Raley's, Inc.

RALEY'S, INC. Raley's Inc. and Retail Clerks Union, Local 588, Affi- liated with Retail Clerks International Association, AFL-CIO. Cases 20-CA-12229 and 20-RC-13645 June 16, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDA.E On October 28, 1977, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and a supporting brief, Respondent filed cross-exceptions and a sup- porting brief, and the Charging Party filed a brief in reply to Respondent'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,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent conducted a series of three preelection meetings on October 14, 1976,2 prior to the October 20 representation election.3 Approximately 10 office employees, or roughly one-fourth of the unit, were invited to and did attend each meeting. Respondent's controller, Keith Tronson, presided over the meet- ings and was assisted by Vice President James Teel. The record indicates that this series of meetings was the first time that these employees had met as a group with management officials other than their im- mediate supervisors. The format of all the meetings, each lasting I to 1-1/2 hours, was in all important respects identical. Tronson testified that he started the meetings by informing the employees of the Oc- tober 20 representation election and describing the procedures involved. Thereafter, he explained in de- tail Respondent's existing wages and fringe benefits Respondent has excepted to certain credibility findings made hs the Administrative Law Judge. It is the Board's established policy not to over- 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 Dry 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 All dates are 1976 unless otherwise indicated. A fourth meeting was held on October 15. However, no specific evidence was presented regarding what occurred during this fourth meeting. As a result of the election, a majority of employees cast ballots indicat- ing they did not choose to be represented. The tally of ballots shows that of approximately 45 eligible voters, 21 voted for representation by the Union and 23 voted against. Two ballots were void for the office employees, many of which were brought to the attention of some employees for the first time. In addition. Tronson announced that he could make no promises or commitments because the law precluded it. After these benefits had been explained, Respondent's representatives invited questions from the employees. As detailed in the Administrative Law Judge's De- cision, the questions covered a range of topics and were not limited to matters covered in Tronson's speech. The employees repeatedly complained about their pay scales, the sick pay policy, asserted mis- treatment by supervisors, and the absence of a policy allowing for the transfer of central office employees to Respondent's retail stores. At each meeting the bulk of the time was spent answering such employee inquiries. In responding to those complaints and questions. Respondent reiterated the phrase that it could make no promises with respect to the problems the employees were raising. While accepting the credibility resolutions made by the Administrative Law Judge, specifically, that neither Tronson nor Teel ever stated that the criticisms expressed by the employees would be "looked into," the record, as credited, clearly reveals that Respondent made addi- tional statements at these meetings not wholly in ac- cord with its disavowals of promises. First, credited testimony indicates that Tronson, upon learning of alleged abuses by a supervisor, be- came upset and said he would "find out why" there was a problem. Tronson himself testified that, at the time, he informed the employees that they "could come to us, and because we are the supervisors of their supervisors that we had control over the, over the supervisors. And that if they had a problem, we would deal with it as best we could." Furthermore, Tronson and Teel admitted that they stated to em- ployees that Respondent "tried," "attempted." or had the "intention" to be "competitive" in the wages it paid. These statements were made in the meetings with the employees in answer to employees' com- plaints about wages, which was one of their principal concerns. At the hearing, Respondent acknowledged that its wages were not competitive. In view of the foregoing, we conclude that the em- ployees clearly were led to believe that the expressed abuses would be remedied and that any future inci- dents would be subject to the control of Tronson and Teel. With respect to the responses concerning wages Respondent's promise to remedy wage deficiencies to the extent of making them competitive is patent, in- deed. almost explicit. Any doubt on this score is eliminated by state- ments made by Teel and Tronson which are in direct contradiction to a true "no promises" position. At 236 NLRB No. 97 971 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these meetings. Respondent announced an "open door" to Tronson and Teel for the discussion of any employee problems. Such access, which had not been announced previously, was unknown to some or most of the employees and therefore for them did not exist in practice. IThe fact that some employees had in the past taken the initiative to discuss grievances with Tronson and Teel does not indicate otherwise. This announcement of a new or expanded avenue of access constitutes not merely a promise of an addi- tional benefit, but rather its implementation. As this Board has previously held,4 the structure of such preelection meetings provides a "compelling in- ference" that the employer by its conduct at such meetings impliedly promises that the grievances raised would be corrected. Were we to conclude that Respondent, by merely reciting a "no promises" for- mula, had clearly discharged its duty to avoid giving the employees the impression that their complaints would be remedied,' we would be forced to conclude that the parties at these meetings were engaged in a largely meaningless exchange concerning the em- ployees' grievances and complaints. However, it is apparent that the reason for their voicing such com- plaints was the hope that they might be remedied. Clearly, as reflected in the Administrative Law Judge's Decision, the adamancy with which the em- ployees continued to express their grievances and Respondent continued to entertain them, despite such formalized disavowals by Respondent that any changes would ensue, sufficiently indicates that such disavowals were not tendered or taken at face value. Thus, we conclude that Respondent's oft-repeated stock phrase of "no promises" was a mere formality. serving only as an all-too-transparent gloss on what is otherwise a clearly implied promise of benefit. In view of the above. we find that Respondent coerced employees in violation of Section 8(a)(1) of the Act by its solicitation of employee grievances and its implied promises to remedy them. It follows that such conduct interfered with the employees' freedom of choice in the election and we shall set aside the results of the first election. In addition, as one of the grievances raised by the employees at all of the meetings held on October 14 concerned the need for restructuring and increase in their pay scales, it is apparent that Respondent im- pliedly promised that it would correct this source of discontent. In fact, the record reveals that this was by 4Reliance Electric (omparnv, Madi.son Plant Mechanical Drives Division. 191 NLRB 44, 46 (1971). ' Member Jenkins finds that the inference of implied benefits stemming from such preelection meetings is irrebuttable, and that in any case Respon- dent's "no promises" sloganeering does not provide Respondent with a de- fense to such violative conduct. (Compare his dissent in Uarco Incorporated. 216 NLRB 1. 3 (1974). no means a hollow promise on the part of Respon- dent. The evidence indicates that it has generally been Respondent's policy to readjust the wages of employees who are to receive increases in the middle and at the end of the calendar year. However, on October 22, Respondent announced that it was refor- mulating its pay scales and that the raises to be an- nounced in the near future would be made retroac- tive to a period within a week of the election. In the announcement, Tronson invited the employees to submit to him information which would aid him in evaluating current wage levels. When the wage ad- justments were announced on November 12, practi- cally every employee received a wage increase, which for most of the employees exceeded 20 percent of their previous income. Prior increases had been somewhat more modest in amount and were never given to more than approximately half of the em- ployees. Respondent attempted to explain the size and the scope of this increase on the basis of two factors. First, when the previous June 1976 wage increase had been given, the person responsible for imple- menting the increase had improperly utilized an area wage survey compiled by an employers' association, and had consequently pegged the raises to the infor- mation compiled regarding the lower wage ranges for the "general" employee category, as opposed to the intended midrange wage of the "skilled" employee category. Second, it had become apparent that the existing wages did not reflect employee seniority and that some newer employees were earning sums in ex- cess of the wages of more senior employees similarly situated. This was the first time seniority had been taken into account in determining employees' wage levels. According to Tronson, he decided not to wait until December, when wages would ordinarily have been adjusted, because he had decided that Respon- dent had conducted a "clean campaign" and could now grant immediate increases, as it wished to elimi- nate as soon as possible the effects of previous errors made regarding wage adjustments. However, Respondent's explanation is insufficient independent justification, and we find that it is ines- capable that the raises were intended to serve as a reward to the employees for their rejection of union representation.6 The fact that the raises were tailored to eliminate inequities resulting from the previously unstructured system does not provide such "legiti- mate business justification" as to make the raises proper. It appears that the raises cannot be fully just- ified as merely an attempt to correct improperly im- plemented wage adjustments made during the previ- ous summer and the Administrative Law Judge 6 Westminisler (ommuni5y Hospital. Inc., 221 NLRB 185 (1975). 972 RALEY'S, INC noted that he did not rely on this rationale. Specifi- cally, the evidence fails to show that seniority was ever intended to be a factor in computing the wage adjustments at that time. This deficiency was first noted during the employee meetings just prior to the representation election. Rather than exonerating Re- spondent from a finding of an 8(a)(1) and (5) viola- tion because this grievance had some basis in fact, these raises conveniently served the double purpose of eliminating wage inequalities in fulfillment of the implied promise of benefit made at the meetings as well as rewarding employees for their rejection of the Union. As such, Respondent violated the Act in this regard. CONCLUSIONS OF LAW 1. The Respondent, Raley's, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 588, affiliated with Retail Clerks International Association, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, on October 14 and 15, solicited grievances from employees concerning their working conditions in order to discourage them from joining or supporting the Union or designating or selecting the Union as their collective-bargaining representa- tive, and on those dates did promise employees im- proved wages or other benefits if the employees vot- ed against union representation, and therefore violated Section 8(a)(l) of the Act. 4. Respondent, on or after October 26, changed the wage structure of its central office employees in order to reward them for having voted against union representation and therefore violated Section 8(a)(l) and (5) and Section 2(6) and (7) of the Act. 5. By its conduct, as set forth above, Respondent has interfered with its employees' freedom of choice in selecting a bargaining representative, and such conduct warrants setting aside the election conduct- ed on October 20 in Case 20-RC-13645. REMEDY Under the facts of this case, it is clear that the violations of the Act committed by Respondent served to undermine the majority status of the Union which it had achieved prior to the election.7 Since the improper solicitation of grievances requires that the first election be set aside, we must further determine 7 The Administrative L aw Judge found that, as of Jul, 12. the I nion had obtained, on authorization cards, the valid signatures of () emplo'ees majority of those within the unit whether Respondent's conduct has rendered doubt- ful or impossible the holding of a free and fair rerun election. In these circumstances, it appears that Re- spondent became fully apprised of its employees' motivation in seeking the assistance of a collective representative through its solicitation of grievances. As a result of its conduct during the preelection meetings and its grant of postelection wage increases. which we have found were in violation of the Act, Respondent attempted to extirpate the source of the employees' interest in collective representation. Spe- cifically, Respondent in effect assured its employees that an, abusive conduct by supervisors would not reoccur: that they could freely communicate employ- ment-related problems to Respondent: and that through the postelection wage increase they were lib- erally rewarded for their rejection of union represen- tation. In the face of such substantially changed terms of employment, particularly considering the scope and size of the wage increases, we conclude that the effects of such misconduct would carry over into a rerun election and improperly affect its results. Accordingly, we find that a bargaining order is ap- propriate in this situation 8 as the only effective rem- edy for Respondent's unlawful conduct. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended. the National Labor Re- lations Board hereby orders that the Respondent, Ralev's, Inc., Sacramento. California, its officers. agents, successors, and assigns, shall: 1. Cease and desist from: (a) Conducting meetings with groups of its em- ployees for the purpose of hearing and adjusting em- ployee grievances or complaints and explicitly or im- pliedly promising them economic benefits or improved working conditions in order to interfere with their choice of a bargaining representative, or as an inducement to reject and refrain from activities in support of Retail Clerks UInion, I.ocal 588, affiliated with Retail Clerks International Association, AFL CIO, or ans other labor organization. (b) Granting wage increases to its employees in order to induce them to reject the Union as their collective-bargaining representative. but without prejudice to any wage increase or other economic betterments heretofore granted. (c) In an' like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is )o..' ... y,i 4A ,. n . 225 Ni RB 806 (1970) I1 :Itrn,nm,er ( r.milni, l Io'Potal. Ir, ,q'r, R ;, l [s,,uni.,l. F io>udr;. In, . 208 Ni RB 102 (1974). 971 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collec- tively with Retail Clerks Union, Local 588, affiliated with Retail Clerks International Association, AFL- CIO, as the exclusive bargaining representative of the employees in the following appropriate unit, and, upon request, embody in a signed agreement any un- derstanding reached: All full-time and regular part-time accounting office clerical employees, general office clerical employees and advertising department employ- ees of Raley's, Inc., at its 1515 20th Street facil- ity in Sacramento, California; excluding all other employees, guards and supervisors as de- fined in the Act. (b) Post at its Sacramento, California, facility cop- ies of the attached notice marked "Appendix." 9 Cop- ies of said notice, on forms provided by the Regional Director for Region 20. after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the election held on October 20 among Respondent's employees be set aside, and that the petition in Case 20-RC-13645 be, and it hereby is, dismissed. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading"Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NoT ICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE Wlt . NOT conduct meetings with groups of our employees for the purpose of hearing and adjusting their grievances or complaints, and di- rectly or impliedly promising them benefits or improved working conditions, in order to dis- courage our employees from voting, joining, or supporting Retail Clerks Union, Local 588, affi- liated with Retail Clerks International Associa- tion, AFL-CIO, or any other union. WE WILL NOT grant to our employees wage in- creases in order to induce them to reject the above-named Union, or any other labor organi- zation whom they select as their collective-bar- gaining representative, but without prejudice to any wage increases or other economic better- ments heretofore granted. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their organizational rights guaranteed under the National Labor Relations Act, as amended. WE WILL, upon request, recongize and bargain collectively with the above-named Union as the exclusive bargaining representative of the em- ployees in the following appropriate unit, and, upon request, embody in a signed agreement any understanding reached: All full-time and regular part-time accounting office clerical employees, general office cleri- cal employees and advertising department employees of Raley's, Inc., at its 1515 20th Street facility in Sacramento, California; ex- cluding all other employees, guards and sup- ervisors as defined in the Act. RALEY'S, INC. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me on May 17, 18, and 25, 1977, at Sacra- mento, California, pursuant to a complaint in Case 20- CA-12229 issued by the Acting Regional Director for Re- gion 20 of the National Labor Relations Board on January 31, 1977. The complaint is based upon a charge filed by Retail Clerks Union, Local 588, affiliated with Retail Clerks International Association, AFL-CIO (herein called the Union), on December 6, 1976.' The complaint against Raley's, Inc. (herein called Respondent) alleges that it has engaged in certain violations of Section 8(a)(l) and (5) of the National Labor Relations Act, as amended. On July 14, the Union filed a petition in Case 20-RC- 13645 seeking a representation election among certain of Respondent's central office employees in Sacramento. Af- ter a hearing, the Regional Director issued a Decision and Direction of Election in an appropriate unit. The election was held on October 20. The tally of ballots issued on that date shows that, of approximately 45 eligible voters, 21 voted for representation by the Union and 23 voted i Hereinafter all dates are 1976 unless otherwise noted. 974 RALEY'S, INC. against. Two ballots were void. Thereafter, on October 26, the Union filed 13 objections to conduct affecting the out- come of the election; and, on December 21, the Acting Regional Director issued a supplemental decision, followed by a second supplemental decision on December 28, in which he overruled 10 of those objections, but ordered a hearing on the remaining 3. These three, in substance, al- lege that Respondent interfered with the outcome of the election by (1) dealing directly with employees in soliciting their grievances and advising them to take their problems directly to the Employer, thereby impliedly promising that grievances and problems would be resolved, and (2) im- pliedly promising employees that pay or other benefits would be improved in the event that they voted against union representation. On January 31, 1977, the Acting Re- gional Director ordered the complaint and objections con- solidated as they involved a single controversy. Issues The principal issue is whether or not Respondent, prior to the October 20 election at a series of meetings held on October 14 and 15 with voting unit employees, committed unfair labor practices by making implied promises of bene- fits and soliciting grievances. Assuming that there is suffi- cient proof to sustain those allegations, I must determine whether or not a bargaining order should issue based upon those violations. If I determine that those violations are insufficient to warrant a bargaining order, I then must de- termine whether or not the wage increase given after the election also constitutes an unfair labor practice and, if so, whether or not a fair second election can be held or wheth- er a bargaining order should issue. In the event that I con- clude there is insufficient evidence of preelection unfair labor practices, I must nonetheless determine whether or not the postelection wage increase constituted an unfair labor practice and, if so, whether the remedial order should include a directive setting aside the election and ordering Respondent to bargain with the Union. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of all parties. Upon the entire record 2 of the case and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FA(T I. THE BUSINESS OF THE EMPLOYER Respondent admits, and I find, that at all material times it has been a California corporation with its corporate headquarters in Sacramento, California, where it is en- 2 In reviewing the exhibit folders, I noticed a number of defects including the fact that no exhibit bears the court reporter's official stamp, which is used as a tool for indexing as well as to show the document to be the one actually offered. The lack of indexing resulted in several errors which the parties subsequently agreed to correct. gaged in the retail sale and distribution of food products and general merchandise. During the past calendar year, its gross sales exceeded $500,000, and it purchased goods valued in excess of $50,000 directly from suppliers located outside the State of California. Accordingly, it admits, and I find, that at all times material herein it has been an em- ployer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. Ill THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates a chain of drug stores and super- markets. It has approximately 25 stores in California and 15 stores in Nevada. Some of its stores are freestanding drugstores and some are freestanding supermarkets. It also operates combination stores. It has collective-bargaining relationships with several locals of the Retail Clerks Inter- national Association, AFL-CIO, including the Charging Party for its Sacramento area stores. Respondent also has contracts with other local unions, including locals of the Teamsters Union, the Meat Cutters Union, and an inde- pendent union known as the Independent Drug Clerks As- sociation. Except for its Winnemucca and Carson City, Nevada, stores, all of Respondent's retail outlets are orga- nized. Respondent has recognized the Union for its Sacra- mento area retail store employees since sometime in the 1940's. Respondent's corporate headquarters is located in a 70- year old building at 1515 20th Street in Sacramento. Locat- ed at that office are the corporate offices, the advertising and print shop departments, as well as all functions includ- ed under the accounting department. It is this facility which is involved herein. Respondent is owned by Tom Raley, although the rec- ord does not show his corporate title. Its president is Charles Collings, its vice president in charge of operations is James Teel (his duties include labor relations responsibil- ities), and its controller is Keith Tronson. In addition. its personnel department is headed by a Mr. Gilmore. The chief accountant and thus principal supervisor of the office clericals is Tom Cobb, who is assisted by the office manag- er Helen Greenlaw. According to Tronson, Cobb reports to him, while (ilmore reports to both Tronson and Teel de- pending on the nature of Gilmore's business. B. Existing Practices Before the Union began organizing Respondent's office employees on July 12, Respondent had several practices and policies in effect which are involved to some extent in this matter. It normnally gave semiannual wage increases, one increase coming in the middle and the other at the end 975 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of each year. It had a health insurance plan together with vision and dental supplements. It had a retirement plan, for which employees became eligible after a certain num- ber of years. It also had a plan under which employees who were sick were not immediately paid for the days on which they were sick but were paid for those days in a lump sum prior to Christmas of each year. In addition, Respondent had an unannounced "open door" practice whereby rank- and-file employees who had matters to discuss with higher management could do so. Other policies or practices men- tioned in this case included Respondent's policy pro- hibiting office employees from transferring to retail stores, its practice of permitting its office employees "summer hours," and whether or not it promised to fix the air-condi- tioning. The latter two subjects, summer hours and air-condition- ing, are not really involved in the case, although witnesses were asked questions about them. There is no claim that Respondent made any threat or promise with regard to summer hours, and the parties agreed that the matter of air-conditioning was too trivial to be pursued, particularly since the problem affected everybody in the building, was chronic, and was apparently insoluble. Those two subjects, therefore, will not be discussed further. C. The Union's Card Majority The General Counsel and the Union are seeking a bar- gaining order to remedy the unfair labor practices they believe Respondent has committed. As will be seen, I find that Respondent has committed no unfair labor practices and accordingly have recommended dismissal of the com- plaint. Nonetheless, I recognize that a reviewing authority may disagree with my conclusions. Accordingly, I shall de- cide the question of whether or not the Union had attained tentative majority status prior to the commission of the acts alleged to be unfair labor practices. If my conclusions with regard to the unfair labor practices are sustained, the findings with regard to the Union's card majority will be superfluous; if not, they will serve to avoid a remand on that issue. The facts and my conclusions regarding the Union's card majority follow. In mid-July, Chief Accountant Cobb held a so-called "pep talk" among his office personnel. These employees became angered by the tone of the pep talk and shortly thereafter arranged a meeting with the Union's business agent, Willie Drain, and his assistant, Bryson Hiding. The meeting was held after work at a nearby bar, Lord Beaverbrook's Cocktail Lounge. During the course of that meeting, which lasted between an hour and an hour and a half, 24 employees signed applications for union member- ship. The parties submitted a joint exhibit showing that as of July 13 the unit consisted of 46 employees. Thus, on July 12, the Union had obtained the signatures of a majority (by one) of Respondent's unit employees on application forms which contained language designating the Union as their collective-bargaining representative. Between July 15 and October 12, the Union obtained the signatures of six more unit employees. The designation of representative language on the forms is unambiguous and clearly may be used for the dual purpose of a recognition demand or a petition for an election. Respondent does not contest these facts but contends the cards were obtained by misrepresentation. In support of this argument, it points to two unchallenged facts. First, nearly every witness, except Union Business Agent Drain, testified that Drain said the cards were for "information purposes." Many employees also testified that Drain said signing the cards created "no obligation." Second, Respon- dent observes that the print size of the designation lan- guage which appears on the membership application form is minuscule, being so small as to be nearly illegible. More- over, Respondent notes that the union officials also had the employees sign a second document entitled "Informa- tive Report and Assignment of Respresentative." This doc- ument also contained authorization language, though in somewhat larger type. Respondent questions the need for the second document and urges that the Union was engag- ing in a certain amount of "flim-flam" by requiring signa- tures on both documents particularly where the authoriza- tion language on one of the documents was nearly unreadable, and the second document, despite the second half of its title, appears to be for another purpose. So far as I am aware, however, none of these considera- tions affects the validity of the cards. Cases are legion, of course, to the effect that a card majority is invalid where the cards are obtained by the misrepresentation that they are to be used "solely" for the purpose of an election. N.L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575, 584 (1969); Cumberland Shoe Corporation, 14 NLRB 1268 (1963); Levi Strauss & Co., 172 NLRB 732 (1968). Despite occasional language to the contrary, undoubtedly other forms of misrepresentation could occur justifying invalida- tion of the cards and thereby causing loss of what other- wise would be majority status. However, I do not believe a union official's statement that the cards were for "informa- tion purposes" is a sufficient misrepresentation to warrant invalidating the designations of representative. All but one of the signers executed the "Application for Membership," and I seriously question whether any employee could have been misled about the purpose of a document with that title. The employee who did not (Rhonda Henas) signed an unambiguous dual-purpose authorization card at a later date, and there is no evidence of misrepresentation as to her. The Board has held that signing cards entitled "Appli- cation for Membership" is sufficient to warrant the conclu- sion that the employee knew what he was signing. Sco- ler's, Incorporated, 192 NLRB 248 (1971), enfd. 466 F.2d 1289 (C.A. 2, 1972). In addition, the Board has held the cards are not invalidated because the card solicitor said that signing them created "no obligation." Fort Smith Out- erwear, Inc., and H. L. Friedlen Company, 205 NLRB 592 (1973) 3 (Member Kennedy dissenting), citing Wallace Metal Products, Inc., 199 NLRB 819 (1973). Thus, I do not find the signatures were obtained by misrepresentation as to the purpose of the document. Also, I find no merit to Respondent's objection to the Union's use of fine print in the designation language. I find that it is sufficiently legible. No employee claimed the print Enfd in part remanded in part 499 F.2d 223 (C.A. 8, 1974). 976 RALEY'S. INC. was too small and apparently none had difficulty reading it. Accordingly, I reject Respondent's contention that the cards are invalid for that purpose. Finally, with regard to the Union's alleged "flim-flam" technique of obtaining signatures, I conclude Respondent's contention here must likewise be rejected. I confess to a certain amount of concern about the possibility of deceit in obtaining the signatures in these circumstances. Certainly, the designation of representative language in the "Informa- tive Report and Assignment of Representative" is unneces- sary for the purpose of obtaining the other information called for in the document and which Drain said the Union needed. It seems to me the second document had no pur- pose except to obtain the signatures of employees who re- fused to sign the "Application for Membership." I think that obtaining signatures in this manner is a sharp practice requiring close scrutiny. Nonetheless, as all but two 4 of the signers signed both documents, I find there is no likelihood that any employee's signature was actually obtained by de- ceit. I conclude therefore that, as of July 12, the Union had obtained the valid signatures of a majority of the employ- ees in the unit. D. The Union's Demandfor a Card Check and Negotiations Immediately after having obtained the 24 cards on July 12, Union President Ralph D. Williams wrote Respon- dent's vice president, Teel, a letter advising him that a ma- jority of Respondent's office employees at its central office had designated the Union as their exclusive bargaining representative. Williams offered to prove majority status by submitting the authorization cards to an impartial per- son suggesting a meeting 2 days hence. He went on to re- quest negotiations. Teel turned the letter over to Respondent's attorney, Patrick W. Jordan, who replied by letter on July 15 advis- ing the Union that he represented Respondent and asking that future communications be directed to him. He further advised Williams that Respondent declined to participate in a card check and declined to recognize the Union "until such time as Local 588 is certified by the National Labor Relations Board as the collective-bargaining representative in an appropriate unit." As noted above, the Union had already, on July 14. filed with the Board's San Francisco office its petition for an election in that unit. Following a hearing and a direction of election, an election was scheduled for October 20. Neither the Charging Party nor the General Counsel contends that Respondent engaged in any improper activity between July 12, when the cards were first obtained, and the October 14-15 preelection meetings. E. The October 14-15 Meetings On October 14, Controller Tronson and Vice President Teel conducted three meetings with groups of approxi- mately 10 voting unit employees. On October 15, they held 4Jeanette Richardson signed only the application for membership. and, as previously noted, Henas signed a traditional authorization card. the fourth and last meeting. However, employee witnesses were called only with regard to the three meetings which took place on October 14. The General Counsel called two employees. Alene DeRaps and Patricia Dorge, to testify about the first meeting which began at approximately 10:30 a.m. Respondent called employees Sunny Fuller and Joyce Martinez to testify about that meeting as well. The General Counsel called no one to testify about the second meeting which began at I p.m. Respondent, however, called three employees, Deborah England. Yvonne Morris, and Janice March, to testify about the second meeting. The General Counsel called two employees., Jennifer Muschetto and Carol Huddleston, to testify about the third meeting which began at approximately 3:30 p.m.; Respondent called employee Edward Entrican. Respondent also called Controller Tronson and Vice President Teel who testified about their conduct at all four meetings. 1. Meeting I Tronson testified that the first group of employees select- ed were the "most outspoken" employees in the voting unit. He says they were selected because he believed it was a good idea to speak to them first in order to reduce the likelihood of someone mischaracterizing the rumors which he was sure would follow. My observation of DeRaps, Dorge. Fuller, and Martinez is consistent with his view. All four are outspoken and all four, to varying extents, tended to permit their feelings to edit their recollections. I hasten to add that I do not believe that any of them were telling deliberate untruths; rather, it is a question of who could recall the meeting objectively best. Tronson testified he opened the first meeting by advising the employees that the NLRB had scheduled the election for October 20. He explained the mechanics of the election. He then launched into an explanation of existing benefits prefacing his remarks by saying neither he nor Teel could make promises or commitments to the employees as they were precluded by law from doing so. He then described the existing fringe benefit plans including the pension plan and the hospitalization plan together with its vision and dental coverages. After that he opened the meeting for questions. At this point the testimony begins to diverge. Both De- Raps and Dorge agree that during the entire meeting Tron- son said neither he nor Teel could make promises or com- mitments: indeed, Dorge testified they made such a statement at least 10 times. Nonetheless. both testified that, when employees asserted that the pay scales were inade- quate and inequitable, Teel said although he could promise nothing he would "look into it." DeRaps testified Tronson said that he was already looking into it and had been look- ing in the newspapers. She says Tronson agreed with the employees conceding. "You are a little below par." Dorge's testimony is similar. She testified Tronson said he would take complaints under advisement. However, slightly con- trary to DeRaps. she testified Tronson said employees should check the newspapers to see what kind of wages competing employers offered saying he had done so and believed the Company was "on a par." She also recalls him saving he could "not guarantee anything." 977 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both Fuller and Martinez agree that Tronson prefaced each of his discussions with a phrase to the effect that he could make no promises. Unlike DeRaps and Forge, how- ever, they both testified Tronson did not say he would "look into" things. They also deny Tronson said anything to the effect that he was in the process of checking into wage matters or conducting a wage survey. Martinez re- called Tronson said Respondent's pay scale was some- where "in the middle," and employees could check the newspaper want ads if they wished to compare wages. Fuller recalls she complained to Tronson that current sal- ary levels were impossible to live on, and he responded by saying he couldn't make promises on salaries. She agrees with Martinez that Tronson said nothing about wage sur- veys but does not believe either Teel or Tronson mentioned looking in the newspaper. Both Teel and Tronson deny they in any way offered to review the pay scales. They did admit they suggested em- ployees look in the newspaper to see if Respondent's wages were competitive. Tronson denied he said that he was pre- paring a wage schedule averring that such a statement would have been a waste of time, for he was concentrating on winning the election and was then under the belief that it was likely the Union would win. Moreover, he says, Re- spondent's attorney, Jordan, had admonished both him and Teel not to make such statements and so they did not. On balance, I conclude that the more credible of these versions is that of Tronson, Teel, Martinez, and Fuller. I reach this conclusion because DeRaps and Dorge tended to overreach and add material which is inherently unlikely. For example, DeRaps testified as follows: Q. (By Mr. Jordan) Did [Tronson] say he had looked [in the newspaper] because he thought the wage policy was pretty competitive with what was being paid in the industry? A. At our meeting, he stated-in the beginning, in the first part of the meeting, he said that no way we were going to make $6.00 or $7.00 an hour. But, then, during the part of the meeting, when it was more or less opened for discussion and we were speaking about wages, he said, "1 can't promise you, but I will look into it." He says, "In fact, I have looked in the news- paper." He says, "I will have to agree with you girls, you are a little below par." Q. But did he say that he thought the company pol- icy was to be competitive with what was being paid in the area? A. At our meeting, he just stated that he thought we were a little below par. Q. Did he ever say he was going to do something about that if you voted against the union? A. He said he had already looked in the newspaper. Q. Did he say he was going to do something about it, raise your wages? A. Well, evidently he was going to do something one way or the other or he wouldn't have looked in the newspaper. Q. That is a conclusion. A. Or telling us that he would look into it. Q. That is a conclusion that you are drawing, an assumption, is it not? A. Why else would he look in the newspaper? I find DeRaps' testimony here to be improbable. More- over, it shows that DeRap tends to inject her personal con- clusions into her testimony. It is improbable because it is unlikely that this Employer would concede that its wage scale was less than its competitors.5 More likely is the re- sponse recalled by Martinez, Fuller and Dorge to the effect that Respondent was "on a par" with competitors. To con- cede that Respondent was not competitive would more than likely result in persuading undecided employees to vote for union representation. Moreover, as attorney Jor- dan notes in the latter portion of the quoted testimony, her testimony tends to be conclusionary. Dorge's testimony, too, is subject to doubt. She virtually confessed she could not recall Tronson's statements with any degree of certainty. A principal example follows: Q. (By Mr. Jellison) When Mr. Tronson said, dur- ing this October 14th meeting on apparently several occasions, that he couldn't make any promises, did he couple that statement about he couldn't make any promises with any further statement? A. He couldn't make any promises, but the next statement would be, to the effect, that they couldn't- MR. JORDAN: I am going to object to this. JUDGE KENNEDY: I know what the objection is. Let's try and recall the exact words that he used, if you can. I think we may have used them a number of times already, but you go ahead and- WITNESS: I can't remember or recall exactly the words that they used. It was always we cannot make you any promises, but we will look into it. We will surely-since I can't say for word for word, but words are strange, and it is the way you say them not the words themselves. My own personal opinion- MR. JELLISON: No, I don't want your personal opin- ion. WITNESS: No. Okay. No personal opinion. MR. JELLISON: All I want is what you can recall he said, if anything. If you can't recall any further, fine. But I don't want your personal opinion. WITNESS: Okay. Then I will just drop it. But there was always a follow-up statement after we cannot make you any promises, but-it is not we are going to anyway, but it is-that is what I got. I am sorry. In addition to casting doubt on her ability to adequately recall what occurred, I regard her testimony as demonstrat- ing a tendency to interpret Tronson's words in the manner she wished to hear them. I think she sincerely believes Tronson made a statement implying that wages would be increased; I am equally certain that Tronson did not say such words. That she believed he had is not unusual in an electioneering context. Aside from representation elections, Elsewhere in this Decision I note that Tronson says he had determined the then current wage practice was not fully competitive and had numerous inequities. Despite that knowledge he had decided to campaign on the basis that Respondent was competitive. He used the newspaper want ads as evi- dence that it was even though he knew the want ads were not the best place to find accurate wage comparison information. 978 RALEY'S, INC. electioneering commonly includes promises, and I believe Dorge simply wanted to hear a promise so badly that she engrafted one to Tronson's actual statement. I conclude therefore that at the first meeting on October 14 neither Tronson nor Teel made any expressed or im- plied promises that wage increases would be made in the event that the employees voted against union representa- tion. Also at that first meeting employees complained about Chief Accountant Cobb and Personnel Manager Gilmore. Both Tronson and Teel expressed surprise at the vehe- mence of the complaint.6 Tronson testified he replied that supervisors had supervisors and Cobb and Office Manager Greenlaw worked for him while Personnel Manager Gil- more worked for both Teel and Tronson depending on the area of inquiry. He went on to say his door was always open. Martinez said she knew she had access to anyone in the building including Respondent's owner, Raley. DeRaps testified Tronson said he didn't believe Cobb's actions with regard to the incident about which the em- ployees were complaining were correct, and he said he would meet with the supervisors to try to improve commu- nications. Although Dorge testified Tronson said he would try to get Gilmore to improve his personal relationships with employees, that the Company was a family operation and he would try to keep it so, Dorge also testified Tronson said he would not change any personnel policies. Despite Dorge's statement, it is clear that the employees were prin- cipally concerned about Cobb, not Gilmore. Martinez testified that, upon hearing the employees' complaint about Cobb, Tronson became upset saying that there should be a reason why Cobb was threatening em- ployees; that Cobb would have to answer and Tronson would find out why. However, according to Martinez, he also said he was not going to go right upstairs to ask Cobb the questions. Fuller testified neither Teel nor Tronson said they would do anything with regard to the Cobb situation. Both Teel and Tronson deny saying they would look into the Cobb matter. Tronson and Teel both say Tronson pointed out that his door had always been open, and Tron- son recalled saying he didn't see how the Union could help with the day-to-day relationship each employee had with his or her supervisor. Both Tronson and Teel testified an employee then observed that even if Tronson's door was open he wasn't always in his office. Both recall Tronson responding that, if he wasn't in his office, a note could always be placed in his mailbox. Several other matters were discussed as well. Some em- ployees complained about the existing sick pay program whereby employees were given a pre-Christmas check cov- ering those days which they had been off sick during the year rather than receiving a normal paycheck during the year. Teel testified he told the employees that many years ago they had voted to have the sick pay program in the current manner. DeRaps testified that Tronson said that he would look into the matter and that perhaps employees could vote on it again. Dorge testified Tronson said that if 6 It should be observed that there is no record evidence that Respondenl's representatives knew or had reason to know that Cobb's July "pep talk" had tnggered the Union's organizing drive. people were unhappy about the current practice it could be looked into, but she also recalled Tronson specifically say- ing that he would make no promises about it. She recalled Tronson saying it had been voted on before and could be voted on again. Martinez testified that she recalled the em- ployees' talking about the matter among themselves but that Tronson and Teel said little if anything on the subject. She recalls Tronson saying he didn't care which way the program worked. She specifically recalled he did not sug- gest another vote on the subject and that he had no deci- sion to make about it. Fuller, who had raised the subject. recalled either Tronson or Teel saying that employees had elected to have it this way, and she replied she doubted people wanted it that way anymore. She recalled rather vaguely that either Tronson or Teel said it was "up to the employees to get it changed." Teel testified he explained how the program had come about and explained how it worked noting that it followed a policy set forth in the collective-bargaining agreement Respondent had with the Independent Drug Clerks Association. He recalled Tronson's saying Respondent didn't care which way the sick pay program worked. Tronson corroborates Teel and testified that the reason he didn't care which way the pro- gram worked was because the way suggested by the em- ployees would be slightly cheaper in that employees who quit during the year would probably not be paid for un- used sick leave. Both deny suggesting that another vote be taken. During this meeting, either Martinez, Jody Lowery, or Linda Smith told Tronson that when she was hired she had been promised the right to transfer to a retail store. Dorge testified that during this discussion Tronson said such transfers were against company policy but "could be looked into." She recalls Teel's saying that as far as they knew they weren't going to change the policy but "would look into it." DeRaps agrees that Teel said it was not com- pany policy to permit transfers, but she says Tronson said he would "look into that." Fuller recalls Tronson's and Teel's saying that the Company had a policy against store transfers because employees couldn't use the office as a jumping off place." She testified Teel said nothing about changing the policy. Martinez was not asked about the matter. Tronson testified that in response to the question raised by Lowery and Martinez he merely said it was against company policy to permit store transfers. Teel re- called that it was Linda Smith who asked the question about the store transfers. He, too, said it was against policy and she replied she'd been made the promise. Teel denies that he offered to change the policy. It should be observed at this point that to each of these meetings Tronson brought at least two documents. The first was a copy of a questionnaire (not in evidence) which the Union had distributed to employees seeking to de- termine what the employees wanted; the second was a list of matters which he believed should be discussed at the meeting. Dorge testified, with apparent reference to Tronson's use of the Union's questionnaire, that Tronson said he had looked into employee "grievances" and as there was some truth to them he would "look into them." She recalls he asked the employees to vote against the Union and to give the Company another chance. She says 979 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he said he wanted to do what was right and needed a vote of confidence from the employees; that what the Union could do the Company could do. However, she also re- called Tronson's saying he could not make any promises. Tronson, corroborated by Teel, recalled that when he used the Union's questionnaire, he merely pointed to some of the matters listed therein saying, "How could anybody be against that; to be against those things would be like being against motherhood and apple pie." None of the other em- ployee witnesses corroborated Dorge's version. 2. Meeting 2 The General Counsel called no witnesses with regard to the second meeting; Respondent called employees Debo- rah England, Yvonne Morris, and Janice March. The meeting proceeded in the same general format. Tronson advised the group of the upcoming election, described its mechanics, and then proceeded to describe existing bene- fits saying the Company could make no promises or com- mitments. The principal difference was that, having previ- ously heard the employees' complaints about Cobb and an expressed claim by employees that they were not familiar with the company hierarchy and that they did not know to whom they could turn, Tronson was more explicit about his and Teel's duties pointing out that Cobb and Gilmore reported to them. The three employees who testified with regard to this meeting were generally consistent. They testi- fied that Tronson and Teel said they weren't at the meeting to make promises but were there merely to state Respon- dent's position. The first item which appears on Tronson's reminder sheet which he had with him was the statement: "We are precluded from making specific promises such as pay in- creases or other benefits." The use of the phrase "specific promises" triggered a series of questions by Respondent and the General Counsel flowing from the use of the phrase "specific promises." Their purpose was to show that if Tronson stated that he could make no "specific prom- ises" a negative pregnant could be found because the promises would be implied and not specific. They asked both Morris and England if Tronson said he could not make "specific promises." Both, however, denied Tronson used the phrase "specific promises." Morris, March, and England all testified that Tronson and Teel said many times (estimated between three and six times) that they could make no promises. March recalled that was their response to "nearly everything." Moreover, she says nei- ther Teel nor Tronson ever said, "[TIhey would look into things." With regard to pay matters, Morris testified that pay was discussed mostly by the employees. When she asked Teel if the Union would get employees higher wages, Teel did not answer that question replying only that he couldn't make any promises and telling her his hands were tied. On direct examination, England could not recall that wages were dis- cussed at all but did say Tronson never said he was going to conduct a wage survey. With regard to fringe benefits, she recalls Tronson's saying he "could not do anything at this point because of the Union and he could not make any promises to us at all." Tronson testified that during this meeting Morris asked him what the pay would be if the Union didn't win the election. He replied, "We can't an- swer that," referring to his opening remark that neither he nor Teel could make any "specific promises." Thus, despite the employees' recollection that he did not use the phrase "specific promises," he admits on this occasion that he did. Despite this admission, I find no negative pregnant isjusti- fied as the employees clearly did not recall it occurring that way. The complaints about Cobb were discussed at the sec- ond meeting as well. March and England both testified Tronson said the Company always had a policy that em- ployees could come and discuss anything freely and his door was always open. England also testified Tronson said he did not think the Union could solve problems employ- ees had with their immediate supervisors. In addition, the matter of the sick pay program was dis- cussed. Someone, probably Susan Corrin, complained about it, and Tronson said he understood the complaint, explained how the policy had been established, but reaf- firmed the policy. Morris said employees asked if it could be changed and Tronson replied, "We can't make any promises at this time." England testified that Tronson did not mention voting about it again. 3. Meeting 3 The General Counsel called Jennifer Muschetto and Carol Huddleston to describe the third meeting. Respon- dent called Ed Entrican. The format followed the second meeting in which Tronson, in addition to describing the mechanics of the election and describing existing benefits saying he was not there to make promises or commitments, also described the fact that he and Teel supervised Cobb and Gilmore. Muschetto, Huddleston, and Entrican all agreed that Tronson and Teel said on a number of occa- sions they could not make promises. Muschetto said that Tronson made that statement at least six times and Teel said it at least three times. Huddleston recalls Tronson say- ing it at least three times. Entrican recalls Tronson's and Teel's saying that they could not make promises and were there to answer questions. He recalled that, when problems were mentioned to them, they acknowledged their exis- tence but said they could not promise to resolve anything. He recalls their saying their hands were tied because of "the law." Huddleston testified that during the meeting she com- plained that wages and pay shcedules were unfair. She tes- tified: "When I was speaking of wages and how unfair the pay schedule was, [Tronson] agreed [with] me that he was-that seniority should be paid more than somebody hired off the street, and he was going to set up a pay scale, and that is the way I understood him." She also testified that at one point Tronson said Respondent's wages were competitive but he would "look into it." At another point she testified Tronson agreed with her that wages were un- fair and not according to seniority, and he would look into it but would promise nothing. Muschetto testified: "The first matter brought up was pay because that was our ma- jor complaint, that we weren't making enough money, that most of us could barely get by on what we were making. He kept stating throughout the meeting that they couldn't 980 RALEY'S. INC' promise us any pay increases, but that the matter would be looked into." Entrican testified that wages were discussed in the context of the newspaper. He said Tronson told the employees that the newspaper want ads showed Respon- dent's wages were not too far out of line. Although not specifically asked, the thrust of his testimony is that neither Teel nor Tronson said they would "look into" wages. With regard to employees' complaints about Cobb. both Muschetto and Huddleston said employees described to Tronson the way Cobb had discharged an employee and Tronson appeared surprised about it.7 Huddleston said Tronson told them he was not aware of Cobb's "pep talks" and his threats of discharge. They said he explained his duties included personnel duties and that the Company had an open-door policy, and employees could talk to him privately about problems they were having. Muschetto tes- tified Tronson said that messages could be placed in his box. Huddleston testified that Tronson said suggestions could be placed in his box and that he would also consider any wage information if it were put in his box. Entrican denied her version saying that Tronson did not mention the subject of a wage survey nor did he invite employees to submit wage information to him. Muschetto testified Tron- son said, "If you have any problems come to us" and that he had never said anything like that before. Entrican testi- fied that, after Muschetto complained about the manner in which an employee had been fired, Teel said he was not aware of the firing, but Tronson replied he was aware of it yet made no further comment. Entrican testified both Teel and Tronson said the Company had an open-door policy and if people had problems they could see either of them. Moreover, according to Entrican, Tronson said that if any- one didn't want to see him in person he or she could write him a note and put it in his mailbox. Muschetto testified with regard to the sick pay program that Tronson explained how it started and told them they could vote on it again. Huddleston said Tronson said he would look into it and see how the people felt but made no promise to change it. She said it was a matter to be left up to the employees, and he did not indicate what action, if any, he would take. Entrican said Teel described how it came about and then said that maybe it was time for a change but nothing could be done about it now because they couldn't promise anything. Of these three only Huddleston was asked about the sub- ject of store transfers. She said that either Teel or Tronson said it was not company policy to permit such transfers. but he would look into why someone had told employees that the Company permitted such transfers. She also testi- fied that during the course of the meeting Tronson said that had he known about the employees' problems before he could have helped. He concluded, according to her, by saying, "Please give me another chance. Do not vote for I am unable to accept Muschetto's and Huddlesion's claim that I ronson appeared surprised upon hearing the employees' complaint about Cobb. This was the third meeting and the third time he had heard it. He had even adjusted his introduction because of it. Certainly, there was no advantage to be gained by feigning surprise: indeed. it is probable that he would simply have said he was familiar with the complaint having already heard iI twice that day. Thus. I regard their testimony as embellishment and casting suspi- cion on their testimony elsewhere. the Union. If I fail you. you can always vote again. Put vour trust in me." With regard to Huddleston, I found her to be unable objectively to describe what she perceived. In her testi- mony quoted siupra, she refers to the fact that she "under- stood" statements from Teel and Tronson rather than de- scribing them. Moreover, at one point during her testimony she said that Tronson told her that in the event of a strike the Company could "fire us." No other employee corrobo- rated that remark and in fact it was Teel who discussed the Company's rights in the event of a strike, not Tronson. Later on cross-examination, she virtually confessed she equated the word "replace" with the word "fire." Judging from earlier company campaign material, it is more likely he referred to the Company's right to replace strikers. I recognize that the distinction between the two words is not easy for a lay person: indeed, it is not easy for some law- yers. Nonetheless, in the context of this case, where there is great disagreement about what was said, I do not believe it unfair to note this as an example of Huddleston's inability to recount accurately what was said. Accordingly, although I do not find her to be unreliable, neither do I find her to be as reliable as Entrican, Tronson, or Teel. With regard to Muschetto. although I find that she testi- fied reasonably honestly, again I do not believe her recol- lection was as good as that of the other witnesses. More- over. on one occasion, after testifying she was unaware that the Company had an open-door policy, she was asked if she knew if other employees had ever taken up any prob- lems with either Tronson or Teel before the October 14 meeting. She replied that she knew of employees who had taken such problems up with Tronson and Teel. However, she immediately retracted that saying she didn't know whether or not anybody had. Again, although I do not believe this testimony' to be particularly significant, it does tend to show her lack of clear recall. Both Tronson and Teel testified that it was difficult for them to recall each meeting specifically as they tended to run together in their minds. The)' are adamant in their as- sertions that they made no promises. Indeed, both recall saying several times that they could make no promises be- cause they were precluded by law from doing so. As noted elsewhere in this Decision, no party called any employee witness with regard to the fourth meeting which was held on October 15. Thus, only Tronson and Teel testi- fied about the fourth meeting but only in general terms. F. Respondent's Preelection Correspondence to Employees On September 7 and October 8, Teel wrote the voting unit employees letters in which he argued against union representation. In neither of these letters did he make any remark which any party considers to be improper. On Oc- tober 8, he also sent a copy of those letters to the advertis- ing department and printshop employees who had just been added to the voting unit by the Regional Director. On October 19, the day before the election, Tronson re- sponded by memo to a union campaign claim dealing with contracts it had with office employees of two competitors. In particular, he cited certain wage inequities that he be- lieved the Union had done nothing about. He concluded 981 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his memo as follows: "As we have pointed out, we are unable to quote any rates since this could be construed as an attempt to make promises relative to proposed rates. But any subsequent changes in rates will be based on all information we have available to us." G. The Postelection Wage Increase On October 22, 2 days after the election, Tronson issued a memo to all office employees and their supervisors. In that memo he advised that he was in the process of making a detailed salary evaluation based on information available to him. He said, if any of them had information regarding salary schedules for Sacramento area groups, he wished that information could be submitted to him so it could be included in the study. He further advised there would be a rate change retroactive to October 25. On November 12, Tronson actually announced the spe- cific wage changes. This was done by issuance of a pay schedule with an effective date of October 26. This sched- ule (G.C. Exhs. 4 and 4(b) ) divided the central office em- ployees into four categories: (1) Accounting clerks; (2) lead clerks and payroll clerks; (3) general office clerks, printing machine operator, and assistant sign painter; and (4) secre- taries (except executive), leadman-printshop, and advertis- ing aides. It then set forth four hourly wage schedules based upon months of service. This adjustment of pay scales according to seniority was a change from the existing practice. The previous pay sys- tem for these employees can only be described as a "non- system." It appears to be the result of the lack of effective controls. Junior employees were often paid more than more experienced employees, although each was doing ap- proximately the same job. Over the years this had resulted in a number of inequities. Tronson explained that the se- niority application was an effort to remedy these inequities. Nonetheless, other aspects of these increases raise cer- tain questions. Because of the injection of the seniority fac- tor, it would not be unusual to expect the raises to vary either in the amount of money or in terms of the percent- age increase. Nonetheless, the overall size of the increase was quite large, in one case $1.45 an hour or an increase of 32 percent. In addition, the increase affected virtually all of the employees in the voting unit. Moreover, there is the question of the timing of the increase. Tronson testified that raises were generally given every 6 months. The last increases had been given in June to 18 employees and in July to 4 more. Examination of the payroll records shows that Respondent's practice between January 1974 and Oc- tober was inconsistent at best. In the 33 months between January 1974 8 and October, there were only 5 months in which one employee or another did not get some sort of increase. It does appear that in April 1974 a general in- crease was given, although not to everyone, as were in- creases in February and March 1975, June 1975, December 1975, and, as previously noted, June. None of the pre-Oc- The records in evidence do not show if raises were actually given in January 1974. that month is used to show pay rates in effect as of that month. While it is probable that raises were given in that month, I have not counted it for that purpose. tober increases was very large. For example, in December 1975, Yvonne Morris received a 9-cent hourly raise in- creasing her rate of $3.03 to $3.12. In June, she received a 17-cent raise to $3.29. However, her October increase was to $4.04, a jump of 75 cents. That figure, of course, is pur- suant to the new schedule and is in accordance with her length of service. Huddleston, an example cited by the General Counsel, is even more dramatic. In January 1974, her rate was $2.31. In July 1974, she received a 9-cent in- crease; in January 1975, 10 cents; in March 1975, 17 cents; in June 1975, 17 cents; in September 1975, 6 cents; in De- cember 1975, 6 cents; and in June, 23 cents, to her then rate of $3.17 an hour. However, in October, she was jumped to $4.62, an increase of $1.45 per hour. This, too, is in accordance with her seniority under the new schedule. To put her increases in some perspective, however, it should be noted that, although her general category now is accounting clerk, a generic classification for all of the func- tions she has performed, nonetheless she has performed different duties since she was originally hired in 1972. No doubt, as her duties changed, her rates of pay changed as well. This may well account for the number of pay-rate changes noted herein. Respondent's Explanation of the Wage Schedule Tronson explained that, because an increase had been given in June, he could not understand why the employees had sought union representation in July. Accordingly, he looked into the wage structure to see if that was an area of employee dissatisfaction. He testified that, prior to the June increase, he had given instructions to Chief Accoun- tant Cobb to implement the June increase in accordance with a wage survey conducted by the Sacramento Valley Employers Council. He said he had told Cobb to put the office employees into the midrange of that survey. Thus, he says, when he began investigating after the filing of the petition, he learned that Cobb had not followed these in- structions. In addition to failing to place the employees in the proper range, according to Tronson, Cobb had also failed to take into account an instruction to upgrade the employees from the "general" category to a skilled catego- ry. This directive, he said, was a result of a gradual conver- sion to electronic cash registers. He said the first one was installed in late 1974 but it was not until mid-1975 that a large number were installed. He said that these cash regis- ters record a great deal more data than the displaced regis- ters. Accordingly, the office clerks who reviewed the data had to expand their duties and thus their skills increased. The records are inconclusive with regard to whether or not the small number of wage increases which occurred during mid-1975 had anything to do with the skill level or duties of the accounting clerks. According to Tronson, when he discovered Cobb's error, he decided to do nothing about it because Attorney Jordan had earlier advised him that the Company could not make any promises or grant any pay increases until after the election. At that point, Tronson says he decided to concen- trate on the election and wait until December. Teel testi- fied that Tronson told him of Cobb's error sometime in June. In any event, after the election turned out favorably, 982 RALEY'S, INC. the two decided that Respondent had run a "clean cam- paign" and was now free to do what it wanted. Thus, ac- cording to them, they decided not to wait until December but to implement the corrections as soon as they could. It was for this reason that Tronson issued his October 22 memo requesting the wage information and advising that an increase was forthcoming. No testimony was taken with regard to the manner in which Respondent reached the wage schedules announced on November 12, retroactive to October 26. IV ANALYSIS AND CONCLUSIONS A. Preelection Conduct I have previously noted that this case presents difficult questions of credibility. I have already resolved the ques- tion of whether or not Tronson on October 14 and 15 im- plicitly promised a wage increase and concluded that he did not. Even his October 19 memo is not an implied promise. It simply repeated what he had said at the meet- ings and then stated the obvious-that future wage increas- es would depend on information to be discovered in the future. That could easily have included union wage de- mands. I therefore find this memo perfectly lawful. However, other questions remain to be more fully re- solved. In resolving these matters I have taken into account many things. I have noted that Respondent has little, if any, antiunion animus. It has a long relationship with the Charging Party, as well as other locals of the same Interna- tional Union. In other bargaining units it recognizes three other unions as well.9 Moreover, Attorney Jordan's admo- nitions to Tronson and Teel to the effect that they made no promises and grant no wage increases are not without weight. I have also considered the possibility that certain of the employees called by Respondent may have had a bias. Martinez wrote an open letter to employees in which she argued against representation by the Union having appar- ently been offended by some of the Union's tactics. None- theless, I did not find her testimony colored to any great extent. So far as I could tell she testified in a straightfor- ward, honest manner. Moreover, she is corroborated to a high degree by Fuller, who, for the most part, was a very impressive witness. Indeed, she was one of the employees most offended by management and also in need of the higher wages the Union could be expected to negotiate. Yet, her testimony was consistent with that of Tronson and Teel. The most important factor I have considered, however, is the undisputed fact that Tronson and Teel said over and over again that they could not make any promises or com- mitments. Estimates of the number of times this was said ranged from 3 to 10 per meeting. Two witnesses (March 9A mild irony is the fact that Respondent was recently found guilty of giving unlawful assistance to the Charging Part) with regard to the repre- sentation of certain drug clerks, who properly belonged to the Independent Drug Clerks Association's bargaining unit. See Rales s. Inc. 227 NLRB 670 (1976). Thus, it appears that Respondent ma) actually favor the Charging Party in some circumstances. This is not to say, of course, that Respondent welcomed the Charging Party as the representative of its central office em- ployees. and Entrican) testified that nearly every response made by either Tronson or Teel was prefaced by a statement to the effect that promises could not be made. In view of these factors, and the mistrust of certain wit- nesses' recollection noted earlier, I reject the assertions that Tronson and Teel made any express or implied promises with regard to: (1) A wage survey: (2) changing the sick pay policy; and (3) changing the policy against transferring to a retail store. With regard to the wage survey matter as an implied promise of a wage increase, I believe DeRaps, Muschetto, and Huddleston are simply mistaken. This testimony was clearly denied by Fuller, Martinez, England, and Entrican. Respondent's argument that the postelection request for information would be a useless act if a request had been made before the election is persuasive. Moreover, the testi- mony of DeRaps, Muschetto, and Huddleston is doubted for the reasons previously expressed. As far as changing the sick pay policy is concerned, I am not persuaded the testimony of DeRaps, Dorge, Muschet- to, and Huddleston is as convincing as that of Martinez and Entrican. Moreover, Tronson and Teel's continuous statements that no promises could be made outweigh, in my opinion, any testimony to the contrary. Finally, with regard to the matter of store transfers, I am likewise not convinced. I recognize that Dorge and De- Raps testified to the effect that the policy would be looked into. Huddleston said that they would only look into why employees were being misled about the policy. Entrican denies that Tronson or Teel said they would look into the policy. It appears to me that the policy prohibiting office employees from transferring to the store was a strong one, and, after weighing all the evidence, it appears improbable that Tronson or Teel would imply that such a strong policy could be changed. Several other matters remain for discussion. At various points witnesses said that Tronson or Teel said changes of one sort or another could not be made "because of the Union" or "at this time." If taken literally, of course, those statements could be construed to mean that benefits were being denied because of the Union's presence. If that was the intent, a violation of Section 8(a)(1) would be made out. However, I regard those statements as careless recol- lections or imprecise shorthand for what was actually said. I believe it is clear that Tronson and Teel actually said that their hands were tied because they were prohibited by law from making promises of benefit. Moreover, any reference made to time was simply a reference to the fact that they could not make promises so long as the election petition was pending. Such statements are in accordance with the law, and I shall not condemn them merely because of the inaccurate recollections of employees. In addition. I am aware the Board has held that when an employer, who has not previously done so, offers employ- ees an opportunity to "air their complaints" in response to union organizing, it violates Section 8(a)(l), because there is a compelling inference to be drawn that the complaints will be remedied. Reliance Electric Company. Madison Plant Mechanical Drives Division. 191 NLRB 44. 46 (1971}.10 cit- 0 Enfd 457 F 2d S03 (CA 6. 19S2) 983 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing Raytheon Company, 188 NLRB 311 (1971). See also F. W. Woolworth Co. (Store No. 2288), 188 NLRB 941 (1971). However, I do not believe those cases are control- ling here. First, Tronson credibly denied soliciting any complaints; and, second, although he did not cut them off when they came, both he and Teel repeatedly said they could make no promises. I regard those statements as ef- fectively negating any inference which might otherwise be drawn that employee complaints would be remedied. Finally, I do not find Tronson's reference to the existing open-door practice, even if it were not a previously an- nounced policy, to be an implied promise to resolve griev- ances. It merely called employees' attention to an existing condition of employment. That is certainly lawful. See Schwab Foods, Inc., d/b/a Scotts IGA Foodliner, 223 NLRB 394, fn. 1 (1976). Even where he was responding to a com- plaint about Cobb, he did not imply he would solve the employees' complaints against Cobb but only pointed out that Cobb had superiors as well, and that it was Respon- dent's desire to keep lines of communication open. The General Counsel's contention that the open-door policy was something new is clearly without merit." Ac- cordingly, I conclude that, on October 14 and 15, Respon- dent neither solicited grievances with promises of resolu- tion thereof, nor did it promise benefits, including pay increases, in the event that the employees voted against union representation. I shall therefore recommend that the complaint be dismissed in those respects. B. The Postelection Wage Schedule Adjustment The General Counsel and the Charging Party argue that the November 12 wage adjustment was intended as a re- ward to the employees for having voted against union rep- resentation. Indeed, the Board has held on numerous occa- sions that a reward of this nature does indeed violate Section 8(a)(1).' 2 The Board has also found employers to II In 1975. after a payroll clerk had been terminated. Tronson explained the circumstances of the discharge to certain employees in order to maintain morale. thereby identifying himself as having personnel authorization. In 1976, accountant Entrican complained to Tronson because Cobb had as- signed him to a new position In June. Sunny Fuller went to Tronson to request a week's pay in lieu of a vacation, a request which Cobb had refused to grant. About the same time. Julie Hloffman made a complaint to Teel about Gilmore. In the early part of the year, printer Dave Lewis went to Teel requesting him to overrule Gilmore's denial of the right to purchase some printing equipment. Once, a sign shop employee bypassed his super- visor by going directly to Teel to ask that certain shelving be constructed. In late 1975. employee DeMario's stereo equipment, which was being used by the advertising department, was stolen. I>eMario went to Teel to ask him to override Gilmore's refusal to compensate him for the loss. Martinez testified that she knew she could approach any supervisor; she never thought there were any closed doors. Muschetto at one point started to admit that she was aware that employees had taken up problems with Tronson and Teel; later. she recanted, saying she didn't know. Based on these instances, it is difficult for me to conclude that an open-door practice was not in effect. That some matters which were discussed were more closely related to personnel than others (i.e., vacation policy variance versus reimbursement for stolen stereo equipment) does not change this conclusion. 2 E.g., Eagle Material Handling of New Jersey. 224 NLRB 1529 (1976), enfd, 558 F.2d 160 ((.A 3. 1977). Wetstmrinster (Communi9 , Hospital, Inc. 221 NLRB 185 (1975), enfd. as modified 566 F.2d 1186 (C.A. 9, 1977): F W ' Woolworth Co. (Store No. 2288). supra. C( E. Collins and 0 C. Col- lins. d, hba Collmi Mining (ornompanv. 177 NLRB 22i1 (1969), enfd. per iuriam 440 F.2d 1069 (C.A. 6, 1971). I)eoral ( srporation. etc.. 163 NLRB 146 have violated Section 8(a)(l) by the granting of postelec- tion benefits in situations where it is clear that the em- ployer sought to obtain an advantage in the event a second election was ordered.t3 There is even at least one case holding that a grant of benefits during the period for filing objections violated Section 8(a)(1) and therefore was cause to set the election aside. F. W. Woolworth Co. (Store Number 2288), supra at 948. However, the question of whether or not postelection violations of Section 8(a)(l) are grounds for setting the election aside appears to have been repudiated by the Board in Shulman's Inc. of Norfolk, 208 NLRB 722 (1974). Ultimately, of course, the question of whether a postelec- tion grant of benefits violates Section 8(a)(1) is a question of fact; i.e., was the purpose of the grant to interfere with the employees' Section 7 rights or was it for some other purpose? The only way that question may be answered is from an analysis of all the surrounding circumstances. In my opinion, such an analysis dictates the conclusion that Respondent's November 12 readjustment of the wage structure was not made for the purpose of rewarding em- ployees for rejecting the Union or for seeking an advantage in the event of a second election. In reaching this conclusion, it is not necessary to de- termine whether or not Tronson gave Cobb directives in June regarding that wage increase or whether Cobb failed to implement them. Nor is it necessary to determine wheth- er or not the skill levels of the employees had risen to such an extent as to justify an upgrade from a "general" office employee to some sort of "skilled" level. When he scruti- nized the salary structure of the office employees, Tronson learned it was not structured at all. Indeed, it had little rhyme or reason. Newly hired employees with little or no experience were being paid an amount equal to or more than experienced employees. Common sense tells me that such a situation would rapidly create a morale problem together with a concomitant risk of loss of efficiency, not to mention the probable higher risk of losing experienced employees. In the face of those risks, it is not surprising that Tron- son and Teel decided immediately after the election to remedy the topsy-turvy system which had come into exis- tence. Nor am I surprised that it was done promptly after the election rather than awaiting the December or January increase. Potential morale problems flowing from the ex- isting practice had been courted long enough. There was no sense in extending that invitation to trouble and pro- longing that risk. While the timing itself raises a suspicion about Respon- dent's motive here, the fact that Respondent had demon- strated no antiunion animus prior to the election weighs heavily in determining the purpose of the wage restructure. Had Respondent previously promised a wage increase or relief from the old system, it would be easy to conclude (1967), enforcement denied 397 F.2d 488 (C.A. 7, 1968); Gal Tex Hotel Corporation, d/bia Admiral Semmes Hotel and Motor Hotel, 154 NLRB 338 (1965): Northwest Engineering Company, 148 NLRB 1136 (1964), enfd. 376 F.2d 770 (C.A.D.C., 1967). m E.g., Felsenthal Plastics, Inc., now known as Grede Plastics, a Division of Grede Foundries, Inc., 224 NLRB 1312 (1976); Centralia Container Corpora- ion, 195 NLRB 650 (1972); Ralph Printing & Lithographing Co, 158 NLRB 1353 (1966). enfd. as modified 379 F.2d 687 (C.A. 8, 1967). 984 RALEY'S. INC. that its implementation was the fulfillment of that promise. However, unlike the "reward" cases cited supra, there is no evidence supporting that view. Tronson's October 22 memo cannot be taken as evidence of an expression of gratitude except by strained inference. Unlike the facts in some of those cases, the memo did not thank the employees for their vote; and, unlike the "advantage" cases cited supra, the memo did not link the wage increase to the election or to possible objections. Thus, it is not reasonable to con- clude that the readjustment was intended to obtain an ad- vantage in the event of a second election. Indeed, the likeli- hood of a second election appeared remote to Tronson and Teel, and their seeking an advantage in a second election does not appear to be a reasonable probability. I conclude therefore that Respondent's intent and pur- pose 14 in making the postelection wage adjustment was not to interfere with the Section 7 rights of its employees, but was instead for a legitimate business considerationi. 5 Cf. Evansville & Ohio Valley Transportation Co., Inc., supra: and Mr. Fine, Inc., 212 NLRB 399, 403-404 (1974); Erie Technological Products, Inc., 218 NLRB 878, 883 (1975): Advance Envelope Manufacturing Company, Inc., 170 NLRB 14 The Court of Appeals for the Third Circuit has recently said: "'hether a post-election conferral of benefits constitutes an unfair labor practice de- pends. we believe, on the employer's purpose in granting the benefits" N.L.R.B, v. Eagle Material Handling, Inc., et al., 558 F.2d 160. 165 (C.A. 3. 1977). The Board appears to agree with this test. See Eian.silhl & ()hwil Valley Transporration Co., Inc., 223 NLRB 184, fn. 2 (1976). where the Board said it was relying on the Administrative Iaw Judge's finding ihat a benefit grant "was made without intent or purpose of interfering w ith the employees' statutory rights nor to influence the outcome of the pending election and that such benefits would have been granted whether or not the Union had been in the picture." Member Jenkins did not rel; on the :h- sence of "intent or purpose." 15 Tronson's assertion that even as earls as June the Compans was itring to upgrade wages according to skills and to pay its employees in accorda.nce with a community wage survey cannot be ignored. Of course. I,) the time the new structure was put into effect in November, the March rates shos n in the Sacramento Valley Employers Council surves were 8 months out cof date. Moreover, Tronson had asked for. and no doubt received. more up-lo- date information. Thus, comparison of the November wage schedule vulth the Sacramento Valley Employers Council survey would not be useful ('er- tainly, neither the General Counsel nor the Union made any attempt at the hearing to determine the factors Tronson eventually relied on. 1459 (1968): HYdraulic Acces.sories Company. 165 NLRB 864, 870 (1967): Falcon Plastics-Disision of B-D Lahorato- ries. Inc., 164 NLRB 786. 794 (1967), enfd. 397 F.2d 965 (C.A. 9. 1968). 1 shall therefore recommend that the com- plaint be dismissed with respect to the postelection wage adjustment as well. \ 1ilt t .t([CTION In view of m, finding that Respondent did not violate Section 8(a)(1) of the Act during the preelection critical period in Case 20-RC-13645, I shall recommend that the objections, all of which track the alleged unfair labor prac- tices. be overruled. and that the election results be certified. Upon the foregoing findings of fact and upon the entire record in this case. I make the following: CON( Lt SIONS OF LAW 1. Respondent Rale¥'s. Inc.. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks LUnion. Local 588, affiliated with Retail Clerks International Association, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. Respondent. on October 14 and 15, did not solicit grievances from employees concerning their working con- ditions in order to discourage them from joining or sup- porting the Union or designating or selecting the Union as their collective-hargaining representative, nor, on that same date, did it promise employees improved wages or other benefits if the employees voted against union repre- sentation, and therefore it did not violate Section 8(a) 1I) of the Act. 4. Respondent, on or after October 26, did not change the wage structure of its central office employees in order to reward them for having voted against union representa- tion or in order to obtain an advantage in the event a sec- ond election were ordered, and therefore it did not violate Section 8(a)(5) and (I) of the Act. IRecommended Order for dismissal omitted from publi- cation.] 985