., 225 NLRB 766, 769 (1976). Ac- cordingly, I make the following findings: that the Union was upset with Pizzino's testimony on September 9; that the Union had never interfered with the RSRs' normal pro- cedure of racking merchandise on the boutiques until Oc- tober 19; that it did not interfere with racking by any RSR, including Pizzino, thereafter; that the Union had been aware, prior to October 19, of the procedure followed by the RSRs in racking merchandise on the boutiques; that Diamond did approach the two store managers and inter- fere with Pizzino's normal racking procedures on October 19; and, that Diamond's conduct that day had been moti- vated by his dissatisfaction with the testimony that Pizzino had given on September 9. Whether or not the Union's conduct violated the Act is not at issue here." The sole question presented is whether a charging party-union or employer-loses its right to remedial relief, in this case a bargaining order, by retaliat- ing against employees whose testimony in the proceeding where that right to relief is being litigated does not satisfy the charging party. In advancing the argument for an affir- mative answer, Respondent places primary reliance upon the doctrine of Laura Modes, supra, and its progeny. In oppostion, the General Counsel points to the extensive vio- lence which had occurred in Laura Modes, arguing that this distinguishes the instant case where no violence had been directed to Pizzino by Diamond on October 19. Indeed, the Board has frequently relied upon the ab- sence of violence as a factor in declining to deprive a charging party, which engages in lesser misconduct, of remedial relief. Paramount General Hospital, Inc., 223 61 Charges alleging violations of Sec. 8(b)(I)(A) and Sec. 8(b)(4)(B) wcrc filed concerning Diamond's conduct. Although dismissed by the Reionall Director. Respondent appealed that dismissal and the charges are curientls pending dispostion of the General Counsel. NLRB 1017, 1018 (1967); Donelson Packing Co., Inc., et al., 220 NLRB 1043, 1063 (1975). In fact, even where violence or the threat of violence has been present, the Board has not declined to order remedial relief where there was a background of extensive unfair labor practices. Quintree Distributors, Inc., 198 NLRB 390, 405 (1972); World Car- pets of New York, Inc., 188 NLRB 122 (1971). The instant case, however, presents the novel factor that a Board proceeding was in progress to resolve the issues of whether Respondent had engaged in unfair labor practices and, if so, whether a remedial bargaining order should is- sue. Consequently, the Board's normal machinery was progressing toward resolution of the underlying dispute. With the exception of Johnson's May 6 comment to Wel- ler, the last of the allegedly unlawful acts had taken place approximately 6 months prior to commencement of the hearing. Consequently, Diamond's conduct was not simply action arising from the heat of the moment. Indeed, by October 19 over I month had passed since Pizzino had testified. But the most important point is the fact that it was the Union's dissatisfaction with the substance of her testimony which led Diamond to interfere with her work. In other words, he resorted to self-help where an employee's testimony turned out to be adverse to his cause in the very proceeding where the Union's right to remedial relief was being litigated. In doing so, Diamond was in- fringing upon the very processes designed to resolve dis- putes such as those arising from the charge brought by the Union in the instant case. For quite obvious reasons, the Board is most sensitive to interference, of even the slightest type, with its processes. "In order for the Board to fulfill its obligation to ade- quately administer the Act, it is necessary that its processes not be unjustifiably fettered by anything that precludes parties from participating in such processes free from coer- cion or restraint." Western Clinical Laboratory, Inc., 225 NLRB 725, 726 (1976). Accordingly, "an employer who puts an employee under fear of job reprisal if he fails to testify in accordance with the employer's version of the truth not only interferes with the integrity of the Board's processes but also restrains and coerces the employee in the exercise of his Section 7 rights." Guidance & Control Systems Division, Litton Systems, Inc., 217 NLRB 208 (1975). Similarly, unions also are proscribed from engaging in conduct which impedes or obstructs the Board pro- cesses. Tazewell Builders' Supplyv, Inc., et al., 196 NLRB 677, 681 (1972). The rationale underlying such holdings is based upon the central role which the Act occupies. "The National La- bor Relations Act is a comprehensive code passed by Con- gress to regulate labor relations in activities affecting inter- state and foreign commerce." Nash v. Florida Industrial Commission, et al., 389 U.S. 235, 238 (1967). In achieving this purpose, unfair labor practice hearings are instrumen- tal. "The Labor Relations Act contemplates submission of disputes as to labor practices of employers to reasoned and impartial determination after full and fair hearing." N. L. R. B. v. Indiana & Michigan Electric Co.. et al., 318 U.S. 9, 29 (1943). Consequently, as the Board is "dependent upon the initiative of individual persons who must . . . invoke its sanctions through filing an unfair labor practice 420 L'EGGS PRODUCTS INCORPORATED charge," Nash, supra, so also is it dependent upon the free- dom of employees to be able to testify without fear of coer- cion in order to make a "reasoned and impartial determi- nation after full and fair hearing." Indiana & Michigan Electric Company. supra. It is well settled that the Board ma, consider misconduct by a charging party "as material to its own decision to entertain and proceed upon the charge." Id., 318 U.S. at 18. Indeed, one circuit court has specifically referred to "acts affecting the processes of the Board itself" as the types of misconduct which warrant withholding remedial relief. N.L.R.B. v. Plumbers Union of Nassau County, Local 457, etc., [Bornat Plumbing & Heating], 299 F.2d 497, 501 (C.A. 2, 1962). Therefore, in view of the central role that the Act occupies in the regulation of labor disputes and the crucial role of hearings in implementing the purposes of the Act, it is overly simplistic to ignore retaliatory conduct directed to witnesses for failing to testify satisfactorily purely on the grounds that such conduct has stopped short of violence. Such conduct must be weighed in determining whether the Union is entitled to a bargaining order. Diamond's conduct was motivated by his dissatisfaction with the testimony given by Pizzino on September 9. More- over, his conduct had a clear impact upon the performance of her duties, thereby affecting her employment. Cf. Tri- County Tube, Inc., 194 NLRB 103 (1971). Yet the incidents of October 19 should not be judged in a vacuum. A bal- ance must be struck among the competing interests of Re- spondent. the Union, the employees and the public. bear- ing in mind that a "plague on both your houses" attitude may not serve the public interest. See Sheet Metal Workers' International Association. L.ocal Union No. 17(0. AFL.-(CIO (Able Sheet Metal Products, Inc.), 225 NLRB 1178. 1181 (1976) and cases cited therein. As found above. Respondent has engaged in substantial and pervasive unfair labor practices. Virtually no RSR es- caped the reach of this conduct. Although the Union had obtained the support of a majority of the RSRs. Respon- dent's unlawful conduct eroded that support. Diamond's conduct, while reprehensible, occurred on but a single day and was directed toward an employee w\ho, as found above, had not been truthful when she testified on Septem- ber 9. There is no evidence that the Union had planned a campaign of harassment against employees whose testi- mony was not favorable. To the contrary, there were a number of RSRs for example. Glauber. Nuro. Hughes- whose testimony was not helpful to the Union. They en- countered no problems. Rather, Dia.imond's actions on Oc- tober 19 appear to have been the product of a spur-of-the- moment decision made when his path crossed the separate one traversed by Pizzino at Boy's Market. Such conduct had never occurred previously. It was not to occur again. Moreover, Respondent is not bereft of a remedy for that misconduct. The charges which it filed regarding the inci- dents of October 19. while dismissed by the Regional Di- rector, are pending before the General Counsel. who will determine whether issuance of complaint is warranted. "[Sleveral circuit courts have insisted that in order for the Board properly to carry out its duties in enforcing the Act it is required to provide an appropriate remedy in all instances where it has determined that unfair labor prac- tices have been committed." St. Regis Paper Company, 192 NLRB 661, 662 (1971). In the circumstances presented, where there is a background of unfair labor practices, where the incidents of October 19 were not widespread and pervasive, and where it has not been shown that the Union is disinterested in enforcing representation rights through peaceful legal processes provided by the Act, I find that the events of October 19 are not a sufficient basis for depriving the Union of the bargaining order warranted to remedy Respondent's unfair labor practices. Ramona's Mexican Food Products, Inc., 203 NLRB 663, 685 (1973); Pacific Abrasive Supply Co., a subsidiary of the Carborundum Com- pan,. 182 NLRB 329. 331 (1970). To rely upon a single day's incidents to deprive the RSRs of their right to repre- sentation would do a disservice to their rights embodied in the Act and would not be consistent with the public poli- cies embodied in the Act. 5. Conclusions Therefore I find that a unit consisting of all RSRs in the Southern California or Buena Park District is appropriate and that the Union attained majority status prior to com- mencement of Respondent's unfair labor practices on Jan- uary 26. As these unfair labor practices were substantial and pervasive. I find that Respondent's bargaining obliga- tion arose as of January 26, the date upon which Respon- dent embarked upon its campaign of unfair labor practices. Hambre Ilombre Enterprises, supra, at 137. Consequently, Respondent's refusal to recognize and bargain with the Union in response to the latter's letter of January 27 consti- tuted a violation of Section 8(a)(5) of the Act. Drug Pack- age Companr., Inc., 228 NLRB 108 (1977); Beasley Energy, Inc.. d.h, a Peaker Run Coal Company, Ohio Division #1, 228 NL.RB 93 (1977). m I llH otFf:T Ot InI UlNFAIR LABOR PRACTICES UPON (O()MMER( E The activities of Respondent. set forth above, occurring in connection with Respondent's operations described in section 1. above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States, and tend to lead, and have led, to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CON(CI USIONS OF LAW I. L'eggs Products Incorporated is an employer within the meaning of Section 2(2) of the Act, engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union. Local 770, Retail Clerks Inter- national .-ssociation. AFI.-CIO. is a labor organization within the meaning of Section 2(5) of the Act. 3. Bs interrogating employees concerning their union sympathies and the union sympathies of their fellow em- ployees. by creating the impression of surveillance of em- ployees' union activities, by threatening employees with discharge. more onerous working conditions, loss of bene- 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fits and other reprisals for supporting the Union, by solicit- ing employees to revoke their authorization cards and to withdraw their support from the Union, and by soliciting, encouraging, and assisting employees to engage in surveil- lance of the union activities of other employees on behalf of Respondent, I find that Respondent violated Section 8(a)(I) of the Act. 4. By discharging and refusing to reinstate LuAnn Mor- gan and Jackie Wade Smith, Respondent violated Section 8(a)(3) and (l) of the Act. 5. A unit appropriate for collective bargaining is: All full-time and part-time route sales representatives employed in Respondent's Southern California Dis- trict located at 6800 Orangethorpe Avenue, Buena Park, California; excluding all office clerical employ- ees, confidential employees, professional employees, guards, watchmen and supervisors as defined in the Act. 6. At all times material since January 26, 1976, Retail Clerks Union, Local 770, Retail Clerks International Asso- ciation, AFL-CIO, has been the exclusive collective-bar- gaining representative of the employees in the above-de- scribed unit within the meaning of Section 9(a) of the Act. 7. By failing and refusing on and after January 27, 1976, to recognize and bargain with Retail Clerks Union, Local 770, Retail Clerks International Association, AFL-CIO, as the representative of the employees in the above-described unit, Respondent violated Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent did not violate the Act by terminating Beverly Bolt and Carol Manheimer, nor did it violate the Act in any manner other than specified above. THE REMEDY Having found that L'eggs Products Incorporated en- gaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. L'eggs Products Incorporated will be required to offer LuAnn Morgan and Jackie Wade Smith immediate rein- statement to their former positions of employment or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, dismissing. if necessary, anyone who may have been assigned or hired to perform the work which Morgan had been performing prior to her termination on November 20, 1975, and which Wade had been performing prior to her termination on January 26, 1976. Additionally, Respondent will be required to make Morgan and Wade whole for any loss of earnings they may have suffered by reason of their unlawful terminations, with backpay to be computed on a quarterly basis, making deductions for in- terim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 62 The Respondent, L'eggs Products Incorporated, Buena Park, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Interrogating employees regarding their union activi- ties and sympathies and the union activities and sympa- thies of their fellow employees, creating the impression of surveillance of employees' union activites, threatening em- ployees with termination, imposition of more onerous working conditions, and loss of benefits should they select a union as their collective-bargaining representative, soli- citing employees to revoke authorization cards and with- draw their support from labor organizations, and soliciting, encouraging, and assisting employees in engaging in sur- veillance on behalf of Respondent of the union activities of other employees. (b) Discharging or otherwise discriminating against em- ployees with regard to hire or tenure of employment or any term or condition of employment for engaging in activities on behalf of a labor organization or for engaging in activity protected by Section 7 of the Act. (c) Refusing to recognize and bargain collectively with Retail Clerks Union, Local 770, Retail Clerks International Association. AFL-CIO, as the exclusive bargaining repre- sentative of the employees in the following unit: All full- time and part-time route sales representatives employed in the Southern California or Buena Park District of L'eggs Products Incorporated, located at 6800 Orangethorpe Ave- nue, Buena Park, California; excluding all office clerical employees, confidential employees, professional employ- ees, guards, watchmen, and supervisors, as defined in the Act. (d) In any other manner interfering with, restraining or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer LuAnn Morgan and Jackie Wade Smith imme- diate and full reinstatement to their former positions of employment, dismissing, if necessary, anyone who may have been hired to perform the work that they had been performing prior to the dates on which they were terminat- ed, or, if their former positions do not exist, to a substan- tially equivalent position, without prejudice to their senior- ity or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the '2 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulation. be adopted b) the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 422 L'EGGS PRODUCTS INCORPORATED discrimination, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records necessary to compute the backpay and reinstatement rights set forth in The Remedy section of this Decision. (c) Upon request, recognize and bargain, effective as to January 26, 1976, with Retail Clerks Union, Local 770. Retail Clerks International Association, AFL-CIO, as the collective-bargaining representative of the employees in the above-described appropriate unit respecting rates of pay. wages, hours, or other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (d) Post at its Buena Park. California, facility copies of the attached notice marked "Appendix B." 63 Copies of the notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to ensure that said notices are not altered, defaced. or covered by any other material. (e) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. t In the event that this Order is enforced bN a Judgment of a United States Court of Appeals. the words In the notice reading "Posted hb Order of the National Lahor Relations Board" shall read "Posted Pursuant Io a Judgment of the United States Court of Appeals Enforcing an Order of Ihe National Lahbor Relations Board " IT IS FURTHER ORDERED that the complaint he, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. APPENDIX A 11-14-75 Bill Watson-Food Bsk-Dist mgr. called 283-5793 store #208 out of product--*Lu Ann said she was reducing freq. on some other F.B. also LuAnn told the above to: 582-9580 Virginia-non foods girl-469-4118 L.A.M said she was coming in E.O. Wk Got the impression that this was being done in all stores *she was surprised about seeing Majo in the other store wkly. (Virginia has more than one store she works at) 11 18 75 rack still shot-been that way for 2 or 3 wks Mr. Chavan till 5:00 NAVY EXCHANGE 11-14-75 Hosp.-needs service badly--also wants a rack in Mini Mart store-given II -14 Bi-rite 5th need service-given 11-14 again Central Drug needed product mix changed & no std ch done -std now on the rack is way off-very unhap- PY Lu Ann called Fri to tell me about fri meeting given mess. about Navy & Bi rite on 5th-need service MondaN 423