J. J. Newberry Co.

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. J. Newberry Company and Retail Clerks Union Local No. 991, chartered by Retail Clerks Interna- tional Association, AFL-CIO. Cases 19-CA-5546 and 19-RC-5986 March 15, 1973 DECISION AND ORDER On July 19, 1972, Administrative Law Judge' E. Don Wilson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent filed a brief in support of the Decision and also cross-exceptions and a brief in support of the cross- exceptions. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, J. J. Newberry Company, Missoula, Montana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the allegation in the complaint as to which no violation has been found is hereby dismissed. IT IS ALSO FURTHER ORDERED that the election held on November 18, 1971, Case 19-RC-5986 be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBERS FANNING AND JENKINS, dissenting in part: We agree with the Administrative Law Judge that the Respondent violated Section 8(a)(1) of the Act when (1) Store Manager Orlin Olson told employee Sherwood on October 1 that he had a tape recording of a union meeting; (2) Olson told Sherwood on October 20 that he had heard Sherwood's voice on a tape recording of a union meeting; (3) Olson told employee Solum on October 20 that he knew that a union meeting had occurred the night before; (4) Respondent Attorney Sykes asked employee Hershey to leave the November 16 employee meeting; (5) 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 In adopting the Administrative Law Judge's recommendation that we not issue a bargaining order, we do not rely on his conclusion regarding alleged supervisory taint Rather, we find that the Board's conventional remedies are sufficient to threatening that a certain employee who had re- ceived money from the Union would not be allowed to attend employee meetings; and (6) Olson interro- gated Christensen as to her feelings about the Union on November 28. However, we would find merit in the General Counsel's exceptions to the Administra- tive Law Judge's conclusions that Olson's November 17 campaign speech was not a threat that Respon- dent's store would be closed or moved if the Union won the November 18 election, that Respondent did not convey the impression of surveillance by saying that Hershey said many slanderous things about him at the union meeting, and that the Union's majority status was tainted by Supervisor Helen Angle's prounion activities; and to his refusal in view of the Union's majority status to recommend the issuance of a bargaining order based on Respondent's serious unfair labor practices, including Olson's November 17 threat to move the store or close it down. 1. On November 17, the day before the election, Respondent closed its doors to customers, and Store Manager Olson read his campaign speech to 28 or 29 unit employees. Olson stated in his speech that his comments would relate to the Thursday election and said that election could have an adverse effect on everyone. Olson stated: ... No union has or ever will tell Newberry's how or where it is going to operate its business. In fact as we told you yesterday the largest unit we had was located in New York City which was organized by the Teamsters-was closed for economic reasons and moved to Harrisburg, Pennsylvania-the union struck to stop us about this time last year-the strike frizzled and the facility was moved. Now let's talk about several of our stores-Cheyenne, Wyoming, wife's home town, A was organized and it was closed for economic reasons, the Springfield store election case has been in litigation for 16 months and will probably be in litigation for a couple of more years. Now let's talk about one of the Washington stores which the union has referred to-Belle- vue! !-the Bellevue store is being closed for economic reasons only! because we have lost a great deal of money there. The union talks about job security and this and that-well only a successful store which is partly the result of everyone working together can provide job security. The union certainly didn't provide job security at Bellevue-economics dictate and neutralize the effects of the only unfair labor practices found herein; namely, creating the impression of and engaging in surveillance , interrogat- ing one employee, and discrimuiatonly refusing to permit one employee to attend employees' meetings. Hence, a bargaining order is unwarranted under the tests enunciated in N LR B v Gissel Packing Co, Inc, 395 U.S. 575 202 NLRB No. 53 J. J. NEWBERRY COMPANY 421 required that the store be closed-the same thing has happened in nonunion stores. The Administrative Law Judge noted that Olson made many references in his speech to the closing or moving of other stores of Respondent which had been organized by a union, pointing out that such closings or moving were for economic reasons and that Olson pointed out that the same thing had happened in nonunion stores. He found that Olson made it clear to the employees that some of the chain's stores were closed for economic reasons whether union or nonunion. He recognized that these statements were made as part of an antiunion speech, but the employees were plainly told that the stores, union or nonunion, were closed for "economic reasons," and found no violation of Section 8(a)(1) in this part of Olson's speech. We disagree. While it is well settled that an employer is free to communicate to its employees any of its general views about unionism or any of its specific views about a particular union, N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618, it is equally well established that its communications must not contain a threat of coercion or reprisal, express or implied. Gissel, supra at 618. If the employer expresses his views on the effect that unionization may have in the future economic health of the company, his projec- tions must be very carefully phrased on the basis of objective fact. Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, fn. 20. If there is any implication that the employer may or may not take action solely on his own initiative for reasons unrelated to economic necessity and known only to him, the statement is no longer a reasonable prediction based on available facts but is a threat of retaliation based on misrepresentation and coercion and, as such, is without the protection of the First Amendment, Gissel, supra at 618. Any balancing of the rights of the employees under Section 7, as protected by Section 8(a)(1) and the proviso in Section 8(c), must take into account the economic dependence of the employees on the employers and the necessary tendency of the former, because of that relationship, to be alerted to intended implications of the latter that might be more promptly dismissed by one who was entirely disinterested. Beyond question, employees are particularly sensitive to rumors of plant closing and view such rumors as coercive threats rather than honest forecasts. We note that Olson prefaced this section of his speech with the statement "No union has or ever will tell Newberry's how or where it is going to operate its business." The only "economic" consideration cited by Olson to the employees as a reason for the closing or moving of the several installations of Respondent referred to was in each case the advent of the Union. We think this section of Olson's speech made it clear to the employees that the success of the Union in the election to be held the next day could, without more, cause Respondent to close its store or to move it to a new location. We would find that the Respondent thereby violated Section 8(a)(1) of the Act. 2. We would find that the Administrative Law Judge also erred in concluding that Olson did not violate Section 8(a)(1) of the Act when admittedly he told employee Hershey in early November that he had heard that Hershey had said many slanderous things about him at the union meeting. We think Olson's statement could only lead Hershey to believe that Olson was making an effort through his sources to inquire into what was happening at union meetings. Olson had no legitimate interest in internal union affairs, especially union meetings during the organizational campaign. We do not agree that Olson did not create the impression of surveillance by his remark because Hershey denied slandering Olson and knew that Olson's accusation was false. If Olson's remark to Hershey caused, or tended to cause, Hershey to believe that Olson was spying on union meetings, but receiving false information, Olson would nonetheless have violated Section 8(a)(1). We would find the effect of Olson's remark was to create the impression of surveillance of the union meetings and, whether or not he actually spied on union meetings, he violated Section 8(a)(1) of the Act. 3. The Administrative Law Judge found that the Respondent did not violate Section 8(a)(5) of the Act and that a bargaining order was not warranted. We do not agree that Supervisor Helen Angle's minimal prounion activities tainted the Union's otherwise valid and uncoerced majority status. Angle did engage in prounion activities in August and Septem- ber, but these activities appear minimal. She attend- ed only one union meeting where she spoke favora- bly about the Union and she delivered a union contract to employee Mary Lou Swann at Swann's request, placing the contract in Swann's mailbox at her home. Angle ceased her prounion activities in September, when Store Manager Olson directed her to remain neutral. Thereafter, except for writing a list of questions to be asked at a union meeting which she did not attend, Angle maintained her neutrality until the November 18 election. Throughout this period and until the Regional Director's Decision and Direction of Election on October 18, the Union was contending that Angle was not a supervisor and the success of that contention was in doubt. Angle told other employees that Olson had directed her to stay out of the union campaign because she was part of management. Thereafter, when employees asked her 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD how they should vote, she told them that she was neutral and how they should vote was up to them. On these facts, we cannot find that Angle's activities tainted the Union's majority status. The employees could not conclude that Angle spoke for the Respondent. She did not solicit authorization cards from other employees and there is no evidence that Angle's supervisory powers otherwise influenced any employee to sign a card.3 Therefore, contrary to the Administrative Law Judge, and the majority, we would find that the Union represented an uncoerced majority of the employees when it requested recogni- tion and bargaining. After the advent of the Union and particularly after it had attained majority status and requested bargaining, the Respondent committed serious unfair labor practices, including Store Manager Olson's threat to the entire complement of employees in his November 17 campaign speech that the Respondent might shut down the store if the Union won the election. In our opinion, the Respondent's unfair labor practices were so extensive that they had the tendency to undermine the Union's majority strength and impede the election process. We find it unlikely that the lingering effects of the Respondent's unlawful conduct would be neutralized by resort to conventional remedies which would insure a fair rerun election. We believe that the employees' sentiment, once expressed through the authorization cards, would on balance, be better protected by the issuance of a bargaining order.4 Accordingly, we would find that the Respondent violated Section 8(a)(5) of the Act and would order it to bargain with the Union. 3 See WKRG-TV, The, 190 NLRB No 34. 4 N L R B v Gissel Packing Company, Inc, supra, see also WKRG-TV, Inc, supra TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner: The charge in this case was filed by Retail Clerks Umon Local No. 991, chartered by Retail Clerks International Association, AFL-CIO, herein the Union, on November 24, 1971, and the Union filed objections to election on November 24, 1971. Based thereon, the General Counsel of the National Labor Relations Board, herein the Board, issued an order consolidating cases and a notice of consolidated hearing on objections to election and complaint on February 24, 1972, the complaint being issued the same date. The complaint I alleged that by various acts and conduct, J. J. Newberry Company, herein Respondent, violated Section 8(a)(1) and (5) of the Act, and even if no violation of Section 8(a)(5) were found, the complaint seeks an order that Respondent bargain with the Union. Respondent timely answered all allegations of the complaint, as amended. Pursuant to due notice, a heanng was held before me in Missoula, Montana, on March 28, 29, and 30. The parties fully participated. General Counsel and Respondent filed briefs on May 30, 1972, and they have been fully considered. Upon the entire record2 in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent is a Delaware corporation which operates a retail store in Missoula, Montana, the only location here involved, and elsewhere. During the past year it purchased at least $50,000 worth of goods and services directly across State lines, and its gross receipts exceeded $500,000. At all times material, it has been an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, the Umon has been a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The complaint alleges and the answer denies that Respondent, through Store Manager Olson, through a teacher named Luft, and through its attorney, Charles Sykes, comnutted a variety of violations of Section 8(a)(1) of the Act. The alleged violations included surveillance, interrogation about union activities, threats of discharge or that Olson would lose his job if the Union were voted in, the giving of a speech by Olson immediately prior to the election in which he allegedly made a variety of threats and promises and a statement that an employee allegedly in the employ of the Umon would not be allowed to participate in store meetings of employees, and the "ejection" of an employee from an employee meeting in the store, conduct- ed by the store, by the store's attorney, Sykes. The complaint, in paragraph 15, as is not unusual in complaints from this Region, pleading law, alleges also that a bargaining order is required under the so-called Gissel doctrine. It is separately alleged that Respondent violated Section 8(a)(5) of the Act in that it unlawfully refused to bargain with the Umon. B. Some Observations Numerous violations of Section 8(a)(1) of the Act are set forth in the complaint and it was amended in this regard at the hearing, without objections. Numerous witnesses testified in greater or lesser detail. Amost at the end of a rather long hearing, I reminded counsel for General Counsel that the complaint as amended had many allegations, and that I did not intend to search the record i Amended at the heanng 2 General Counsel's unopposed motion to correct the transcript is granted I have marked it TX Exh I J. J. NEWBERRY COMPANY to find out whether other matters, not alleged in the complaint as amended at the hearing, might be unfair labor practices. He was advised as I am sure he well knew, that it was up to him to move further to amend his complaint, although I might find such motion came too late in the hearing. General Counsel forthrightly observed that he was thinking "really it is too late.' 13 Herein I am confining myself to the issues raised by the pleadings as amended. C. Background In August 1971,4 Union Representatives Viola Hill and Lonny Mayer, in particular, began organization efforts at Respondent's Missoula store and obtained a majority of authorization cards from Respondent's employees by August 27,5 at which time they asked the store manager, Olson, an agent and supervisor of Respondent, to recognize and bargain with the Union as the exclusive representative of the store's employees. For various reasons, Olson refused to do so. On August 30, the Union renewed its demand in writing, and filed a petition for an election in Case 19-RC-5986. After a hearing, the Regional Director issued his Decision and Direction of Election on October 18, in which, among other things, he determined that Helen Angle was a supervisor within the meaning of the Act. The election was held on November 18. Respondent and the Union each received 16 votes, there being no challenges. Timely objections were filed by the Union on November 24. D. The Facts 423 of great interest to the employees, and the fact that there is no probative evidence that discussing pro or con union matters was forbidden, I infer as simply natural that employees in the store, as occasion prompted or permitted, discussed the merits or demerits of the Union's drive and the upcoming election. There is some testimony to this general effect. I think it most probable that the times and dates of union meetings were common knowledge among all employees, including those who were unfavorable to the Union. With about 30 employees and at least 5 supervisors, I cannot find Olson was kept in the dark about union activities and did not have a good guess as to the sympathies of most of the employees for or against the Union. Thus, I find it most probable that he knew, in most, if not all, instances when union meetings took place. On the stand, Olson appeared to be an outgoing and friendly type of person. There is not inconsiderable evidence that he spoke to the employees in a friendly manner. Such leads me to infer that at least some employees, not sympathetic to the Union, volunteered to him information about union activities. I would not consider such to be "stool pigeons." I have no doubt that some union supporters did likewise, even though they may not have disclosed anything they might have considered confidential. It is in the light of this entire picture that I must look at some of the acts of Olson, alleged to be violative of Section 8(a)(1) of the Act. Union activity was not surreptitious or deviously concealed. For the most part the record discloses union meetings open ,to any employee, the open wearing of union buttons by perhaps one-half of the employees, and I must conclude that there were some and perhaps many discussions in the store about union activities in the past and to come by the employees. Many of the findings made herein depend upon resolutions of credibility. It is not unusual for a finder of facts to credit part of a witness' testimony and reject another part as not deserving of credit. That such is permissible and proper is too well-established to require citation. The most central figure involved in most of the alleged violations of Section 8(a)(1) is Olson. It must be noted that the store was comparatively small, with about 30 employ- ees, some of them being regular part time. Many of the union supporters wore union buttons on the outside of their clothing during working hours before the election. At least some of the union meetings were announced by the sending of letters to all store employees and other meetings were arranged by word of mouth. While there is testimony that the Union was not a subject of discussion among the employees at the store prior to the election, I find the contrary to be true. I do not mean that it was constantly discussed, but from the very nature of human beings as social animals and from the fact that at least there appears to have been a vigorous campaign to win the support of the employees, and the fact, as previously noted, that this was a small store, and the fact that having or not having a union as exclusive representative must have been a matter 9 Tr., 665-666. 4 Hereinafter all dates are 1971, unless otherwise specified. 5 It is important to note that one of the earliest signers was Helen Angle, an area manager, alleged in the complaint to have been an agent and supervisor of Respondent "at all times material herein ." Her rather 1. Alleged unlawful interrogation of Mary Mace by Olson Olson affirmatively answered a question as to whether he had ever asked employees if they attended union meetings. General Counsel offered testimony of employee Mary Mace that on September 3, in the store's freight room where she worked, she volunteered to Olson that it was her mother'se birthday and said, "That is nice, a union meeting and my mother's birthday." Olson laughed and asked which she planned to attend. Mace naturally replied, "The birthday party."7 From time to time thereafter Olson asked her if she had attended a union meeting. Usually she had not made up her mind because, as noted above, she spent most of her nights with her mother. When asked, her mind was never really made up. The only date of an inquiry by Olson which she could specifically remember was September 3. Sometimes she initiated the conversa- tions about attendance at union meetings. Usually she would say to Olson, in substance, "Gosh, there is going to be a union meeting tonight and I really don't know how my mother is. I think I will go there and see how she is. I don't know whether I will go to the union meeting if I am widespread, though not too lengthy, prounion activities will be discussed later herein, particularly in connection with the Union's majority. 6 Her mother had been ill for some time, and was in a resthome, Mace spending most of her nights with her mother. 7 The whole family attended. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD staying with her all night." Sometimes, Olson would initiate the conversation by saying in substance that there was another union meeting scheduled that night and was she going to the meeting or would she stay with her mother. Most of the times it was she who volunteered and initiated these conversations. She was worried about her mother's condition and, as she testified, "You only have one mom." General Counsel contends that by testimony, abpve substantially summarized, he proved that Olson violated Section 8(a)(1) of the Act by asking Mace on September 3, if she were going to attend the umon meeting that night. I find he has failed to prove interference, restraint, or coercion, in the circumstances existing at the store, particularly with respect to Mace, by substantial evidence. This was an innocuous inquiry prompted by Mace's volunteered statement of her dilemma. I believe Olson would have perhaps been rude 8 had he ignored or brushed off her obviously friendly comment. If he had asked her whether she intended to visit her mother on her birthday and received a reply, he would have had the same information. I have carefully reviewed General Counsel's arguments in his well-composed brief but I remain convinced that Olson did no more than make a polite noncoercive inquiry of a lady who initiated conversation with him. Note that Olson merely inquired as to how she herself had resolved the problem she presented. I do not find in this record that General Counsel has proved by a preponderance of the probative and substantial evidence that prior to the election union meetings were a matter of secrecy from Respondent or that employees, in general, were reluctant to discuss normal and routine union activities. I find he has failed to prove Olson violated Section 8(a)(1) of the Act in this instance. 2. The alleged unlawful threat to employee Don Weber by Roger Luft, Weber's teacher, under a program known as DECA Don Weber was a part-time employee of Respondent who was enrolled in the DECA program at the city high school. Under the program, work was part of his study program. Obviously, as an employee he was under the supervision of the store's supervisors. As a student, Luft was his teacher. As a teacher, it was part of Luft's job to attempt to locate his students in jobs in the community. Luft located him at Respondent. It could have been any of a wide range of employers. Luft was not subject to the direction or supervision of Respondent. His relationship with Weber was that of teacher and pupil, having located a job for Weber with Respondent and having regularly followed his work progress, such being a factor in any grade Weber would receive as a student. Weber's demeanor did not make a favorable impression on me. Although under subpena by General Counsel and available, Luft was not called to testify by General Counsels Weber testified that about September 9, Luft, not an employee of Respondent, said he heard the Union was trying to organize the store. Weber allegedly said he guessed that was so and asked Luft what he should do. Luft allegedly said it wouldn't be wise for Weber to get involved with the Union because the DECA program could be jeopardized and Weber could lose his job. General Counsel makes much of the fact that Luft refers students to employers for employment and discusses such students with management, and Olson relies on Luft's recommendation when he takes on a student for employ- ment under the program. It is obvious that an employer would be reluctant to hire a student Luft described as a "dumb ox or possessed of criminal or violent tendencies, and might be eager to employ and try out a student whom Luft described as a "paragon of virtue, fidelity, zeal and all-around ability." That Olson would give heed to the representative of a high school, a teacher working under the DECA program, or that Olson would rely on such person's good recommendations in deciding to help a student under such program is a far cry from proving that Luft was either a supervisor or agent of Respondent. The record abounds with testimony as to a meeting between umon officials and school representatives.10 Testimony of Hill and Mayer, officers of the Charging Party, may well be compared with the testimony of Pearl Downing, an officer of another umon, and J. Jeffrey Dietz, an official of the city's high school district. I find Hill and Mayer tended to gild the lily in behalf of General Counsel's case. I find the record barren of probative and substantial evidence that Luft, in any way, shape, or form was a supervisor or agent of Respondent or that Respondent was under any obligation to disavow anything Luft might have said to anyone about anything. Luft and Respondent simply had interests in the same person, one as an employer and the other as a teacher. Olson wanted a good employee for Respondent's interest. Luft wanted a good student whose learning and education partly came from working for some employer, and this for the high school's interest. Their interests were not communal but coincidental. Luft's recommendations to an employer differed not at all from those of an employment agency or the Department of Human Resources Development or a similar source of referral. That Luft constantly checked on Weber's or any other student's performance on the job, merely demon- strates Luft's proper interest in his students, as a teacher, and not as an agent of Respondent. It is only natural that Luft would check with Respondent as to the availability of employment for his students. I am sure he did so with many employers. It was part of his job as a teacher. It is no indication he was an agent of Respondent. So, too, it was part of his job to cooperate with an employer in evaluating and improving, if possible, a student's job performance. He would not be much of a teacher under such program if he failed to do so with any employer or student. That he would relay to one of his students the employer's criticism of the student's work is what I should expect the teacher to do and it would be no indication to me that he became an employer's agent. He would be acting as a teacher under the program. Again, that a teacher involved in such a program would rely to some extent on an employer's appraisal of a student's job performance would be 8 Contrary to his nature as he appeared to me on the stand wished or deemed it necessary 9 Of course, Respondent could have called Luft as a witness if it had 10 Including Luft J. J. NEWBERRY COMPANY 425 expected of any teacher involved in such a program. In no way is it an indicium that the teacher is an agent of the employer. I permitted much blatant hearsay testimony from General Counsel's witnesses, having the mistaken belief that it would all have some semblance of competen- cy with the production of Luft himself, who was present and about the hearing room to the knowledge of General Counsel for many hours, presumably in response to General Counsel's subpena. I find that General Counsel has failed to establish by a preponderance of the probative and substantial evidence that Luft was in any way an agent of Respondent or that the latter had a responsibility to disavow anything Luft may have said. Indeed, I find no substantial evidence that Respondent knew what Luft might have said to Weber. Without respect to the above, I observe that Weber testified regarding Luft's alleged threat, that Luft told him that all he was saying to Weber was Luft's "own personal opinion. " It should be noted further that with respect to Luft's alleged threat, Weber swore he was "pretty sure" that Luft told him he had never talked to Olson about the subject matter of the alleged threat. He added that he didn't remember what Luft said about Olson. I find General Counsel has failed to prove by a preponderance of the probative and substantial evidence that Respondent violated Section 8(a)(1) of the Act by anything Luft may have said to Weber." 3. The alleged unlawful threat by Olson to discharge Weber on about September 9, and Mace's testimony allegedly in corroboration thereof Weber testified that about September 9, in the store's freight room, Mary Mace being some distance from him, while a machine was in operation, Olson mentioned to him that if the Union would get into Newberry's, the DECA program could possibly be dropped and the students who were working for Respondent could lose their jobs.12 Two other of Respondent's employees were in the DECA program.13 Weber gave counsel for General Counsel a statement on December 6. Counsel for General Counsel impressed me as very able and zealous. If Weber had been so threatened with possible loss of his job in the event of a union success at the store, I have no doubt it would have deeply impressed Weber. I cannot believe he would not have told counsel for G%neral Counsel about it. The latter would certainly have incorporated such threat in Weber's affidav- it. The affidavit is a void in this respect. I genuinely suspect and find, not on suspicion alone, but on the probative evidence, in spite of Mace's so-called corroboration, later discussed, that Weber's testimony as to Olson's alleged threat of September 9 was nothing but a recent concoction by him, made out of whole cloth. In short, I do not credit 11 Counsel for General Counsel conducted himself, as did Respondent's counsel, in an able manner. I think it so unfortunate that so many witnesses were called to give so many pages of testimony, much pure hearsay and self- serving, as to some, when the available Luft was not called at least in an effort to simplify the entire matter. General Counsel had an affidavit of Luft which he courteously made available to counsel for Respondent . If Luft had earlier testified, there at least would not have been so much concern about the observance of Seder and Good Friday services. I have not the slightest it. While its not in his affidavit he allegedly told the Union's chief representatives about it before December 6. If such were true I am sure they or he would have told counsel for General Counsel about it by December 6. If they had, or one of them had, counsel for General Counsel would have seen to it that it was contained in Weber's affidavit. We have the picture of Weber not telling counsel for General Counsel about it on December 6, and yet testify that a threat to have him fined would not be forgotten by him. He testified the alleged threat of discharge made an impression on him, as one would expect, yet he did not tell counsel for General Counsel about it when the latter was investigating Respondent's alleged misdeeds. Weber testified he told Mary Mace about the alleged threat about 5 minutes after it was made. He testified the first time a representative of the Board learned from him about the threat was December 6. He immediately swore he told counsel for General Counsel. Then, afier being reminded of contradictory testimony, he swore that it was not until the day before he testified that he told this story to counsel for General Counsel. I pointed out to him that the February 24 complaint herein, refers to such an incident as he described. The witness then repeated that he told counsel for General Counsel about the alleged threat the day before he testified, when they went over his affidavit which made no reference to the threat. He then testified he may have told counsel for General Counsel about it earlier than the day before he testified. He then testified he at one time put into a statement, which he read afterwards and signed, facts about the alleged conversation with Olson in September. He testified it was in the December 6 affidavit. It was stipulated such was not in the December 6 affidavit. Weber admitted he was pretty well confused. Believing he was more than that, I declared a short recess for him to get a drink of water and relax. After the recess he repeated that he gave a statement to someone about the alleged threat of September 9. He couldn't remember to whom he gave it. He thought it was probably "in January or February maybe." He then thought he gave it to counsel for General Counsel. He wasn't real sure if he told him the threat occurred in September.14 When shown Respondent's Exhibit 1 for identification, he, testified it was a statement he gave to counsel for General Counsel on January 13, 1972. He testified he said nothing in there about the alleged threat of September 9. He swore he told "someone" that the incident supposedly occurred in September. He was with counsel for General Counsel in the latter's motel room for about 15 minutes on January 13, 1972, and counsel gave us indication of being in a hurry. He was not in a rush to get anywhere, nor, apparently, was counsel for General Counsel. He then testified that January 13, 1972, was probably the first time he mentioned the September 9 incident to anyone. He then doubt that counsel for General Counsel was attempting to try his case in the manner most favorable to General Counsel. In my view, as noted, he did not here prevail. 12 Weber started to work for Respondent before he became a part of the DECA program. 13 There is no evidence that Olson discussed cessation of the DECA program with these employees. 14 Note his prior unhesitatingly fixing the date as September 9. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified he "could" have told other people before that. He then testified counsel for the General Counsel was the first person he told about the incident. He saw him on January 13, 1972, he swore, because he hadn't included the September 9 incident in his December 6 affidavit. He guessed it was Mary Mace who caused him to remember the September 9 incident because he was talking with her about it one day and then he remembered the September 9 conversation. He again swore that Olson's statements of September 9 made "much of an impression" on him. Yet he swore he didn't remember ever telling the Union about the alleged conversation. He repeatedly swore the conver- sation with Olson was on September 9. He ended up swearing he was not sure of the date. Early in his testimony he fixed the date of his alleged conversation with Luft as September 9. He later testified the conversation with Olson was after the one with Luft. Bearing Weber's insubstantial testimony about Olson's alleged September 9 threat in mind, it is noteworthy that Kelly Kammerer,15 General Counsel's witness and a DECA employee of Respondent, testified that on the evening prior to the election Olson told her that if the Union won the election "it wouldn't affect the employees at all."16 When counsel for General Counsel took her on redirect examination she said she was "certain of that." She added she "was very certain." I have remarked on Weber's demeanor. The nature of his testimony, in light of the entire record, permits me to credit it not at all. He was much more than confused. I shall now consider the so-called "corroboration" of his testimony by Mary Mace. She said she saw Weber in a conversation with Olson.17 She didn't know the date. Some of these occasions, she testified, in response to a leading question, were in September.18 In answer to a leading question she testified one of the occasions was when the "pin ticket machine was running." 19 She testified she did not hear what was said by Olson and Weber. "All" she knows is that they were talking about the DECA program. Counsel for General Counsel tried to get Mace to "date that conversation in September." 20 All she could tell him was that it was "just after school." I elicited testimony from her that it was a few days after her mother's birthday party.21 I find this to be worthless corroboration of Weber's testimony, which, I find to be unworthy of any belief. I would not be surprised to learn or know that Olson and Weber ,had many conversations about the DECA program. Such in no way corroborates Weber's incredible testimony. It does not appear from the record that Weber reported the alleged conversation to Mace though just the two worked in the same area, and appear to have been on quite good terms, Weber taking his troubles to her and acting towards her as if she were his mother. I find counsel for General Counsel has failed to establish by a preponderance of the probative and substantial 15 A union adherent. 16 This, of course, would include DECA students. 17 1 am sure there was nothing unusual about that. 18 There were, not doubt, such conversations in every month 19 I would assume that's what it's for and what it does when in operation, probably everyday 20 She was his witness evidence that Respondent, through Olson, in a conversa- tion with Weber, about September 9, violated Section 8(a)(1) of the Act. 4. Olson's alleged threat to Mary Mace that if the Union won the election he would be let go or fired or discharged Olson admittedly told Mary Mace he might be trans- ferred if the Union came in. He testified he did not tell her that in such event he might be fired or let go or let out. Mace, after having read her affidavit, testified that about September 9, in the freight room, Olson said to her that if the Union went in, Olson would be the first one to leave, he would either be transferred or "let out" of Respon- dent.22 Although a lot of the girls wore union buttons at work and she had one, she never wore it. She received it from James Hershey, the leading employee union protago- nist. General Counsel offered General Counsel's Exhibit 31, a statement of Mary Mace, into evidence for the purpose of impeaching his own witness, at least with respect to part of her testimony. It was received for such purpose. I would understand that he was at least, in part, challenging her honesty. Olson appeared to me to be very frank in admitting that he told her he might be transferred if the Union won, since such was consistent with the big Company's past practices, as he had known them. He very definitely did not want to leave Missoula, which he loved and where he owned a home. I credit Olson's testimony that he told Mace he might be transferred if the Union came in. There is no evidence as to whether he gave her the reasons he had in his mind for having such an opinion. That he should have such an opinion, in light of his testimony, appears reasonable to me.23 I find counsel did not prove by a preponderance of the probative and substantial evidence, in the circumstances above stated and found, that Olson violated Section 8(a)(1) by stating his "opinion" that he might be transferred if the Union won. Kelly Krammerer, a DECA employee, who signed a union card on August 17, testified for counsel for General Counsel that on the night before the election, Olson told her that if the Union came in, New York would take over and "he would be out of a job." Such, in many circumstances, could be coercive because it might well cause employees to believe that if the Union should be successful, their jobs might be in danger. However, Kammerer specifically asked him if "that would mean that employees could lose their jobs and he said, no, it wouldn't affect the employees at all."24 Mace and Olson frequently had conversations during the course of her employment. I have read General Counsel's Exhibit 31 which counsel for General Counsel had Mace read and identify as one principally in her own handwrit- ing and written by her at the Union's request right after the 21 September 3. 22 Mace testified they were always having union discussions at the store. Questions would be asked by fellow employees if they intended to attend particular meetings. 23 1 find no need to set forth such testimony here. 24 See par 11(a) of complaint. J. J. NEWBERRY COMPANY Union lost the election. Many employees wrote their statements at the Union's request at or about this time so that the Union could support its objections or substantiate a charge of unfair labor practices by Respondent. I find that Mary Mace made no mention of any kind in this, her own handwritten statement, that Olson told her at any time that he might be either transferred or let out orfired if the Union won the election. Had she understood Olson to have told her that his own job would be in danger should the Union win the election, I am certain she would have written this in her own handwritten statement of Novem- ber 18 or 19, particularly since such would have been helpful to the Union. I have no doubt that at such time as she wrote her statement she was endeavoring to fully help the Union in its efforts.25 In an effort to invigorate Mace's testimony, counsel for General Counsel had her read her affidavit of January 12, 1971, General Counsel's Exhibit 32, for identification. (It is not in evidence). I do not find that her testimony that Olson told her he would be "let go" if the Union got in, especially in light of her testimony as a whole, preponder- ates over Olson's denial. I find his statement that he might be transferred was a permissible statement of his opinion, based upon his past experiences and knowledge of the Company's practices. It was in no way coercive. General Counsel's Exhibit 31 for identification was written by her at the Union's request in an attempt to support forthcom- ing objections by the Union to its loss of the election. Had this conversation taken place, I am convinced she would have narrated it in her statement. 5. Olson's alleged threat to Mary Mace on September 9 that if the Union got in the DECA program would be discontinued at Respondent's store After reading General Counsel's Exhibit 31 for identifi- cation, Mace testified that in the freight room, about September 9, she recalled having a conversation with Olson about the DECA program. Before she read the statement at the request of counsel for General Counsel she testified she didn't remember any conversation with Olson about the DECA program. She testified Olson "could" have talked to her about it. After reading her handwritten statement, when asked for the date of the conversation with Olson, she replied only that General Counsel's Exhibit 31 for identification didn't have a date of the conversation. I helped her lix a date of about September 10. She continued and testified Olson said "if the union went in the DECA program would be discontinued." She testified that was all that was said. She added such was said by Olson. On cross-examination, she testified Olson could have said the "program could be discontinued." She testified Olson said the program might be or could be discontinued. She was sure Olson did not say it would be discontinued. She then testified Olson and not she brought the subject up first, because she didn't have anything to say about it. She then remembered Weber had said his teacher had talked to him. She then testified she could have initiated the subject 25 Note that her statement is witnessed by Viola G. Hill, Secretary- Treasurer, Retail Clerks Local 991. 427 with Olson. She testified, "I could have because of Don's [Weber's] reaction after he came back from DECA everyday he had a problem with his teacher and it was always that he came to me to ask if things could really be done that way, that had been said at school." She then testified she could have brought the DECA situation up with Olson, she wasn't sure. She then took her time and testified she was `possibly confusing what he [Olson] had to say with something that Mr. Weber said" to her. She explained that Weber was given to much worrying and was sure he would "lose his job, flunk out of DECA." He was upset. She then testified that in light of the fact that Weber talked to her about his problems with the DECA program and what effect that might have on his job and as a result of having talked so much to Weber, she did not recall whether it was she or Olson who initiated a conversation about the DECA program. She then testified that as of the time of her testimony she really could not recall just what Olson said to her as compared with what Weber may have said. For a period of about 2 weeks, Weber was upset and not doing his job. Olson talked to him, " Because Don just wasn't doing his job. He was, well, worried, he was just sure that he was going to lose everything. Weber would say, 'Oh, I just know I am going to get a bad grade' or he flunked the test because he hadn't, he didn't know why." I find Mace's testimony to be too confused, fluctuating, and contradictory to permit me to find that General Counsel has proved with a preponderance of the probative and substantial evidence that Olson threatened her on or about September 9 or any other date. I note that having read to her from her November 18 or 19 statement, she was sure it was she who brought up to Olson the DECA program after Weber's coming to work upset. I later asked her when she first stated in any manner the statement she at least originally attributed to Olson. She replied, "It was after Don and I had the conversation he was so upset about, when he talked to his teacher and he came, and then for two or three days he talked about it, that he was sure he was going to flunk out of DECA, and then he would lose his job and his credits26 and that is when I went and talked to Mr. Olson about it and after I talked to Mr. Olson I talked to Don." Counsel for General Counsel was satisfied that at least part of Mace's testimony under oath should not be credited. I realize that part of a witness' testimony may be rejected and part properly accepted. The vacillating nature of Mace's testimony is such that I cannot select a part which preponderates toward the truth. She certainly was not sure on the stand, in her own mind, what if anything Olson said or she said or just what happened, when and where and with whom. I find General Counsel failed to establish by a preponderance of the probative and substantial evidence that Respondent violated Section 8(a)(1) of the Act with respect to Mace. 6. Olson created the impression of surveillance with Judy Sherwood I was particularly and most favorably impressed by the 26 Compare this with Weber's rejected testimony. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demeanor of Judy Sherwood. She would not testify as to events which she did not remember, even though she read her affidavit as to those events while on the stand. She could most easily have said her recollection was then refreshed but she would not do so. On the other hand, where her present recollection was clear she unhesitatingly testified contrary to Respondent's interests . I am certain that she was a truthful witness, indeed a refreshingly truthful one. She was frank. She was honest. She credibly testified that on one occasion Olson approached her and said she had been to a union meeting and she told him she hadn't. Olson told her he heard a tape (recording) and she repeated that she was sorry but she wasn't there, it was not she. The conversation took place at the jewelry counter in Respondent's store in the middle of October. The conversation with Olson was friendly. I have considered Olson's testimony in considerable detail and observed him most closely when he testified. I credit Sherwood's testimony in this regard without hesitation. She was 19 and attended the University of Montana. She recalled, on the stand, no other conversation with Olson about the Union. She obviously was not in fear of testifying against Respondent' s interests, although in the employ of Respondent when she testified. She also testified she had a conversation about unions and her family with Olson about October 1. She teed, but could not recall on the stand what was said by her or Olson. Her affidavit, General Counsel's Exhibit 28 was read by her. It did not refresh her recollection as to the contents of this conversation. She was certain there was one. She testified she swore to the truth of the contents of her affidavit and that it was true when she gave it and signed it. After carefully reading it while she was on the stand, she credibly testified its contents were true and cor' ct when she signed it and were still true. She testified credibly that as to one conversation with Olson, the facts as contained in the affidavit were true, but she still could not remember them. The part of the affidavit she swore was true, even though she could not then remember the facts, reads, "On one occasion, Mr. Olson said he understood I had been to a union meeting. I said that I had been at the union meeting. Olson said there had been quite a lot of discussion. I said there had been quite a lot of discussions and I thought everyone felt better after the meeting. Olson said he had heard a tape of the meeting. This conversation took place in the store while I was working. The date would be around the time my brother set his wedding date. No one else heard the conversation. The approximate date is sometime in October." Having read the above and having had it read to her, she still couldn't remember the events. I am certain she was not afraid so to testify especially in light of similar testimony with respect to another conversation with Olson. The conversation she couldn't remember occurred in the store's hardware section. The one concerning which she gave testimony occurred in the jewelry section. Her affidavit is in evidence as past recollection recorded. I credit the part quoted above, having carefully considered all of Olson's testimony, much of which I credit. She swore she could have made no mistakes in her affidavit, because then she wouldn't have signed it and swore it was true. I find the witness was meticulously careful and determined to tell only the truth. I credit the testimony and sworn past recollection recorded. General Counsel has proved by a preponderance of the probative and substantial evidence that Respondent, through Olson, twice created an impres- sion with Sherwood that he had union activities including union meetings under surveillance. 7. Respondent created an impression of surveillance in a conversation between Olson and Donna Solum (maiden name Kammerer) Solum, an employee of Respondent when she testified, credibly testified, in spite of any of Olson's testimony to the contrary, that about the middle of October, Olson came by her check out and asked her "if I had stayed out late with the rest of them, and I said `No' and he said `Then you must have been one of the ones that went home early.' " She credibly testified there was a meeting at the umon hall the preceding evening. After the union meeting they went to a pizza parlor. The meeting was 9 or 9:15 p.m. It ended at 10 or 10:30. They left the pizza place about 11:30 or 12.27 Even though union activities were not a matter of complete secrecy at the store, I find counsel for General Counsel by Olson's questions and conversations with Solum as herein found proved that Respondent created an impression of surveillance in violation of Section 8(a)(1) of the Act. 8. Olson allegedly created an impression of surveillance by telling Hershey on a day after the union meeting that Hershey had said many slanderous things about Olson at the meeting Olson admitted the above statement. Although I have failed to credit Olson's testimony in some instances, I was singularly unimpressed by Hershey's demeanor and find some of his testimony was knowingly false. He was the prime employee union leader. Hershey admittedly initiated this conversation by telling Olson he was not the one who brought the Union in or told them to organize the store. This was not long before the union election, and I have no doubt that at least some employees, perhaps antiunion employees, gossiped about current union activities. Olson asked Hershey why Olson should believe him. Hershey said he could see why Olson wouldn't but he just wanted to explain. It was then that Olson said Hershey had said many slanderous things about him at the previous night's union meeting, which Hershey denied. Olson stated he believed Hershey was trying to personally destroy Olson, but he loved him, as a Christian he loved Hershey. I do not find that this conversation between the chief protagonists in the store in the developing union drama, amounts to interference, restraint, and coercion. I do not doubt that at least by this time Olson had his at least voluntary sources of information, accurate or not, as to union activities and that a union zealot such as Hershey had good reasons to believe this to be a fact. It is quite 27 Par li(d) of the complaint was here amended without objection J. J. NEWBERRY COMPANY reasonable to find that Olson's statements to him were the result of sources of information readily available to anyone, whether true or false. I find they would not tend to interfere with, restrain, or coerce Hershey in any of his union activities or anyone else to whom Hershey might see fit to repeat them. By this time, from whatever source, accurate or not, reports of union activities must have been coming to Olson's attention daily, and I have no doubt that Hershey knew this and that every employee had good reason, at least, to suspect such was so. I do not ignore that this was a small store. The conversation here found to have taken place between Olson and Hershey did not create an impression of surveillance. Particularly in light of the fact that Hershey denied the truth of the report given by Olson, I conclude that Hershey may well have reasonably concluded that Olson had been the recipient of false information, with no reason for Hershey to believe that Olson solicited it, even though Olson might have believed it. There is no basis for my concluding that Hershey, or anyone else, would have concluded that the information Olson reported was obtained by illegal means. It was part of a conversation about the Union initiated by Hershey. It appears to have developed naturally. I find counsel for General Counsel has failed to establish by this conversa- tion that Olson violated Section 8(a)(1) of the Act by creating an impression of surveillance. Hershey may have believed throughout the union campaign that Respondent was keeping union activities under surveillance,28 but this conversation did not convey to Hershey an impression of surveillance, rather, that Olson had information as to what happened at a union meeting the night before which Hershey knew to be incorrect. Indeed, surveillance, according to Hershey, would have revealed that Olson was in error. I cannot find Hershey was left with an impression that Respondent had the union meeting under surveillance and found nonfacts rather than facts. Hershey would have concluded that Olson had been misinformed rather than that he engaged in surveillance. 9. Respondent unlawfully removed Hershey from a meeting of Respondent's employees Respondent through Olson and its attorney , Sykes, held a small meeting of Respondent's employees in the ladies' lounge on the store's second floor on the evening of November 16, 2 days before the election. Hershey and Weber went to the store in the evening, and were told by a supervisor, Burke, of the meeting, and he suggested they attend it. They went into the lounge and seated themselves at Olson's suggestion. There were at least five other employees there .29 Olson and Sykes left the room and shortly returned. Sykes patted Hershey on the back and said, "Hey bud, I don't think you're interested in what we have to say. Why don't you leave?" I realize the first statement was an expression of opinion and it was followed only by a question . This was in the presence of the employees. Hershey and Weber left . I find Sykes made it plain to them that as union adherents they were not welcome . He discriminated against them , or at least 28 In fact, illegal surveillance, including use of tape recordings by Respondent, was reported at union meetings. 429 Hershey, solely because of the latter's widespread and well- known union activities. Especially in light of Burke's invitation and Olson's greeting, Hershey and Weber had a right to remain at the meeting even if it were intended to be an antiunion meeting. Hershey had a right, as an employee to attend such a meeting even if it were only his interest to find out what, if any, antiunion activities Respondent might be engaging in. The subject of the meeting was the Respondent and the Union. There is no suggestion that Hershey disrupted this meeting. I find General Counsel has established by a preponderance of the probative and substantial evidence that Respondent violated Section 8(a)(1) of the Act by Sykes singling out the Union's foremost union adherent and causing him to leave a meeting of employees with Respondent where the Union and Respondent were to be the subject of discussion. Hershey's well-advertised union proclivities were the only reasons for his exclusion. At least in his brief, Respondent's attorney moves for the dismissal of that portion of the complaint which deals with this matter. He argues forcefully but I find not persuasively in this regard. I think it immaterial whether Hershey was interested in what took place at the meeting or whether Sykes could have changed his strong prounion views or whether he wanted to attend the meeting to see if he could learn anything which might help the Union in possible objections. That Sykes didn't yell or was in no way upset, has no relevance to this matter. Politely or not, he caused the exclusion of Hershey, and with him Weber, because Hershey was the known employee leader of the Union. This was outright discrimi- nation against Hershey because of his union activities. It is with deep reluctance that I find an able, cooperative, and gentlemanly lawyer, like Sykes, violated the Act. 10. Olson allegedly threatened Hershey with discharge on November 17 Hershey testified that about noon on November 17, Olson asked him why he had told everyone that he was bodily thrown out of the company meeting at the previous meeting. Hershey testified he denied that he had done so and that then Olson said he knew Hershey worked for Respondent and that he worked for the Union. Allegedly Olson added that as store manager he could not attend union meetings and Hershey should not be allowed to attend company meetings. Hershey said he worked for the Company and not for the Union. Olson allegedly said, "We will see, we will see how long." Thus Olson allegedly threatened Hershey's discharge. Allegedly, at the same time, Hershey, just threatened with prospective discharge, saw the union leader, Lonny Mayer, walking into the store. Counsel for General Counsel would have me believe that on this, the afternoon before the election, Hershey who apparently worked like a beaver to discover anything which might help the Union in possible exceptions or in possible unfair labor practice charge, did not go to Mayer and report to him what had just happened. Hershey, allegedly, just drove off from Respondent's premises. Thus, too, late in the trial, Mayer testified that he saw Hershey 29 Some had signed union cards. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Olson in conversation about noon and that he remembered this particular occasion even though he visited Respondent's premises about 10 times that day. Olson testified that he had a similar conversation with Hershey sometime after the election but not about seeing whether Hershey would continue to work for Respondent. I am aware that in some instances I have credited the testimony of some of General Counsel's witnesses in preference to that of Olson. Such is not the situation here. Hershey's demeanor impressed me unfavorably. His testimony was often vague, inconsistent, and unreliable. I am convinced that Mayer's testimony as to seeing Hershey and Olson in conversation on November 17 about noon near Respondent's premises was an imaginative improvisa- tion devised to bolster Hershey's very sagging story. I do not credit Mayer's testimony as to the events here concerned. I am convinced that Olson gave a detailed straightfor- ward account of where he was from about nearly 10 a.m. to 3 p.m. on November 17. He was with or near Sykes at these times, not near Respondent's store. He could not have had the conversation where and when Hershey placed it. Olson, at these times, was either at a bank or motel near or with Sykes. Aside from observing the demeanor of Olson when he gave this testimony and being very favorably impressed by it, I am conscious that Sykes meticulously elicited this testimony establishing that Olson and Sykes were substan- tially together preparing the speech given by Olson on the afternoon of November 17. If Olson testified falsely in these regards then I would find Sykes to be particeps crimmis. I am convinced that, although I have found Sykes violated Section 8(a)(1) of the Act, he was an honest, ethical, truthful lawyer. He impressed me, in spite of his slip, as an honorable member of the Bar who would not for a moment be a knowing party to the presentation of evidence before the Board which he had reason to believe and particularly know was false. Olson's testimony as to his whereabouts for hours before and after noon on November 17, intimately involved Sykes' actions at the same time, and was elicited by Sykes. I have no doubt that in so doing, Sykes vouched for the truth of Olson's testimony in this regard. Either that, or I must find Sykes was a knowing, deliberate shyster, who connived at the presentation of much testimony by Olson which was outright perjury. Having tried this case with Sykes for 3 days, I unhesitatingly find and state that the latter is ridiculous and unworthy of consideration. Not considering Sykes, per se, in this regard, I credit Olson's testimony as to his activities on November 17, and do not credit the testimony of Hershey or Mayer, to the contrary, in any detail. But I have and I do consider the fact that Olson's testimony as to his dealings with Sykes on this day was elicited by Sykes himself. Counsel for General Counsel contends that Sykes should have testified as to Olson's activities on November 17, and that Sykes' failure so to do gives General Counsel "the benefit of an inference that Sykes testimony would not corroborate Olson." I reject such an inference in this case. His merely eliciting the testimony from Olson as to where and when he acted in concert or in the the company of Sykes is, to me, corroboration of Olson's testimony. If counsel for General Counsel thinks or believes that Sykes would have know- ingly and intentionally elicited perjurious testimony from Olson as to the latter's dealings with Sykes on November 17, let him say so and argue it. I reject it out of hand. I am completely satisfied neither counsel would engage in such abhorrent misconduct. Counsel for General Counsel contends in his able brief, "It would have been incredible had Hershey run to the store to discuss with Mayer on Respondent's territory the fact that Olson just threatened him." I find the contrary to be true. Hershey testified he was a college student. His father had been an International representative of the Retail Clerks' Union. Hershey was the Union's foremost and most active employee advocate. I find it completely incredible that such a person, just as he is being threatened by Olson with future illegal discharge, did not run to Union Leader Mayer, who conveniently and coincidentally was allegedly in view of Hershey, and report the threat to Mayer.30 It may be noted that at that very moment Hershey described himself as being mad and afraid. It would have been the most natural act to seek out Mayer and report. Not to do so is not in keeping with the image of Hershey, as spelled out in this record. 11. Olson's unlawful interrogation of Karen Christensen Shortly after the election, according to the credited testimony of Christensen, Supervisor Mary Williams called her into the office.31 While Williams was explaining store procedures to her, Olson asked Christensen what she thought of unions. She told him she didn't like them or have much respect for them because of union trouble when previously employed. Olson told her what her rate of pay would be and to keep it quiet because things in the store were touchy at that time.32 He told her he was starting her out at a higher rate than other girls were getting. He said their conversation was to be kept confidential. I find Respondent violated Section 8(a)(1) of the Act by Olson's interrogation of Christensen. His activity had no effect on the election which had already been held. 12. Olson's antiunion speech on the afternoon prior to the election Olson's speech is in the record as General Counsel's Exhibit 4. Various markings on it are explained in the record and are here immaterial. General Counsel contends that in the speech Olson unlawfully told employees that a certain employee (obvi- ously Hershey) had received money from the Union and would not be allowed to attend company meetings; threatened that the store could be closed by Respondent for economic reasons if the Union won the election; promised that things would get better if the employees stuck with the store manager; and told them that if the Union won the election it would be forced to strike and other employers could lawfully refuse to hire the strikers. 30 Hershey was regularly on the lookout for evidence which might 31 Williams did not testify. support objections on a charge in Mayer's behalf. 32 Right after the election J. J. NEWBERRY COMPANY Olson stated in his speech that one employee (obviously Hershey, though not named) had received money from the Union during the campaign and it could be proved. One33 check was for expenses and while it didn't measure up to the alleged very high salary and expenses of the Interna- tional's president, it was a start. Olson then said that just as Respondent's officers didn't attend union meetings, "no one paid by the Union is going to attend ours"-obviously referring to Hershey. In fact, all the money Hershey received from the Union was a check for $4.68, as reimbursement for two long- distance calls to Helena on union business over his mother's phone. Hershey cashed this check at Respon- dent's store and thus it came to Olson's attention. Olson knew of no other money Hershey received from the Union. Olson may, in good faith, have had the erroneous opinion that Hershey received more money from the Union and was in the Union's employ. He was not. Olson never asked him or the Union. It was a long, long jump that Olson made from the fact that Hershey received a check for $4.68 as reimbursement for expenses, to a conclusion that Hershey received anything else. It appears reckless to me. I find Olson violated Section 8(a)(1) of the Act by telling the assembled employees that Hershey, because of his union activities could not attend company meetings of his fellow employees. This was clearly an announcement discriminating against Hershey. Olson made many references, in his speech, to the closing or moving of other stores of Respondent which had been organized by a union, pointing out that such closings or moving were for economic reasons. Olson pointed out that the same things happened in nonunion stores. General Counsel contends that Olson told the employees that if the Union won the election, the store would be closed for this reason, and only ostensibly or pretextually for economic reasons. This is a close question, but having carefully read and reread the speech as a whole and in pertinent parts, I make no such finding. I find Olson made it clear to the employees that some of the chain's stores were closed for economic reasons whether union or nonunion. I recognize that these statements were made as part of an antiunion speech. But the employees were plainly told that the stores, union or nonunion, were closed for "economic reasons." I find no violation of Section 8(axl) in this part of Olson's speech. Olson told the employees that "with the wage price freeze only allowing increases of 5 1/2 percent for wages and benefits together I think you can be assured that you will get that much, if the Union is rejected." Such prediction of future benefits appears to have been substantially consonant with past practices of Respondent. I do not read into the speech a threat to withhold such benefits should the Union be successful. Olson stated in substance that the employees would be satisfied if they stuck with him for 12 months. I find this was a legitimate prediction or statement of his opinion, and not a promise. Olson couldn't promise that the employees would be satisfied with anything he would do in the next 12 months.34 General Counsel claims Olson violated the Act by telling 33 Implying there was more than one. 31 There's always someone to complain about something. 431 the employees that if they were to strike, "another company could lawfully refuse to hire them based on their status as strikers." In fact, Olson said, "Now if there is a strike here some of you have said you plan to go to work somewhere else-well the law gives another company the right to refuse to hire a striker who plans to return to her old job after the strike-if the company has such a policy [G.E. Kresge ] [sic ]." I find nothing violative of the Act in this statement. If a company , is looking for permanent employees it may lawfully refuse to hire strikers who plan to leave the company at the end of the strike at their prior employer. I do not believe the employees could or should have understood more than this from the statement. It was not violative of the Act. I do not believe the employees would understand it as a prediction that some employers would violate the Act. Note that Olson referred only to practices of employers with respect to strikers who planned to return to their old jobs at the end of thr strike. Companies may lawfully refuse to hire temporary as distinct from permanent employees, strikers or not. 13. The Union's majority-Helen Angle's prounion activity-the 8(a)(5) issue- Gissel There is no question but that a majority of Respondent's employees signed authorization cards by the time the Union sought recognition and bargaining. General Coun- sel contends in his complaint that Respondent's unfair labor practices were so extensive and persuasive as to require the issuance of a bargaining order even in the absence of an 8(a)(5) violation.35 He also alleges that the Respondent violated Section 8(aX5) of the Act in refusing to bargain with the Union as it demanded. In his able brief, General Counsel ignores Helen Angle's activities in the obtaining of a majority by the Union. She was a supervisor within the meaning of the Act as found by the Regional Director in his Decision and Direction of Election. She signed a union authorization card and was "very much for the Union." She told at least eight employees why they should vote for the Union. She told employees what benefits the Union would obtain for them. At a union meeting (early in the campaign) she told the assembled employees that the Union was a "good thing" and the employees should "go Union." She wore a union button at work. She, at another employee's request, provided her with a copy of a contract Newberry's had with the Retail Clerks at another store. She told other employees of Olson's direction to her to stay out of the union campaign because she was part of management and told them that Olson had taped his conversation with her. After Olson directed her to refrain from union activities, she prepared a list of questions to be asked at a union meeting.36 At least several of the employees to whom Angle spoke favorably about the Union signed union cards. The record abounds with credible evidence of her many prounion activities. At no time did she commit any unfair labor practices in behalf of Respondent. She did not recant her prounion feelings and beliefs. I find and 35 I find this not to be so. 36 This happened. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude "that the Union's majority showing was tainted by [Angle's] prounion activities. " 37 Only two other employees including Hershey and Baugher signed cards earlier than Angle. She engaged in union activities throughout the period when all the authorization cards were signed. The unit in this case was substantially the same size as in the case above cited. Unlike the supervisor in the cited case, Angle's union activities were far reaching. The supervisor in the cited case engaged in minimal union activities and in many serious unfair labor practices thereafter, thus renouncing the union. I find the Union's majority in this case was tainted by supervisor Angle's prounion activities. Counsel for General Counsel has failed to prove that Respondent violated Section 8(a)(5) of the Act because the Union did not have a valid and uncoerced majority. I have found above that Respondent violated Section 8(a)(1) of the Act, but I conclude that, based on the entire record, the issuing of a bargaining order would not be proper or salutary herein. I find, in light of Respondent's unfair labor practices as found above, that there is a reasonable basis for conclud- ing that the freedom of choice of the employees in the election previously held herein was destroyed and that Respondent interfered with the laboratory conditions which the Board seeks to maintain during an election campaign. A rerun election should be directed and conducted by the Regional Director for Region 19. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent 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 and is engaging in certain unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In light of the ample grounds existing therefore, it is recommended that the prior election be set aside and that a new electior!<.be directed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By conveying to its employees that their union 37 Welding & Industrial Products Ltd. & Carbonic Products Corp., 167 NLRB 881. (House joke-a burned child dreads the fire.) 38 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, recommendations, and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations, be adopted by the said Board and become its findings, conclusions, and Order, and all activities were under surveillance; by telling a meeting of its employees that a most active member of the Union would not be allowed to attend meetings of the employees in the store because of his union activities; by causing an employee and his friend, who was also a union member, to leave an employee meeting on company premises where Respondent and the Union were to be the subject of discussion because the first employee was a leading employee protagonist of the Union; and by interrogating employees as to their union activities, Respondent inter- fered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of the Act. 5. By engaging in the aforesaid unfair labor practices, Respondent has interfered with the results of the represent- ation election previously conducted herein. Upon the above findings of fact, conclusions of law, and the entire record herein, I hereby issue the following recommended: ORDER 38 Respondent, J. J. Newberry Company, Missoula, Mon- tana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Conveying to its employees the impression that it has been keeping its employees' union activities under surveil- lance. (b) Telling its employees that an employee active in the Union cannot attend company-employee meetings because of his union activities. (c) Causing employees to leave a meeting which Respondent conducts with its employees about the Union, because the employees in question, or one of them, is active in behalf of the Union. (d) Interrogating any of its employees with respect to their union activities or preferences. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at all its places of business in Missoula, Montana, copies of the attached notice marked "Appen- dix."39 Copies of said notice, on forms provided by the Regional Director for Region 19, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. objections thereto shall be deemed waived for all purposes. 39 In the event the Board's Order is enforced by a Judgment of the 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." J. J. NEWBERRY COMPANY (b) Notify the Regional Director for Region 19, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith?a IT IS ALSO RECOMMENDED that the election previously held in Case 19-RC-5986, be set aside, and that a new election be directed. 40 In the event this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read : "Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all our employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they freely choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT convey or indicate to our employees that their union activities are under surveillance by us or our agents. 433 WE WILL NOT tell our employees that a most active, member of the Union will not be allowed to attend employee meetings conducted by us because of his activities in behalf of the Union. WE WILL NOT cause any employees to leave an employee meeting we conduct because they have engaged in union activities. WE WILL NOT interrogate any of our employees as to their union activities or proclivities or sentiments. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. Dated By J. J. NEWBERRY COMPANY (Employer) (Representative) . (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-5692.