Marine World USA

MARINE WORLD USA Marine World USA and Teamsters Local 856, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Ma- rine World Employees Union,i Party in Interest Marine World USA and Marine World Employees Union, Petitioner. Cases 20-CA- 11815 and 20- RC- 13430 May 16, 1978 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 6, 1977, Administrative Law Judge Rus- sell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 con- clusions, and recommendations of the Administra- tive Law Judge and to adopt his recommended Or- der, as modified herein. Respondent operates an amusement park in Red- wood City, California. Prior to the events herein, the Union had represented certain employees of Respon- dent for approximately 10 years. The most recent collective-bargaining agreement between the parties was effective until November 30, 1975. On Novem- ber 12, 1975, the parties met to negotiate a new agreement; however, the existing agreement expired before the parties could agree on a new one. On Jan- uary 18, 1976, Respondent submitted its final offer to the Union. The unit employees voted on the final offer and rejected it.? The parties never agreed upon a new contract. I Marine World Employees Union is referred to herein as the Employees Union. Teamsters Local 856. International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America (the Charging Party in Case 20-CA-11815 and the Intervenor in Case 20-RC 13430). is referred to herein as the Union. 2 In his Decision at sec. 111, under "Background." the Administrative Lau Judge indicated that Respondent's employees have been represented by the Union pursuant to 2-year contracts. whereas it is clear from the record that there were two prior 3-year contracts between Respondent and the Union- the more recent of which expired on November 30. 1975. In addition. in his Decision at sec. Ill.B, the Administrative Law Judge indicated that Respon- dent had offered during negotiations with the Union that a new contract be retroactive to December i, 1974. whereas it is clear from the record that Respondent had offered that a new contract be retroactive to December I. 1975. We hereby correct these inadvertent errors. 3 The final offer included a wage increase of 8 percent for the period from On March 3, 1976, a decertification petition was filed covering the unit employees. On March 16, the Employees Union filed a petition seeking to repre- sent the employees in that unit. On April 6, Demetr- ios, Respondent's president, wrote letters to the Union and the Employees Union in which he sought their consent to a wage increase for the employees. The Employees Union gave its consent. In a letter dated April 12, the Union refused to consent and requested "discussions" of the matter with Respon- dent. By letter dated April 27, Respondent declined the Union's request on the basis that such discus- sions would constitute negotiations and would be un- lawful in light of the pending representation proceed- ings, and reiterated its request that the Union consent to the wage increase. During the election campaign, Respondent's presi- dent distributed a memorandum to the unit employ- ees, dated June 2. 1976, in which he indicated that a wage increase could not be given because the Union had failed to give its consent. On August 5, 1976, Respondent's president addressed another memoran- dum to the unit employees in which he indicated that the Union had "held up increased wages ... for the apparent reason that [the Union] could not take full credit." Following the Board-conducted election on August 6 and 7, the Union filed timely objections to conduct affecting the results of the election. On De- cember 6, during the pendency of the objections, Re- spondent granted a 15-percent wage increase to its employees. The Administrative Law Judge found, inter alia, that Respondent violated Section 8(a)(1) of the Act by telling its employees on June 2, 1976, that it could not grant them a wage increase because the incum- bent Union had failed to consent to such action and by telling its employees on August 5, 1976, that the Union had "held up" a wage increase. He further found merit in the Union's objections to the election held August 6 and 7. 1976, based on the above con- duct, and recommended that the election be set aside and a new election be directed. We agree with these findings and recommendations. In concluding that Respondent violated the Act and engaged in objectionable conduct, the Adminis- trative Law Judge relied primarily on McCormick Longmeadow Stone Co., Inc.. 158 NLRB 1237 (1966). Our dissenting colleague concludes that the former case is totally inapposite here. However, as in Mc- Cormick Longmeadow. Respondent here, on its own initiative, directed its employees' attention to the December I. 1975. to November 30, 1976; 7 percent for the period from December I, 1976. to November 30. 1977. and 7 percent for the period from )ecember 1I 1977. to Nosnember 30) 19'7 236 NLRB No. 10 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union aspect of the matter of a wage increase and sought to place the onus on the incumbent Union for not instituting an increase. Thus, on June 2, at a time when wage increases had not customarily been given in the past, Respondent informed the employees that the "only barrier to putting the new wage into effect immediately" was the failure of the Union to grant its consent. Additionally, in its August 5 announce- ment, made I day prior to the election, Respondent advised its employees that the Union had "held up" a wage increase "for the apparent reason that [the Union] could not take full credit." And, significantly, as found by the Administrative Law Judge, there is nothing in the record to show that the reason for the Union's refusal to accede to a wage increase was that attributed to it by Respondent. Furthermore, the Au- gust 5 announcement included repeated references to matters extraneous to the Union's failure to consent to a wage increase and was couched in terms clearly intended to influence the employees against the Union, to discredit the Union, and to discourage membership therein.4 In these circumstances, and particularly in light of the reason attributed by Respondent to the Union for its conduct and the other references to the Union in the August 5 announcement, we cannot conclude that Respondent's announcements were merely de- signed to advise the employees truthfully that the) had not received a wage increase because of the Union's failure to consent. Rather, in view of the timing and the nature of Respondent's announce- ments, we find that, as in McCormick Longmeadow, 4 In the August 5 announcement, Respondent's president stated. inter alia, with respect to the Teamsters. the incumbent Llnion; Despite all campaign promises and boasts. I feel that the conduct of the Teamsters over the past six months has not been in your interests They did not conduct negotiations in a diligent manner. but used de- laying maneuvers. When these tactics became evident it caused dissat- isfaction resulting in the filing of a petition for an election. Since then the Teamsters have tried to wsear down management and the Marine World Independent Union. They have held up increased wages. which I offered, for the apparent reason that the) could not take full credit. We are a unique organization with our own unique problems. You are a small minority of [the Teamster local union], which has no real interest in you because you are not generally associated with other members. Though rich and large, man) teamster officials are under constant attack for corruption. I believe your interests are well protected by a democratic organiza- tion of your own making. which is subject to your continuing strict control. You may enter into a collective bargaining agreement which you want and which is not subject to veto by dictonal union bosses In my opinion the price is too high, not only in dues. but in the loss of local control, self government and disinterest. except when the inter- est in [sic] in the Teamsters as an institution instead of the employees, We will bargain with whomever you select, but we feel that your welfare will be better served by the Independent Marine World Em- ployees Union. the conduct here was calculated to discredit the Union and to discourage membership therein. We therefore conclude that Respondent violated the Act and engaged in objectionable conduct.5 The Administrative Law Judge additionally con- cluded that Respondent violated Section 8(a)(l) by granting its employees a wage increase on December 6, 1976, during the pendency of the objections to the election. We disagree with this conclusion for the reasons set forth below. In finding the granting of the wage increase unlaw- ful, the Administrative Law Judge, although indicat- ing that economic necessity might well have justified the increase, concluded that the "granting of a wage increase in December . . . was given while a question of representation existed, and objections were pend- ing, and is a violation of Section 8(a)(1) of the Act." It is well settled, however, that the granting of wage increases and/or benefits during the pendency of a representation proceeding, including the pendency of objections to an election, is not per se unlawful. Rather, the test is whether, based on the circum- stances of each case, the granting of increased wages and benefits is calculated to impinge upon the em- ployees' freedom of choice in an upcoming scheduled election or an election which might be directed in the future.6 Thus, for example, the Board has found the granting of new wages and benefits during the pen- dency of a representation proceeding to be lawful where an employer has established that such action was consistent with past practice, 7 such action had been decided upon prior to the onset of union activi- ty, 8 or business justifications prompted the adjust- ment. 9 We cannot conclude on the facts before us that the General Counsel has established by a preponderance ' The Administrative Law Judge also cited Amrrerdam Printing d Litho Corp. 214 NLRB 984 (1974). and Sterling Faucet Company, Texas Division, i Subsidiar o of Rockwell Manufacturing Companv. 203 NLRB 1031 (1973). in support of his conclusion that Respondent violated Sec. 8(a)(l) through its June 2 and August 5 announcements to its employees, These cases, how- ever, merely hold that an employer's placing of the onus on a union for the withholding of wage increases during the pendency of a representation pro- ceeding tends to interfere with employee free choice and constitutes objec- tionable conduct. and the issue of whether such conduct also rose to the level of an unfair labor practice was not before the Board therein. While these cases support the finding that Respondent engaged in objectionable conduct. we specifically do not rely on them for our conclusion that Re- spondent additionally violated Sec. 8(a) 1). Furthermore, the Administrative Law Judge erroneously relied on Mon- tana Lumber Sales. Inc. (Delaney & Sons Divisionj. 185 NLRB 46 (1970). a representation proceeding in which the Board in fact found that the employ- er's conduct was not objectionable. In that case. however, unlike here. the employer made clear in its campaign statements that its only reason for postponing expected benefits was to avoid the appearance of election inter- ference. 6 McCormick Longmeadow Stone Co., supra at 1242: Champion Pneumatic Machinerv Co. 152 NLRB 300. 306 (1965). 'Cf. The Gates Rubber Companv, 182 NLRB 95 (1970). SSee, e.g.. FMC Corporation, Power Control Division. 216 NLRB 476 (1975). 9See. e.g.. Frito-Las, Inc., 185 NLRB 400 (1970). 90 MARINE WORLD USA of the evidence that Respondent's action in granting the December wage increase had an unlawful pur- pose. In this regard, the timing of the increase was consistent with the practice under Respondent's and the Union's previous contracts of granting wage in- creases in December of the year. Additionally,. the amount of the increase, 15 percent, coincided with that contained in Respondent's final offer to the Union during the early 1976 negotiations. Further- more, as recognized by the Administrative Law Judge, Respondent had substantial business justifica- tion for granting an increase. Thus, Respondent's employees had not received a general wage increase for some 2 years prior to the December 1976 increase and had expressed their dissatisfaction with their wages to Respondent. Furthermore, it is undisputed that a competing amusement park had recently opened in the same geographical area. It is therefore clear that Respondent had a legitimate concern in maintaining competitive wages in order to avoid em- ployee turnover. Finally, we note the absence of any evidence that Respondent's announcement and im- plementation of the December wage increases were accompanied by any references to the Union or the pending representation proceeding. In view of the foregoing, we conclude, contrary to the Administrative Law Judge, that the record does not establish that Respondent's granting of the De- cember wage increase was calculated to undermine the employees' representation rights and that there- fore Respondent's action was not violative of Section 8(a)(l) of the Act.' 0 Accordingly, we shall modify the recommended Order of the Administrative Law' Judge to conform herewith. 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, as modified below, and hereby orders that the Respondent, Ma- rine World USA, Redwood City, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph I(a): "(a) Telling its employees that it could not grant them a wage increase because the Union failed to consent and by telling its employees that the Union held up a wage increase." 2. Substitute the attached notice for that of the Administrative Law Judge. Io Dakota Sand & (,ravel (,. 211 Nl.RB 1020 ( 19'4) i Is Hi RIHER ORDERtID that the election held on August 6 and 7, 1976, in Case 20-RC-13430 be, and it hereby is. set aside. IDirection of Second Election 11 omitted from pub- lication.] MtLMBE R Mt RPH'Y. concurring in part: I agree with my colleagues that, in the circum- stances here, Respondent did not violate Section 8(a)( I) of the Act or interfere with the decertification election by granting a 15-percent wage increase to the unit employees in December 1976. I disagree, however. with their finding that Respondent violated Section 8(a)( I) by its letters of June 2 and August 5, 1976. advising the unit employees that Respondent was unable to grant them desired wage increases be- cause the incumbent Union refused to consent to such increases. T he Administrative Law Judge and my colleagues rely on McCormick I.ongmeadow. supra, a case I find wholly distinguishable from the facts here. In that case the Board found that the respondent violated Section 8(a)( ) of the Act by conditioning the grant- ing of wage increase and other benefits on the union's waiving its right to file a postelection objec- tion based on the granting of such benefits. In that case, however, unlike here, the employer distributed copies of its letter requesting such waiver from the union to all the unit employees before even affording the union an opportunity to respond. Furthermore, the letter was couched in terms deliberately intended to undermine the union and to discourage member- ship therein. The Board particularly noted that the letter contained material which was extraneous to the employer's request for a waiver and which clearly indicated that the letter was directed more at influ- encing the employees against the union than at seek- ing a waiver from the union. None of the factors deemed important by the Board in that case is pres- ent here. I agree, however. that the Respondent interfered with the election by the above letters. It is clear that the Respondent thereby sought to disparage the union and to place the onus upon it for the failure of the employees to receive the wage increase, thereby interfering with their free choice in the election. It is well settled that conduct which may interfere with an election need not rise to the level of unfair labor practices. and that the limitations on conduct in an election context are more restrictive than for pur- poses of Section 8 of the Act.'2 The cases cited by the Administrative Law Judge-Amsterdam Printing & Litho Corp.. 214 NLRB 984 (1974), and Sterling Fau- cet Company. 203 NLRB 1031 (1973)--do not sup- I 1 [ ,lcs'lfr fl.ltnol omited from puhhla.tit n l : Dl) e (l t f mal (',mpm[, . I/ , I ' Nl RB 1782. 1786 87 (1962) 91 DECISIONS OF NATIONAL LABOR RELATIONS BOARD port the 8(a)(l) holding, as conceded by my col- leagues in footnote 5 of their opinion. However, they do support the conclusion that Respondent thereby engaged in objectionable conduct. Since I find that the letters involved herein exceeded the bounds of legitimate campaign propaganda as held in the above-cited cases, I concur in the direction of a new election therein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activities on behalf of Teamsters Local 856, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other local organization, by telling our employees that we could not grant them a wage increase because the Union failed to consent and by telling our employees that the Union held up a wage increase. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. MARINE WORLD USA DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS. Administrative Law Judge: This matter was heard at San Francisco, California on April 21 and 22, and on May 16, 19 77. i The complaint,2 issued De- cember 10, is based upon a charge filed August 17 by Teamsters Local 856, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union. The complaint alleges that Marine World USA, hereinafter referred to as Re- spondent, violated Section 8(a)(l) and (2) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. Pursuant to objections to election filed on Au- All dates hereinafter are within 1976. unless stated to be otherwise. 2 As amended in several respects on March 14. 1977; and as further amended at hearing to name George Fryette as a supervisor. and to add par. Vl(j) reading that, on an unknown date in February 1976. Respondent. by Fryette, promised an employee a wage increase if the employee would re- frain from supporting the tnion. gust 13 in Case 20-RC-13430, involving the same parties as those in Case 20-CA-11815, the Regional Director for Region 20 of the National Labor Relations Board ordered a hearing on certain of said objections, and on February 7, 1977, said Regional Director issued an Order in which she consolidated both cases, which were heard at San Francis- co, California, as aforesaid. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent.3 Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein Respondent, a Delaware corporation with its place of business in Redwood City, California, has been engaged in the operation of an amuse- ment park. During the past year Respondent, in the course and conduct of its business operations, made retail sales in excess of $500,000 and made purchases in excess of $50,000 directly from suppliers located outside the State of California. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. Marine World Employees Union, hereinafter referred to as the Employees Union, is, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent operates an amusement park, primarily de- voted to marine shows. However, animals are kept and exhibited on the premises, and other recreational facilities are maintained. The park is about 25 acres in extent, in- cluding about 16 acres of water. In addition, there is an adjacent picnic area of approximately 2 acres and another, smaller picnic area. The main entrance for the public is over a bridge, with an entrance structure just inside the park. On the right side of the entrance, in the park, is locat- ed the main gift shop. Other gift, food, and service facilities 3 Submission date for briefs was June 27, 1977. Respondent's brief was not received until June 29. However, Respondent's brief is dated June 27 and I was advised in telephone conversation with Respondent's attorney's office on June 28. that the brief had been mailed June 27. Respondent's brief therefore was considered. 92 MARINE WORLD USA are located throughout the park. On the opposite end of the park, about one-fourth of a mile away from the public entrance, is a service entrance, principally used for the main restaurant. Also located away from the public en- trance is the employees' entrance. The security shack, with a telephone and paging device, is located near the employ- ees' entrance. Also near the employees' entrance is a sepa- rate, locked gate formerly used only by department heads but presently seldom used. There is only one key for the gate, which is kept by the restaurant manager. The park has nine "fixed" merchandise shops and five "remote stands." The fixed shops, including the main gift shop, sell gifts and sundry items of merchandise. The re- mote stands are mobile, and sell merchandise such as film, hats, and balloons. The park has 12 fixed locations for preparation and sale of food,4 and 4 food vending carts. Most of the fixed locations for sale of merchandise and food have cash registers, and all locations not having cash registers use cash boxes kept by the salespersons. Supervis- ors, sometimes assisted by clerks, regularly, and often, visit all food and merchandise locations throughout the day, to collect excess cash, replenish stock, and make routine in- spections. Total number of employees varies with the season, aver- aging approximately 300 during the summer months. Most employees work in the gift shops, food locations, and se- curity force, and others work in the office, in the shows, and with the animals. Michael Demetrios is president of Respondent; Bruce Siriani is director of operations and administratively is responsible directly to Demetrios; John Rogers at times relevant herein was food and beverage manager, responsible to Siriani: director of merchandising at times relevant herein was Irving Jakowitz,5 who also was responsible to Siriani; Craig Jackson at times relevant herein was in charge of the security force of from 5 to 13 guards. (Thirteen guards were on shift duty at times rele- vant herein.) Shows at the park are performed on a sequential sched- ule, with crowds moving from show to show. Ordinarily there are time intervals between shows, giving patrons op- portunity to rest and shop. In addition, some visitors drift throughout the area at all times. The park usually is open from 9:30 a.m. until 6:30 p.m., with hours extended on weekends during the summer. Daily attendance during July 1976 was approximately 3,500. For at least the past 10 years, Respondent's employees have been represented by the Union pursuant to 2-year contracts; the most recent contract expired November 30, 1975. Negotiations for a new contract commenced about November 12, 1975, and continued until shortly after Re- spondent's final offer was given to the Union on January 18.6 The unit employees voted on Respondent's final offer, and rejected it soon after it was made on January 18. A new contract never was agreed upon by Respondent and the Union. 4One location is not open all the tlime 5Jakowitz no longer is employed b) Respondent. and no longer is a resident of this area. 6 The last negotiation session betsween Respondent and the Union ap- pears to have been held about February 5 or 6. The date was not definitel? established at the hearing. On March 3 an RD petition was filed covering Respon- dent's employees, and on March 16 an RC petition was filed by the Employees Union. On April 6 Demetrios wrote letters to the Union and to the Employees Union, stating that Respondent wanted to put a wage increase into effect, at wage rates previously proposed to the Union during contract negotiations, with- out prejudice to the then present, or future, bargaining rights of any party. Consent of both unions was requested. The Employees Union gave its consent; the Union refused, by letter dated April 12, to consent, and suggested "discus- sions" on the subject. By letter dated April 27, Respondent refused such "discussions," stating that they would consti- tute negotiations and thus would be illegal. In December Respondent granted a 15-percent general wage increase to its employees, in the amounts earlier proposed to the Union during contract negotiations. Following a campaign conducted by both unions, an election was held on August 6 and 7. Of approximately 310 eligible voters, 165 cast ballots for the Employees Union, 70 cast ballots for the Union, and 8 cast ballots against the participating labor organizations. On August 13 the Union filed objections to the election, and on February 7, 1977, the Regional Director for Region 20 of NLRB referred certain of the objections for hearing, as discussed infra. The principal issues are whether Respondent committed unfair labor practices during the campaign in June, July, and August; whether Respondent unlawfully granted its employees a wage increase in December; and whether Re- spondent unlawfully aided, assisted, and supported the Employees Union during the campaign. A. Alleged Surveillance by Jakowitz and a Security Guard Paragraph VI(a) of the complaint alleges that, on or about June 1, Jakowitz and an unidentified security guard engaged in surveillance of the union activities of its em- ployees. Mike McLaughlin, a staff attorney for the Union, testi- fied that he visited Respondent's park, alone, on June 1, to talk with employees. He said he entered the main gift shop near the public entrance, and there saw Jakowitz, near the cash register. He said he also saw guards "about" the prem- ises. McLaughlin testified that, on each occasion when he visited the gift shop, a guard was "in or about the prem- ises." The record contains nothing to support this allegation. Undisputed testimony shows the necessity for guards throughout the park at all times when it is open; it also shows that one of Jakowitz' principal duties was to make frequent visits throughout the day to all merchandising fa- cilities. The record is devoid of even a suspicion that Ja- kowitz was engaging in surveillance on June I of Mc- Laughlin or any employee, as alleged. This allegation was not proved. B. Alleged Statement lby Demetrios Paragraph VI(b) of the complaint alleges that, on or about June 2. Demetrios told employees that Respondent 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could not give a wage increase because the Union failed to consent thereto. Support for this allegation is said by General Counsel to be a memorandum addressed by Demetrios to all employ- ees on June 2. The pertinent portion of the memorandum reads as follows: In the status which we have been in since the question of representation arose, it has been impossible for Ma- rine World to put into effect new wage rates without the approval of both Unions seeking representation, the Marine World Employees Union and Teamsters Local 856. On the 6th of April I wrote both Unions requesting consent to put the new wage rates into ef- fect. The Marine World Employees Union granted this consent promptly. The Teamsters responded re- questing a meeting, which I could not have attended because it would have been illegal. I wrote them again on April 27th spelling out the wage rates that we wished to put into effect without prejudice to any bar- gaining rights, and as of yet have received no reply. The only barrier to putting the new wage rates into effect immediately is the failure of the Teamsters to grant the requested consent. On April 6 Respondent asked for agreement of the Union and the Employees Union to the raise,7 without prejudice to the bargaining rights of any party. The Em- ployees Union gave its approval: the Union refused to ap- prove, and suggested "discussions," which would have been improper because of the pending question of repre- sentation. At the time the memorandum of June 2 was written, the latest contract between Respondent and the Union had expired; negotiations had ceased; an RD and an RC peti- tion had been filed; the Union and the Employees Union were campaigning in anticipation of an election. As argued by Respondent, the memorandum makes no false state- ment. Demetrios testified, credibly and without challenge: The employees received a raise on November 30, 1974; they received no raise in 1975: Respondent offered during nego- tiations with the Union for a new contract, a 22-percent raise, retroactive to December 1, 1974, in yearly increments over a period of 3 years, of 8 percent the first year and 7 percent each for the second and third years: he was having a difficult time retaining his employees,8 particularly key employees, because of the long period they had been with- out a raise and because of keen competition for employees within the industry; the purpose of the planned raise was to "catch up" for the past two years on the basis earlier pro- posed to the Union, i.e., 8 percent for the period November 30. 1974 to November 30, 1975, and 7 percent for the simi- The memorandum of April 6 was addressed and sent. only to officials of the two unions, so far as the record shows. There is no evidence that it was sent to employees or others. or that it was given any dissemination ( General Counsel challenged Respondent on this point, attempting to show thalt Respondent did not experience specific problems because of lack of raises. lIowever. Demetrios' statements that he did have such a problem is supported b5 common sense and common knowledge. In this era of rapid inflation and yearly increases for almost all industrial employees throughout the country. failure of any industry to give increases at least yearl;. invites employee dissatisfaction and quits, lar period, 1975 to 1976, hence the 15-percent raise. The raise was not given until December, as noted supra. Discussion Respondent acted in a circumspect manner in its initial dealings with the two unions relative to the proposed in- crease. The question then arises as to why Respondent took to its employees on June 2, the results of its communi- cation with the two unions. The election was not held until August; the raise was given in December; the campaign was a heated one by June 2. Only one possibility suggests itself as the reason Respondent informed its employees of the Union's refusal to consent to the proposed raise. That reason clearly was to influence the election. Respondent argues that it was hard pressed by employees to give a raise long overdue, and that it was necessary to inform the em- ployees about the delay. However, that argument is not persuasive because raises customarily in the past were giv- en on December 1 and the raise here involved was given at the usual time-in December. Thus, nothing was to be gained by telling the employees in June about the Union's refusal to consent to the raise, other than to influence the election. The employees were not involved in communica- tions between Respondent and officials of the two unions; they were not in a position to affect the raise, other than through a representative. It may well be that economic necessity would have justi- fied a raise, and that a raise under the circumstances here involved would not have been a violation of the Act. How- ever, even if that were true, arguendo, it would not neces- sarily follow that Respondent could use the Union's posi- tion as a campaign argument.9 Respondent, on its own initiative, directed the employees' attention to the union aspect of the matter and placed upon the Union the ones for not instituting a raise. Such conduct is a violation of Section 8(a)(l) of the Act.10 Respondent's intent is empha- sized by its later repetition of this conduct, on the eve of the election, as discussed in section H, infra. C. Alleged Surveillance by Guards Paragraph Vl(c) alleges that, on or about June 5, uni- dentified guards engaged in surveillance of employees' union activities. McLaughlin visited the park, alone, on June 5 to talk with Respondent's employees. McLaughlin testified that he first visited the divers' shack, but saw no guards there. He said he then crossed over bridge leading to the main area of the park, and en route saw "more than one" guard about 10 or 15 yards away. He said he saw another guard later in the day, at the main gift shop. There was no other testimony or evidence relative to this allegation. The fact that guards are on duty throughout the park area at all times when the park is open, is not in dispute. Jackson credibly testified that 13 guards regularly were em- ployed at the park, in shifts, in the summer of 1976. There 9 MC-ormick l.ongmeadov Stove Co. Inc.. 158 NLRB 1237 (1966). It 4 msterdam Printing & Litho Corp., 214 NLRB 984 1974). Sterling Fau- cet Comrpany. 203 NL RB 1031 (1973): Montana Lumber Sole.. Inc. 185 NLRB 46 (1970). McCornlick Longmeadow Stove Co., Inc.. uprao 94 MARINE WORLD USA is nothing in the record, including McLaughlin's testimony, to show that the guards McLaughlin saw on June 5 were doing anything other than what they were supposed to do: i.e., act as guards. The record contains no support for this allegation. D. Alleged Surveillance by Rogers and a Guard Paragraph Vl(d) of the complaint alleges that, on or about July 14, Rogers and an unidentified guard engaged in surveillance of employees' union activities. McLaughlin testified that he visited the park on July 14 with Rome Aloise, then a recently employed organizer for the Union. McLaughlin testified: He stopped "just a few moments" at an ice cream concession operated by an em- ployee named Maxine Dunn to introduce Aloise. He saw Rogers in the vicinity and asked Dunn who he was. Dunn identified Rogers and, as McLaughlin and Dunn talked, a security guard "would walk back and forth in the area," about 10 yards away. McLaughlin did not see Rogers talk with the guard. Aloise did not testify relative to this subject. Rogers testified: He made frequent visits to all food fa- cilities each day to collect excess cash, check for cleanli- ness, and inspect the facilities. He knew no union represen- tative other than Joe Hurley, who did not visit the park the last few weeks prior to the election. He frequently visited and inspected food concessions operated by Dunn. On one such inspection at an ice cream concession, he saw two gentlemen at the stand, holding clipboards or a paper. When he walked up, the two men "backed off." and he thought no more about the incident. Rogers heard the next day that two men complained to Demetrios that Rogers was following them, and Rogers stated he did not know who the two were, and "I didn't even associate them with union representatives." Rogers stated that he has never fol- lowed anyone he thought was a union representative, that he has never engaged in surveillance of a union representa- tive, and that he has never visited any concession stand for the purpose of determining whether union representatives were talking with employees. There is nothing in the record to support a conclusion that any guard was engaged in surveillance on this occa- sion as alleged. As noted before, the guards on duty roamed throughout the park at all times when the park was open. Rogers was a singularly impressive witness. His testi- mony is credited, and his testimony is emphasized by the lack of proof to support this allegation. E. Alleged Surveillance by, Security Guards Paragraph VI(e) alleges that, on or about July 16, certain unidentified security guards placed surveillance on em- ployees' union activities. McLaughlin testified: He visited the park on July 16, accompanied by Aloise, to talk with employees. The two representatives were not together during the entire visit: they were separated part of the time. As he " walked from " This testimony apparently covers a time when McLaughlin and Aloise were not together. one shop to another, a guard from the last shop would follow him at a distance of about 10 yards: when he ar- rived at a different shop, a different guard would adopt the same routine. Aloise did not testify relative to this allegation. Jackson testified: At times relevant herein the guards wore uniforms, and made an effort to be seen as much as possible throughout the park. Some were assigned to shops because of a shoplifting problem. and some followed the shows to assist in crowd control. When there was a break in the show schedule, or when shows adequately were covered, guards roamed throughout the area in order to be seen. Some guards spent extra time in problem areas such as the main gift shop and the theatre. Some cash was picked up by a clerk, in addition to that picked up by Rogers, and a guard accompanied that clerk. Demetrios informed Jackson during the campaign that union repre- sentatives were granted entry into the park. No restrictions were given to Jackson by Demetrios. relating to activity by union representatives; they were permitted to go where they wished at any time during park hours. Jackson knew McLaughlin at the time of this alleged incident, but he did not then know Aloise. Jackson gave no orders to any guards relative to activities of representatives of the Union. Neither McLaughlin nor Aloise ever asked Jackson wheth- er they were under any restrictions in the park. Jackson said he never issues order to any guard to "shadow" or conduct surveillance of an, union representative and that he knew of no instance when any representative was shadowed. Jackson was a very convincing and impressive witness. His answers were prompt, succinct. and forceful. He gave the impression of an honest witness. McLaughlin's testi- mony was not of that calibre. He was very slow and hesi- tant in answering questions. he appeared doubtful of his testimony. frequently he was evasive, and often he hedged his answers. Jackson's testimony is credited. There is no support in the record for McLaughlin's testimony. It is ap- parent that McLaughlin saw nothing more than guards on duty throughout the park, and that he was not "shadowed" any more than any other visitor. This allegation was not proved. F. Alleged Surveillance by Jakowitz and a Security Guard Paragraph Vl(f) of the complaint alleges that, on or about July 26. Jakowitz and an unidentified securit) guard engaged in surveillance of employees' union activities. McLaughlin testified that he visited the park with Aloise on July 26, to talk with employees. McLaughlin stated: He talked with an employee named Lynn Blair: Aloise was not with him at that time. Blair was alone, in charge of the photography shop, and McLaughlin stepped aside when customers came to the concession. Jakowitz approached McLaughlin and Blair after the former had been there about 5 minutes. When Jakowitz got within 3 feet of Blair. she became quite nervous. McLaughlin then left. As discussed supra, Jakowitz' duties frequently, each day, required that he visit all merchandise concessions. There is nothing in the record, however remote, to indicate or show that Jakowitz' visit to Blair's concession on July 26 was unusual, or for any purpose other than business. As- 95 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suming, arguendo, that Blair was "nervous" upon Jakowitz' arrival, that testimony is of no weight. Blair could have been "nervous" because she was not working as she should have been. Further, no physical manifestation was de- scribed by McLaughlin. The statement about nervousness is not credited. McLaughlin said nothing about a guard at or near the photography concession.s This allegation was not proved. G. Alleged Surveillance by Security Guards Paragraph Vl(g) of the complaint alleges that, on or about July 29 and 30, certain unidentified security guards engaged in surveillance of employees' union activity. McLaughlin testified that he went to the park on July 29 with Aloise, to talk with employees. He said nothing about surveillance on that date. Aloise testified that, when he and McLaughlin went to the park on July 29, they went first to the main restau- rant. 3 Aloise testified: They were at the restaurant 5 or 10 minutes, during which time Rogers was present about 20 feet away on the other side of the counter. Aloise then left, and went to another food concession, about 70 or 80 yards away. Rogers came to the latter food concession a minute or two after Aloise arrived. Aloise talked with the employ- ees at the second food concession a minute or two, but left as soon as Rogers arrived, since the employees appeared nervous and hesitant to talk. Aloise then went to a push- cart, 40 or 50 yards away, and talked about 5 minutes with the operator, Kevin Scheier. Aloise then started toward an- other area of the park and, after walking a short distance, turned and observed Rogers talking with Scheier. Rogers was wearing a straw hat and white sweater.14 After talking with Scheier for I or 2 minutes, Rogers looked in Aloise's direction, then left. Aloise returned and talked briefly with Scheier.' 5 Rogers testified that he never engaged in surveillance of any union representative and that he never visited any con- cession stand to ask any employee if he had talked with a union representative. Rogers also testified that he never wore a straw hat in the park.' 6 Rogers was an unusually convincing witness, as dis- cussed supra. He is a college student and no longer works for Respondent. His manner is quiet and his answers were prompt and forthright. His account of July 29 is credited. Aloise's recitation relative to Rogers' alleged surveillance is discredited in its entirety.' 7 12 McLaughlin said he never saw a guard accompany either Jakowitz or Rogers in the park He said on the two occasions when Jakowitz came near. "there were guards in the vicinity" There is nothing to show that the guards were doing anything improper McLtaughlin said he knew the positions held by Jakowitz and Rogers. 3 Aloise said he may have gone alone to the restaurant. 14 Aloise said Rogers was wearing the straw hat at the second concession. but not in the main restaurant. i' IThe subject of the alleged conversation between Aloise and Scheier is given no weight Scheier was not made available as a witness for cross- examination. 6 The complaint does not allege surveillance by Rogers on July 29. 17 Aloise testified that he and Rogers had seen each other prior to July 29, many times in the main restaurant, and that he had seen Rogers, at least once. at every food concession in the park, It is clear that Aloise knew Rogers' duties required his presence throughout the park. Stacey Ann Nicholson formerly was employed by Re- spondent as a counter waitress at the main restaurant. She testified that, on a morning the date of which she did not definitely identify,'8 she was working at the counter while approximately 100 patrons were in the restaurant. She said Aloise came into the restaurant and posted a union notice on the counter window restricted to the posting of menus. Nicholson said she reached out from behind the counter and removed the notice, after which Aloise engaged her in a loud and angry conversation. She said the conversation and the incident were distrubing and interfered with her work, which was heavy at that time. Nicholson said she told Aloise to leave her alone, after which she turned and left. She reported the incident to her supervisor, and she also reported it to Demetrios the following day. William Allen, an employee of Respondent, corrobo- rated Nicholson's account of the incident of July 29, and said the matter upset patrons of the restaurant and employ- ees who were on duty or eating. He said Nicholson was so upset by the incident that she spilled two drinks she was serving. Allen said he left the restaurant and telephoned Demetrios, Jackson, and Siriani. By the time he returned to the restaurant, Aloise had left the counter and was talking with McLaughlin. Demetrios testified that he talked with Nicholson about the incident. Nicholson and Allen were very credible witnesses. Ni- cholson no longer works for Respondent-she also is a college student. Nicholson, Allen, and Demetrios' versions of the incident of July 29 are credited. Aloise continued his account of events by stating that, when he and McLaughlin attempted to enter the park on July 2 9,19 they were not allowed to pass through the gate at the service entrance they customarily used. Aloise testified: When he and McLaughlin started to enter through the gate as they usually did, a guard said he had orders not to allow them in. The two representatives asked to talk with Dem- etrios. The guard called Demetrios on the telephone at their request, and a few minutes later, as Demetrios was leaving the park, they talked with him and asked why they were being prevented from entering. Demetrios said for several reasons, including an argument with an employee on the 29th.20 The two representatives were permitted to go into the park "later that day." 21 McLaughlin testified: The gate guard told him and Al- oise on July 30 that they were not allowed to enter the park "that day." They asked to speak with Demetrios, and talked with him about 20 minutes later, outside the em- ployee entrance. Demetrios said the reason for keeping them out was an argument in public that McLaughlin had with an employee the preceding day. McLaughlin denied having such an argument,2 2 and Demetrios let the two rep- 68 Based upon the record as a whole, it is clear, and is found. that the date of this incident was July 29. 19 This date clearly was misstated by Aloise. McLaughlin fixed the date as July 30. which, based upon the record, is found to be the correct date. Aloise denied that he or McLaughlin ever had been in an argument with an employee. I2 Aloise later said they were allowed in immediately after their conversa- tion with Demetrios. 22 McLaughlin said he had a friendly, and private, conversation with a restaurant employee, at the restaurant, on July 29. 96 MARINE WORLD USA resentatives in, saying, "Fine. Go on in." They then talked with employees and distributed literature at various loca- tions, including the main restaurant. No guards were pres- ent during the distribution. McLaughlin testified that, in March, he and another union representative talked with Demetrios about going into the park for campaign pur- poses. Demetrios gave them "blanket approval" to come in, but subject to unioh representatives not interfering with the public, or with performance of duties by employees. McLaughlin testified they understood those provisions. Demetrios testified: After the RC petition was filed, he talked with representatives of the Union and the Employ- ees Union and told them there was to be no interference with the public's enjoyment of the park.23 He later reiter- ated that rule to representatives of both unions. After he talked with Nicholson about the incident of July 29, he was satisfied that the Union's representatives were involved. He gave instructions to the security guards, through his secre- tary, that the next time the Union's representatives came to the park, they were not to be allowed in until Demetrios talked with them. The next day he was notified that the representatives had arrived. He was leaving for lunch, and talked with McLaughlin and Aloise at the back gate as he was leaving. He told them they had violated the rules, and they discussed the incident for about 5 minutes. Immedi- ately thereafter, the representatives were permitted to go into the park. Edward Campbell, the gate security guard, testified that he had been told that a "hassle" had taken place in the park, and that he would have to obtain clearance for the union representatives to get in. The next time they arrived he called Demetrios' secretary. Demetrios came out within 5 or 10 minutes and a conversation ensued, which Camp- bell did not hear. After the conversation, which lasted 5 or 10 minutes, Demetrios gave the representatives permission to go in. Discussion It is clear from the record thus made that McLaughlin and Aloise were free to enter the park at any time during open hours, and to campaign at any location within the park. The only time their entry was delayed was on July 30 and that delay was occasioned solely by the argument at the restaurant on July 29. Clearly the delay was only for Demetrios to have an opportunity to reiterate, with good reason, the condition that public enjoyment of the park was not to be interfered with by campaigning. McLaughlin and Aloise came and went at will, both before and after July 30. No guard had been instructed to engage in surveil- lance of the Union's representatives nor were guards told that those representatives no longer were permitted to en- ter the park. There is nothing in the record to support this allegation, or any violation of the Act related to such an allegation. H. Alleged Statement by, Demetrios Paragraph Vl(h) of the complaint alleges that, on or 23 Aloise testified to the same effect. about August 5, Demetrios informed employees that the Union held up a wage increase. On August 5 Demetrios addressed a memorandum to "All Employees," a copy of which is General Counsel's Exhibit 4. Included within the text of the memorandum is the sentence, "They (note: Teamsters) have held up in- creased wages, which I offered, for the apparent reason that they could not take full credit." The election was held on August 6 and 7, thus the only question is whether Demetrios' statement is a violation of the Act. Discussion For reasons given in section III, B, supra, Demetrios' statement on August 5 was a violation of Section 8(a)(l) of the Act. Respondent's intention to influence the election by the August 5 statement is apparent for two reasons: (a) the statement, which substantially is the same as the one made on June 2, was made the day before the election;24 (b) the reason given by Respondent for the Union's refusal to accede to the proposed raise is Respondent's conclusion. There is nothing in the record to show that the Union's refusal was, in the words of Demetrios, that the Union "could not take full credit" for the raise. 1. Alleged Granting of a Wage Increase Paragraph Vl(i) of the complaint alleges that, on an unknown date in December, Respondent granted employ- ees a wage increase in order to induce employees to refrain from supporting the Union. Counsel for the parties stipulated that Respondent granted its employees a wage increase in December 1976. Counsel also stipulated to the entry into evidence of Re- spondent's Exhibit 3, which states in part: In the meantime, in order to alleviate the suffering of the employees and in order to protect the business of the employer, the employer intends to grant a gen- eral wage increase in the amount which was offered in negotiations last spring. Placing this increase into ef- fect will not be considered by the employer to be pre- judicial to the bargaining stance of whichever union should ultimately be certified, and it will not preclude bargaining concerning the amount of the increase or whether it should be made retroactive. It is unfortu- nate that consent of both unions has not been ex- pressed, but the refusal of consent by one union can- not be permitted to block action that is essential to enable the employer to hold on to the work force and essential for the employees who have suffered two years of inflation without a general increase. The raise must be given because of the overriding business and economic reasons. Discussion It is clear that the results of the election on August 6 T24 hls fact clearl) br hngs Ihe 3tatement of August within the la-; of ,ktCorpr.tcJ l.ngmeado. Srtme ( o. Inl, wupra 97 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 7 were, or could have been, influenced by Respon- dent's statements on June 2 and August 5, discussed above. Under such circumstances, the election was not the free choice of employees necessary under the Act. Objections to the election were timely filed by the Union. The granting of a wage increase in December therefore was given while a question of representation existed, and objections were pending, and is a violation of Section 8(a)(l) of the Act.2 J. Alleged Statement by Frvette Paragraph Vl(j) of the complaint alleges that, on an unknown date in February, Fryette promised an employee a wage increase if the employee would refrain from sup- porting the Union. Robert Haedrick, a former rank-and-file employee of Respondent, testified that, sometime between February 22 and 28, George Fryette had a meeting on Respondent's premises attended by Fryette, Haedrick, and employees Jones, Davis, and Bower. Haedrick said Fryette talked at length about the disadvantages of voting for the Union and the advantages to be obtained by dealing directly with Re- spondent and Mike Demetrios. Haedrick testified Fryette stated: He said if we went with Marine World that Mike Demetrios and whoever they had a meeting with would give us-we would get 15 percent retroactive pay from the date I was hired there, we would get a dental plan, and the Teamsters were offering us noth- ing. Fryette denied that he met with Haedrick, Jones, Davis, and Bower in February 1976. He also denied promising employees a wage increase, discussing union matters, or supporting an employees union. Harvey E. Davis denied that he attended the meeting alleged by Haedrick. He said Fryette never assembled the four employees named by Haedrick and that Fryette never said in his presence that the employees should break away from the Union nor did Fryette ever promise any benefits to employees for breaking away from the Union. Fryette's position at Marine World is an unusual one. His title is coordinator of special effects and graphics, and he is in charge of the prop shop. His duty primarily is to prepare show props, displays, and effects. He does not have a staff of workmen, but rather, uses the services of tradesmen and workmen assigned to him on a temporary basis by departmental supervisors. When he needs plumb- ers or carpenters to work on a prop or display, he requests the men from appropriate supervisors. He has authority to hire, within a budget figure established by Demetrios, and he directs all work assignments of employees assigned to him, thus, clearly, he is a supervisor, even though at times he may have no one to supervise. Two things initially give rise to questions concerning the meeting alleged by Haedrick. First, there is nothing in the record to show any relationship between Fryette and union 25 Monarch Tape Duplication, a Division of Monarch Record Manufacturing Corp., 205 NLRB 520(1973); Gabriel Mfg. Co.. Inc., 201 NLRB 1015 (1973); United Packing Company of Iowa, Inc., 187 NLRB 878 (1971). activities other than the testimony of Haedrick. Fryette works throughout the park; he comes into daily contact with a wide-ranging group of people, yet only Haedrick attributes any remarks about the Union to Fryette. Fur- ther, Fryette is not a member of management and has no authority other than the limited amount required by his own work. Certainly he has no authority to promise a gen- eral wage increase or benefits. No interest in union activi- ties is apparent, so far as Fryette is concerned. Second, Fryette's limited and transitory relationship with employ- ees assigned to him militates against a conclusion that he would call together a group of employees temporarily as- signed from other departments to campaign and to prom- ise benefits. This allegation simply is inconsistent with Fryette's position with Respondent. Davis was a quiet, sincere witness who gave prompt an- swers to all questions. He was impressive and convincing, and his testimony is credited. Haedrick's testimony, stand- ing alone against a background of doubt, is inadequate to overcome Davis' presentation and Fryette's denial. This allegation is not proved. K. Alleged Aid, Assistance, and Support to the Employees Union Paragraph VII of the complaint alleges that, since on or about August 4, Respondent has given aid and assistance to, and has supported, the Employees Union by, on or about August 4, permitting officers and representatives of the Employees Union to solicit membership while ordering union officers and representatives to leave its premises, thereby preventing the Union from soliciting membership. The complaint thus is very narrowly drafted, and the intent to do so was stated by General Counsel at the hear- ing. The complaint is addressed to a meeting Demetrios held with Respondent's employees on August 4, and events thereat. However, the meeting cannot be assessed in a vac- uum, therefore discussion of this allegation goes well be- yond events at the meeting. Demetrios, in writing, called a meeting of all employees on August 4 at 7 p.m., to be held at the main restaurant. Prior to the meeting McLaughlin sent a telegram asking permission to attend the meeting, although he knew the meeting was for employees only, but Demetrios refused permission. 26 On August 4 McLaughlin called the chief of police of Redwood City. The chief was out, and McLaughlin talked with his secretary for about 10 minutes. McLaughlin testi- fied: I told her that I was going to visit the park that evening, that because of some incidents in the previ- ous days we wanted to make sure that if the police called they were informed that this was a question of labor dispute at the park, and that if the police were to come they would ask for me-I would appreciate that. It was things of that general nature. 27 26 This statement is from Aloise's testimony. 27 This testimony conclusively negates McLaughlin's earlier testimony that neither he nor Aloise ever argued with an employee at the park, or otherwise caused any disturbance there. 98 MARINE WORLD USA McLaughlin further testified: He and Aloise went to the park in the afternoon, leafletted. and visited with employ- ees at various locations throughout the park. Aloise was distributing leaflets to employees at the front entrance of the restaurant in the late afternoon, and McLaughlin was distributing at the rear entrance. Aloise. accompanied by a security guard, came to where McLaughlin was standing and said the Redwood City Police had asked him to leave. The two representatives then had been distributing leaflets at the restaurant approximately 30 to 45 minutes. After a brief protest and a short conversation, the two union repre- sentatives left the park. McLaughlin said they left about 6 or 6:30 p.m.28 Aloise said they left as the employees were gathering for the meeting. Mike Turturisi. a police officer of Redwood City. testi- fied that his supervisor assigned him and another officer. Gary Harm, to duty in the park the evening of August 4. He testified: The two officers were told a meeting was scheduled for 7 p.m. and that "there possibly could be a problem." The two arrived at the park about 6:15 p.m. and reported to Jackson, as they had previously done when they went to the park on duty. The three then went to Demetrios, who appeared surprised at their presence. The two officers said they had been ordered to the park, and Demetrios said there was going to be an employees' meet- ing. The two police officers and Jackson went to the restau- rant and sat outside, about 30 feet from the restaurant. about 6:30 or 6:40. The two officers asked Jackson if the park was closed, and Jackson replied yes. About 6:55 or 7 p.m.. Turturisi saw two men handing out leaflets. He talked with Jackson. and: Mr. Jackson had indicated to me the park was closed, they were going to have a closed meeting an employee meeting, and he wished that they would leave the park as the rest of the patrons of the park had left and it was now closing time. They' were in- formed by written matter and orally of the penal code section which states that upon request they had to leave the park, and they were informed. There were some words exchanged. They said that they had the right to be in the meeting, and I said it's an employees' meeting. And I asked Mr. Jackson, "Is that correct? An employees' meeting?" He said yes. And I said, "Well, then you're just going to have to leave the park because they do not wish your presence here." Q. And then did they leave? A. Yes. No arrest or threat of arrest was made. Harm gave a similar version of the evening's events. Jackson testified much the same as Turturisi and Harm, but added that he cleared the park of visitors before return- ing to the restaurant just prior to the meeting. Jackson said 2B McLaughlin and Aloise attempted to establish through their tetimnons that the park was open and that members of the puhlic were present at the park when they were asked to leave. That testimony is discredited. since it is clear from the credited testimon) of Demetrios,. Jackson. and two Redwlood City police officers, and from Resp Exh. 5, that the park was cloh,ed on August 4 (Wednesda? ) at 6 30 p m.; that the park Aas cleared oif ' litors bh, 7 p.m.; and that the emploees' meeting started it 7 p m. he was surprised to see the two officers when they arrived, since he did not know in advance that they had been or- dered to the park. Jackson said he talked with Aloise after the park was closed and asked him to leave: Aloise did not want to leave, and Jackson asked Turturisi to talk with Aloise. which he did. Jackson testified that it is customary at closing time to clear the park of all visitors, whether they are patrons or business visitors. Discussion General Counsel contends that Respondent removed, or caused to be removed, the linion's representatives from the park on August 4. thus preventing solicitation by the Union of Respondent's employees, simultaneously while permitting representatives of the Employees Union to re- main on the premises and solicit. Adoption of that thesis would require a conclusion of intent by Respondent, to interfere with solicitation by the Union's representatives. The facts do not permit that conclusion. Respondent's defense is persuasive, without reference to its general course of conduct prior to and after August 4. When that conduct is considered, the defense is conclusive. These facts either are acknowledged by General Counsel or are not in dispute: (a) The meeting of August 4 was announced by Respondent well beforehand, on July 29. and unmistakably it was a meeting for employees only. The union representatives had no right to attend. (b) McLaugh- lin asked for permission to attend, and was denied that permission. (c) McLaughlin asked for police assistance at the meeting, on the basis of incidents of "trouble" at the park a few days prior thereto, although he denied such incidents in his testimony. (d) The park was closed at 6:30 p.m. on August 4. and was cleared of visitors prior to 7 p.m. (e) Customary practice is to clear all visitors from the park after closing, including those there on business. (f) McL.aughlin and Aloise were permitted to, and did, distrib- ute union literature to employees until 7 p.m., or no more than 5 minutes before 7. (g) All, or nearly all, of Respon- dent's employees were in the meeting hall by 7 p.m. If any were not present, they were non-attendees, or were no more than a few stragglers. The park was clear of all visit- ors. (h) Union representatives in the past had not requested to, and did not, solicit after closing time. They left the park when all other visitors did. (i) There is no evidence, direct or indirect, that members of the Employees Union solicited on August 4. 0) There is no evidence, and nothing upon which an inference can be drawn, that McLaughlin and Aloise were asked to leave for any reason other than cus- tomary business practice. When events prior to and after August 4 are considered, the conclusion is inescapable that this allegation was not proved. Aloise testified: For several weeks prior to the election. he went into the park, alone, or with McLaughlin. or with some other union representative: he went wherever he wanted and talked with whom he wanted while in the park: he stayed in the park as long as he liked on each visit: no one told him he was restricted in any' way other than that he was not to interfere with the public. or with employees' duties: he visited the park everyday. 5 days per week, for 99 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several weeks; he was permitted to go into the animal area where visitors could not go; other than the July 29 incident discussed supra, he never was detained upon entry into the park; he never was refused entrance; he never was asked to leave the park other than on August 4, discussed supra; he went into the park on August 5 and 6 as freely as he had prior to August 4. McLaughlin testified in much the same manner, on this subject. Jackson and Campbell affirmed the freedom of the park enjoyed by all union representatives. Jackson and Campbell credibly testified relative to cus- tomary practice at all times, relevant herein, of security guards and use of the gates to the park. They outlined the system of daily logs, signature requirements, clearance re- quirements, occasional use of a locked gate, and duties of the guards. McLaughlin and Aloise attempted through their testimony to create an inference that the guard and gate system was devised, or used, to interfere with their activities. They left the record free from doubt-there is no basis for such an inference. It is abundantly clear that Respondent did not give pref- erence to the employees' solicitation efforts, vis-a-vis those of the Union. (a) Roberts credibly testified that the Em- ployees Union used Respondent's premises on one occa- sion, for a meeting in July. The Employees Union paid for use of the facilities. McLaughlin testified that the Union also used Respondent's premises (the main restaurant) on one occasion for a meeting in July. McLaughlin further testified that the Union was given permission to use the premises (a picnic area) on one other occasion for a meet- ing, although the premises were not used on that occasion, for cause not related to this controversy. (b) All employees are required to use the same basic entry procedures as visit- ors, i.e., they must be identified prior to entry (usually with badges). The Union's representatives were permitted to en- ter the park on the same basis, or perhaps somewhat more leniently, than regular visitors. (c) The Union was permit- ted to use the same bulletin boards as those used by the Employees Union. (d) Roberts credibly testified that he solicited on his own time, and that he and one other em- ployee (Bower) took 3 or 4 days off, without pay, during the campaign. There is no basis upon which to conclude that the Em- ployees Union was favored, supported, aided, or assisted, on August 4 or at any other time. Consequently, this alle- gation is found not to be proved. Objections to Election On January 30, 1977, the Union withdrew all of its ob- jections to the election, except those numbered l(b), 8, and 9 in its petition dated August 13. Objections l(b), 8, and 9 involve the same conduct al- leged to constitute unfair labor practices, and that conduct is discussed above. It is found that the record does not support Objections l(b) and 8, and that it supports Objec- tion 9 only to the extent described in section III, B, H, and I, above. As discussed above, certain of Respondent's conduct, occurring during the critical preelection period, precluded employees from exercising their freedom of choice in se- lecting or rejecting the Union, and constituted substantial interference with the election.29 I shall, therefore, recom- mend that the elction of August 5 and 6, in Case 20-RC- 13430 be set aside and that the case be remanded to the Regional Director for Region 20 for the purpose of con- ducting a new election at such time as she deems the cir- cumstances permit the free choice of a bargaining repre- sentative. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom, and from any like or related manner, infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectu- ate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. Marine World USA, Respondent herein, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Marine World Employees Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 4. By telling its employees that it could not grant them a wage increase because the Union failed to consent; by tell- ing its employees that the Union held up a wage increase; and by granting its employees a wage increase to induce those employees to refrain from supporting the Union, Re- spondent interfered with, restrained, and coerced its em- ployees in the exercise of their rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(l) of the Act. Provided, however, that nothing in this Order shall require or authorize Respondent to vary or abandon any wage increase or other benefits it has established for its employees after June 2, 1976. 5. Respondent did not, through alleged conduct, other- wise violate Section 8(a)(1) and (2) of the Act as alleged in the complaint. 29 Wilkinson Manufacturing Co v. N.L.R.B.. 456 F.2d 298 (C.A. 8. 1972). VCA Sterling Inc., 209 NLRB 961 (1974). 100 MARINE WORLD USA 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record of this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 30 The Respondent, Marine World USA, Redwood City, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees that it could not grant them a wage increase because the Union failed to consent; telling its employees that the Union held up a wage increase; and granting its employees a wage increase to induce those em- ployees to refrain from supporting the Union. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: 30 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Post at its Redwood City, California, facility copies of the attached notice marked "Appendix." 31 Copies 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 cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed to the extent that it alleges violations of Section 8(a)(1) and (2) of the Act other than violations of Section 8(a)(l) found herein. IT IS FURTHER RECOMMENDED that the election con- ducted on August 5 and 6, 1976, in Case 20-RC-13430 be set aside and that said case be remanded to the Regional Director for Region 20 to conduct a new election at such time as she deems the circumstances permit the free choice of a bargaining representative. l In the event that this Order is enforced b) a Judgment of a United States Court of Appeals. the words in the notice reading "Posted hb 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 t.abor Relations Board " 101