Canteen Corp.

CANTEEN CORPORATION 767 Canteen Corporation and Local P-653, Meat, Food and Allied Workers Union a/w Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Bartenders, Cooks, Cafeteria, Lun- cheonette and Soda Fountain Workers, Local 131, a/w Hotel, Restaurant and Bartenders Internation- al, AFL-CIO. Cases 22-CA-4936 and 22-CA -5020 March 28, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 16, 1972, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Local 131 i filed a brief in support of the said Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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 Judge2 and to adopt his recommended Order only to the extent consistent herewith. While we agree with the Administrative Law Judge that Respondent did not violate the Act through the actions and statements of Victoria Busechio, we disagree with his dismissal of the allegations in the complaint based upon the conduct of Respondent's district manager, Stanley Smith. In our view, Smith, an admitted supervisor, violated the Act both on March 1, 1972,3 during his address to 13 assembled employees, and again on March 11, 1972, during his conversation with employee Laura Cox. 1. Our disagreement with the Judge over the propriety of Smith's March 1 address to the employ- ees stems principally from our conclusion that the Judge improperly discredited the testimony of employee Lillie Rogers. Rogers was hired by Respondent as a cashier in February, shortly after its Gateway II cafeteria opened for business. By the time of the hearing in September, Rogers had been elevated to the position of head cashier and testified pursuant to a subpena issued by the General Counsel. Rogers testified that District Manager Smith arranged to meet with the employees during the afternoon of March 1 in the dining area of the cafeteria. The meeting was attended by approximate- ly 13 employees; a number of topics were discussed, including the presence of organizers for Local 131. According to Rogers, Smith informed the employees that "[t]he union men [were] downstairs and those who signed the card would have more seniority than those . . . that didn't sign the card. And those who didn't sign the card, they would have to quit work." In addition, Smith held up a card during the course of his address which he represented as being a union authorization card. In expanding upon this testimony, Rogers stated that she equated "seniority" with acquiring "a better position," and understood Smith's comments to mean that if the Union acquired majority support, those employees who failed to execute authorization cards would be forced to quit their jobs. Rogers further testified that, although Smith did not specify which union was then organizing on Respondent's premises,4 and did not specifically order any of the employees to sign union cards, his speech neverthe- less did influence her to sign an authorization card on behalf of Local 131 soon after the meeting ended. In addition to Rogers, 11 other employees executed Local 131 authorization cards on the day of Smith's speech.5 The above testimony of Lillie Rogers was entirely discredited by the Administrative Law Judge on the ground that it "was so vague, contradictory, and uncorroborated, as to make it unworthy of accept- ance." Accordingly, the Judge found that Respon- dent did not violate the Act by virtue of Smith's speech since "Smith did not make the remarks attributed to him by Rogers on March 1." Insofar as the lack of corroboration is concerned, the absence of such evidence in the record to corroborate Rogers' testimony, is, in our Judgment, explained by the rulings of the Administrative Law Judge. On two separate occasions, efforts by the General Counsel to introduce corroborating testimo- ny were effectively foreclosed by the Judge. In the first such instance, the General Counsel placed employee Frances Mickens on the witness stand for the expressed purpose of, inter alia, corroborating Rogers' testimony regarding Smith's address to the employees. Following nine introductory questions, the Judge inquired as to whether Mickens' testimony was going to be corroborative of testimony already I Bartenders, Cooks, Cafeteria, Luncheonette and Soda Fountain 3 Unless otherwise noted, all dates herein refer to calendar year 1972 Workers, Local 131, Hotel, Restaurant and Bartenders International, • 4 The record indicates that Local 131 was the only union seeking to AFL-CIO represent Respondent's employees at the time of Smith's speech 2 The Administrative Law Judge made certain inadvertent errors in his 5 Of the 23 cards which were signed for Local 131, 12 were signed on the Decision which are hereby corrected day of Smith's address to the employees, and I I were signed subsequently 202 NLRB No. 104 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presented by Rogers. Upon receiving an affirmative answer from the General Counsel, the Judge replied: "I think it is a waste to time. There is nothing yet that has put into issue the testimony . . . with regard to Smith." At the Judge's suggestion, the General Counsel thereupon rested his case in chief and reserved all corroborating witnesses for rebuttal. In presenting its defense, Respondent offered no evidence whatsoever regarding Smith's March 1 address. Although Smith had been subpened by the General Counsel, and was available at the hearing, he was not called upon to testify.6 When Respondent rested its case, the General Counsel again informed the Judge that other witnesses, including Frances Mickens, were available to corroborate Rogers' earlier testimony regarding Smith's March 1 speech. The Judge's response indicates that he considered further testimony to support an uncontradicted prima facie case to be unnecessary. He stated: "Well, there isn't any countervailing evidence. There is no opposition evidence to whatever attack this company made frontally on the drive or obliquely . . . . So whatever Miss Mickens testified to would be cumula- tive. The testimony of the preceding witnesses is uncontroverted." In view of these comments, the General Counsel refrained from introducing any further corroborating testimony at the hearing. We are, therefore, not persuaded by the Judge's argu- ment that the testimony of Lillie Rogers should be discredited on the ground that it is uncorroborated when it is clear that the absence of such corroborat- ing evidence must be attributed to restrictive eviden- tiary rulings made at the hearing by the Judge himself. While Lillie Rogers' testimony may be uncorrobo- rated because of the Judge's rulings, it is also completely uncontradicted. In addition, we do not agree with the Judge that Rogers' testimony was vague and contradictory and therefore unworthy of acceptance. Instead, we view Lillie Rogers' testimony as being entirely reasonable and credible. First, the Judge notes in his Decision that Rogers initially testified that Smith "called" the March 1 meeting, but subsequently stated in her testimony that she could not recall who had "summoned" the employ- ees. Rather than being contradictory, however, this testimony merely indicates an awareness on the part of Rogers, on the one hand, that the meeting had been arranged or requested by Smith (the only speaker), but a lack of awareness, on the other hand, as to the particular individual who actually sum- moned her to join the other employees then congre- gating in the cafeteria. Second, the Judge asserts that Rogers first testified that the Union was the only topic of discussion at the meeting and then subsequently modified this posi- tion by stating that other topics (the substance of which she could not recall) were also discussed. An examination of the record does not reveal any statement by Rogers that the Union was the only subject of conversation during the meeting. Indeed, Rogers acknowledged that she did not pay any attention to Smith's speech "until he started talking about the union." Third, as noted above, Rogers testified that during Smith's speech to the employees, he displayed a card in his hand which he represented as being a union authorization card. The Judge concluded that Rog- ers' testimony in this regard was unreliable in view of her admission that she was unable to actually see the card from her vantage point in the cafeteria. However, an admitted inability to physically see the authorization card does not necessarily undermine the statement that one was actually displayed in view of Smith's verbal representation to the employees that the item which he held in his hand "was one of the cards you signed for the Union." Fourth, according to the Judge, Rogers "admitted" that "Smith did not tell the assemblage to sign the card and that Smith did not threaten any employee with discharge if she failed to execute a designation." Our examination of the record discloses no assertion by Rogers that Smith ever specifically told or instructed the employees to sign cards. Moreover, Rogers never claimed, nor did the General Counsel ever allege, that Smith threatened the employees with discharge for failure to execute Local 131 authoriza- tion cards. Fifth, the Judge observes that during her testimony Rogers replied affirmatively to the following ques- tion from Respondent's counsel: "Did Mr. Smith say if you wanted you could sign cards?" According to the Judge, this answer was modified by Rogers when she "recanted and allowed as how no mention was made by Smith about signing cards." We can find no basis in the record for finding such a recantation. Rogers' testimony, considered as a whole, clearly indicates that the question of executing authorization cards was very much a primary subject of discussion during Smith's address. Finally, the Judge pointed out that employees Ambrose and Mickens, both of whom were called as witnesses by the General Counsel and both of whom Rogers cited as being in attendance at the March 1 meeting, either did not testify about, or could not recall, any meeting with Smith. The record indicates that Ambrose testified before Rogers and about an entirely unrelated incident. Ambrose did state, 6 For reasons which remain undisclosed, Smith left Respondent's employ prior to the hearing CANTEEN CORPORATION 769 however, that she recalled a meeting of employees being held, although she could not recall the precise date on which it had occurred. With respect to employee Mickens, the record clearly indicates, as discussed above, that the corroborating testimony which she was apparently prepared to offer was foreclosed on two separate occasions by the Judge himself. In analyzing the above-described reasons relied on by the Judge asjustification for refusing to credit the testimony of Lillie Rogers, it should be emphasized that each reason is based upon his analysis of the content of her testimony. None of the reasons which he advances is based upon her demeanor as a witness. Our policy, as enunciated in Standard Dry Wall Products, Inc., 91 NLRB 544, is to attach great weight to a Judge's credibility findings insofar as they are based on demeanor. However, to the extent that credibility findings are based upon factors other than demeanor, as in the instant case, the Board itself may proceed with an independent evaluation. Valley Steel Products Co., 111 NLRB 1338. On the facts of this case, our evaluation leads us to conclude that the Judge's credibility findings regard- ing Lillie Rogers must be reversed. Although uncor- roborated as a result of restrictive evidentiary rulings, her testimony regarding the substance of Smith's address to the employees stands uncontradicted and unimpeached. Respondent could have, but failed, to introduce witnesses, including Smith himself,7 to rebut her testimony. In view of the fact that no reason for Smith's failure to testify was offered, and since Smith was better qualified than anyone else to refute Rogers' testimony, if it were inaccurate, we may, under the circumstances, infer that the testimo- ny which he would have given would have been unfavorable to Respondent's defense of the allega- tions based upon his March 1 statements. Goodyear Tire & Rubber Company Highway Transportation Department, 190 NLRB No. 15; United Mineral & Chemical Corporation, 155 NLRB 1390. Accordingly, we find that District Manager Smith did make the remarks on March 1 attributed to him by Lillie Rogers, and that Respondent thereby violated Section 8(a)(1) and (2) of the Act. In our view, Smith's statements amount to an urging and soliciting of employees to sign authorization cards for and to join Local 131, and a promising of economic and employment benefits to such employ- ees for signing such cards and embracing Local 131 membership. Since we find that the 12 authorization cards signed on March 1 were tainted by Smith's speech, at no time has Local 131 represented an uncoerced majority of Respondent's employees. 2. We also find, contrary to the findings of the Administrative Law Judge, that the conversation which District Manager Smith had with employee Laura Cox on March 11 was violative of Section 8(a)(1) and (2) of the Act. According to the uncontradicted testimony of head cashier Cox, she approached Smith in his office on March 11 and inquired as to her eligibility for a raise in pay. Smith replied that pursuant to Respondent's then-existing agreement with Western Electric, pay increases for employees could not be implemented at that time. Smith then informed Cox that: (1) the only way she could get a raise was to join "the union," (2) by joining "the union" she would also become entitled to various fringe benefits including Blue Cross and Blue Shield insurance coverage, and (3) once "the union" became established and executed a contract, the employees "[w]ould all get a raise . . . to what [they] were supposed to be making ... ." Smith then advised Cox that there were union organizers downstairs distributing authorization cards to inter- ested employees. Shortly thereafter Cox executed an authorization card for Local 131. The Judge, while crediting the above testimony, nevertheless concluded that Smith's remarks did not constitute an unlawful urging and soliciting of membership in Local 131 and did not constitute a promising of economic and employment benefits in exchange for becoming a member of that organiza- tion. We do not agree. Smith's remarks quite clearly were intended to, and did, convey to Cox the impression that the employees' only access to justified pay increases and fringe benefits was through "the union." Having laid this foundation, Smith then informed Cox that union organizers were currently in the building for the purpose of enlisting new members. Since Local 131 was the only labor organization seeking to represent Respondent's employees on March 11, Smith's comments could only have been made with reference to that union. That Smith's comments had their intended impact is clearly reflected in Cox's testimony to the effect that she executed the card "for more money," that she would not have signed the card had she not talked with Smith, and that in executing the card she explicitly relied on Smith's representation that the Union "will" give the employees a pay raise plus Blue Cross and Blue Shield. In view of this undisputed testimony, we find that Smith's state- ments to Laura Cox on March 11, as with his March 1 speech to employees, violated Section 8(a)(1) and (2) of the Act and thereby tainted her authorization card.8 3. As noted earlier, we find that Local 131 at no r As noted earlier, Smith was present in the sequestration area during the hearing but was not called by Respondent as a witness R In view of our finding that Smith's March I address to the employees and March 1 I conversation with Laura Cox tainted a total of 13 out of 23 (Continued) 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time represented an uncoerced majority of unit employees. Accordingly, Respondent's execution of a written recognition agreement with Local 131 on March 23, 1972, and subsequent execution of a collective-bargaining agreement with Local 131 on May 22, 1972, constitute additional violations of Section 8(a)(1) and (2) of the Act. Niagara Frontier Services, Inc., 186 NLRB No. 107; cf. ILGW (Bernhard-Altmann Texas Corp.) v. N.L.R.B., 366 U.S. 731. Moreover, by entering into, enforcing, and maintaining the union-security provision in the May 22 contract, Respondent thereby discriminatorily encouraged membership in Local 131, and discour- aged membership in Local P-653,9 in violation of Section 8(a)(3) and (1) of the Act.10 Department Store Food Corp. of Penna., 172 NLRB No. 129. CONCLUSIONS OF LAW 1. By urging and soliciting employees at its Gateway II facility in Newark, New Jersey, to sign authorization cards for and to join Local 131, and by promising economic and employment benefits to such employees if they sign authorization cards and join Local 131, Respondent, by its District Manager Stanley Smith , has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 2. By recognizing Local 131 as the employees' exclusive bargaining representative on March 23, 1972, at a time when Local 131 was not the freely designated bargaining representative of a majority of the employees in the unit, by executing a collective- bargaining agreement containing a union-security provision with Local 131 on May 22, 1972, and by thereafter enforcing and maintaining said agreement, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 3. The aforesaid unfair labor practices by Re- spondent affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Except as found above, Respondent has not engaged in any other unfair labor practices alleged in the complaint. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of authorization cards in a unit of 35 employees , the Union has at no time represented an uncoerced majority and it is therefore unnecessary for us to determine whether Smith's conduct also tainted the remaining 10 cards executed on March 15 9 Local P-653, Meat, Food and Allied Workers Union , a/w Amalgamat- ed Meat Cutters and Butcher Workmen of North America , AFL-CIO. Charging Party herein 10 Having found that Respondent violated Sec 8(a)(I), (2), and (3) of the Section 8(a)(1), (2), and (3) of the Act, we will order that Respondent cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Moreover, having found that Respondent violated Section 8(a)(1) and (2) of the Act by granting exclusive recognition to Local 131 on March 23, 1972, at a time when Local 131 did not represent a free, unassisted, or uncoerced majority of the unit employees, and further violated Section 8(a)(1), (2), and (3) of the Act by executing a collective-bargain- ing agreement containing a union-security provision with Local 131 on May 22, 1972, and thereafter maintaining and enforcing said agreement, including the union-security provision, we will order that Respondent withdraw and withhold recognition from Local 131 as the representative of any of its employees at the Gateway II facility, Newark, New Jersey, and cease maintaining or giving any force or effect to the collective-bargaining agreement execut- ed on May 22, 1972, or to any modification, extension, renewal, or supplement thereto, unless and until Local 131 has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Canteen Corporation, Newark, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Giving assistance and support to Bartenders, Cooks, Cafeteria Luncheonette and Soda Fountain Workers, Local 131 a/w/ Hotel, Restaurant and Bartenders International, AFL-CIO, or to any other labor organization, by urging and soliciting employ- ees to sign authorization cards for and join such organization, by promising economic and employ- ment benefits to such employees if they sign authorization cards for and join such organization or by any other conduct proscribed by the Act, and from granting exclusive recognition to and executing a contract with any labor organization which does not represent a free, unassisted , or uncoerced majority in the appropriate unit. (b) Recognizing the above-named labor organiza- tion as its employees' exclusive representative for Act by engaging in the aforesaid conduct at a' time when Local 131 did not represent an uncoerced majority of Respondent's employees, it is unneces- sary for us to consider the General Counsel's alternative contention;that said conduct of Respondent was also unlawful on the grounds that it occurred at a time when Respondent had knowledge that a real question concerning representation had been raised by the filing of a representation petition by Local P-653 on May 12 CANTEEN CORPORATION collective-bargaining purposes unless and until the National Labor Relations Board shall certify it as such representative. (c) Maintaining or giving any force or effect to the collective-bargaining agreement executed with the above-named labor organization on May 22, 1972, or to any modification, extension, renewal, or supple- ment thereto, provided, however, that nothing herein shall require Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its employees which has been established in the performance of this agreement, or to prejudice the assertion by employees of any rights they may have thereunder. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Bartenders, Cooks, Cafeteria Luncheonette and Soda Fountain Workers, Local 131 a/w Hotel, Restaurant and Bartenders International, AFL-CIO, as the collective-bargaining representative of any of its employees at its Gateway II facility, Newark, New Jersey, for the purpose of dealing with the Respon- dent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until the Board shall certify said labor organization as such representative. (b) Post at its Gateway II facility, Newark, New Jersey, copies of the attached notice marked "Appen- dix." li Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's authorized representative, shall be posted by it 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that 771 Respondent has engaged in any unfair labor prac- tices other than those found herein. 11 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or contribute support to Bartenders, Cooks, Cafeteria, Luncheonette and Soda Fountain Workers Local 131, a/w Hotel, Restaurant and Bartenders International, AFL-CIO, or to any other labor organization. WE WILL NOT recognize the above-named labor organization as the exclusive representative of our employees for the purposes of collective bargain- ing unless and until it has been selected by our employees in an election conducted by the National Labor Relations Board. WE WILL NOT give any force or effect to the collective-bargaining agreement, executed May 22, 1972, with the above-named labor organiza- tion, or to any modification, extension, renewal, or supplement to said agreement, but WE WILL NOT vary or abandon the wages, hours, seniority, or other substantive provisions in such agreement. All our employees are free to become or remain, or refrain from becoming or remaining, members of either the above-named labor organization or of Local P-653, Meat, Food and Allied Workers Union, a/w Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, or of any other Union. CANTEEN CORPORATION (Employer) Dated By (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, 16th Floor, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-2100. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE MAx ROSENBERG, Administrative Law Judge - With all parties represented , this proceeding was tried before me in Newark, New Jersey, on September 21, 1972, on an amended complaint filed by the General Counsel of the National Labor Relations Board and an amended answer filed thereto by Canteen Corporation, herein called the Respondent , and by the Party to the Contract, Bartenders, Cooks, Cafeteria , Luncheonette and Soda Fountain Work- ers, Local 131 , a/w Hotel, Restaurant and Bartenders International, AFL-CIO, herein called Local 131.1 The issues raised by the pleadings relate to whether Respondent violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter . Briefs have been received from the General Counsel , Local 131 , and Respondent which have been duly considered.2 Upon the entire record made in this proceeding, including my observation of the witnesses who testified, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. BUSINESS OF THE EMPLOYER Respondent maintains its principal office and place of business at The Merchandise Mart, Chicago, Illinois, and at various other facilities in the States of New Jersey and New York, including the Western Electric Company cafeteria at Gateway 2, Newark, New Jersey, and, at all times material herein, has engaged at the Gateway 2 installation in providing and performing retail cafeteria and restaurant services. Respondent's Newark facility is the only place of business involved in this proceeding. During the annual period material to this proceeding, Respondent received gross revenues valued in excess of $500,000. During the same period, Respondent shipped and transported products valued in excess of $50,000 from its place of business in interstate commerce directly to States of the United States other than the State of New Jersey. Accordingly, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 131 and Local P-653, Meat, Food and Allied Workers Union, a/w Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, the Charging Party, herein called Local P-653, are labor organizations within the meaning of Section 2(5) of the Act. I The complaint, which issued on August 16, 1972, is based upon charges filed and served in Case 22-CA-4936 on May 22, 1972, and charges and amended charges filed and served in Case 22-CA-5020 on July 18, 1972, and July 21, 1972 2 In a posthearmg motion concurred in by all the parties, the General III. THE ALLEGED UNFAIR LABOR PRACTICES The amended complaint alleged that Respondent violat- ed Section 8(a)(1) of the Act when, on March'1 and 11, 1972,3 Supervisor Stanley Smith promised its employees economic and employment benefits if they executed authorization cards on behalf of Local 131, and urged and solicited them to do so, and, again on March 15, when alleged Supervisor Victoria Busechio interrogated employ- ees to ascertain whether they had signed designations in favor of Local 131 and urged and solicited them to engage in this activity. The complaint further alleged that Respondent violated Section 8(a)(2) by entering into a collective-bargaining agreement with Local 131 on May 22, at a time when Local 131 did not represent an uncoerced majority of Respondent's employees and while a question concerning representation existed. Finally, the complaint alleged that Respondent offended the provisions of Section 8(a)(3) by executing the contract on May 22 which contained a union-security clause, thereby encouraging membership in Local 131 and discouraging membership in Local P-653. Respondent denied the commission of any labor practices proscribed by the Act.4 Sometime prior to February, Respondent negotiated a contract with Western Electric Company whereby the former was accorded the right to maintain and operate the food service facility at Gateway 2 in Newark, New Jersey. The facility was formally opened in February, and various classifications of employees were interviewed and hired by Joseph Heck and Stanley Smith, the district managers of Respondent. Shortly thereafter, Local 131 embarked upon an organizational drive to enlist the collective support of Respondent's employees. It is undisputed and I find that, between March 1 and March 15, Local 131 obtained 23 signed authorizations in a unit which concededly num- bered no more than 35 individuals. On March 7, Local 131 dispatched a letter to Respondent claiming representation- al rights. Local 131 submitted its cards to Respondent for inspection on March 20. On March 23, following a check by Respondent's officials of the signatures on the designa- tions with the companion signatures on the applications for employment, Respondent became convinced that the signatures on the cards were genuine and thereupon extended recognition to Local 131 as the exclusive representative of the unit employees. Sometime between April 15 and May 1, Local P-653 entered the picture and mounted its own organizational campaign. This culminat- ed on May 12 when Local P-653 filed a petition with the Board in Case 22-RC-5325 requesting an election. In the meantime, Local 131 and Respondent entered into bargaining relations which, on May 22, produced a labor agreement containing, inter aka, a valid union-security clause. On the same date, Local P-653 lodged the initial unfair labor practice charges which triggered this litigation. The General Counsel does not dispute that, on May 22, Local 131 possessed 23 cards in a unit of 35 individuals, a figure which assuredly represented a majority. Rather, he Counsel requested that an exhibit marked as GC 2a be received in evidence The motion is hereby granted J Unless otherwise indicated, all dates herein fall in 1972 4 Local 131 filed an answer taking a position paralleling that of Respondent CANTEEN CORPORATION 773 asserts that a number of the cards bore the taint of certain misconduct indulged in by Supervisors Stanley Smith and Victoria Busechio which voided the designations and destroyed any claimed majority by Local 131. I first turn to a consideration of Busechio's alleged supervisory status and her conduct against which the General Counsel complains. Busechio was hired by Respondent on February 24 as a head salad girl. On March 1, she executed an authorization on behalf of Local 131. The only testimony elicited by the General Counsel regarding Busechio's status came from employees Carolyn Ambrose and Laura Cox. Ambrose was employed in February and worked in the salad department where she prepared salads and desserts, washed vegetables, and cleaned the area. Ambrose testified that, when she was hired, she was informed by District Manager Stanley Smith, and, later, by Assistant Manager Sy Rothman, that Busechio "would be my supervisor." Ambrose signed Local 131's authorization card on March 1. She further testified that, on the same day, she asked Busechio whether the latter "was going to sign and she said she didn't know because she didn't know whether supervisors are supposed to join up with the unions." Despite this testimony, the record discloses that Busechio executed a card on March 1. In her testimony, Laura Cox simply stated "Well, [Busechio] is a salad lady. She is, I guess you say, supervisor of salads." Despite these generalized characterizations of Busechio's status, the record is devoid of any evidence that she either possessed or exercised any of the statutory indicia of supervisory authority. Thus, it is uncontroverted that Busechio had no authority to hire, discharge, or promote employees in her department, and even Ambrose acknowledged that she had never observed Busechio discipline any girl. Busechio merely trained the salad girls in the performance of their duties and engaged in the same manual work as the other salad personnel. When Busechio was absent from work, the salad girls would follow a standard "cycle menu" to prepare for the meals. In addition, Busechio was carried on an employee payroll, received no supervisory fringe benefits, was paid at an hourly rate as were the other women, and received a wage rate which was substantially less than that afforded A. Lopez, an employee who signed a designation card on March 15 and was admittedly in the unit. Moreover, Busechio's classification of "head salad girl" is encompassed within the bargaining units contained in five contracts which Respondent had negotiated with different local unions. On the basis of the foregoing, I find and conclude that Busechio was not a supervisor within the meaning of Section 2(l1) of the Act. I therefore conclude that Respondent was not responsible for her activities and utterances, and that Respondent did not offend the provisions of Section 8(a)(1) or (2) by Busechio's conduct. However, even assuming that Busechio occupied the role of a supervisor, I am nevertheless not convinced that she "urged and solicited" Respondent's employees to join Local 131 in a manner proscribed by Section 8(a)(2). The testimony on this aspect of the complaint reveals that, on March 1, solicitors for Local 131, including an individual named Meacham, stationed themselves at the entrance of the building in which Respondent's cafeteria was located. Sometime during the day, the subject of Local 131's presence became the topic of discussion between Busechio and employee Carolyn Ambrose. Mecham's name was mentioned by Busechio and Ambrose inquired, "Who is he?" Busechio replied, "He works with the union, you know, he's a good guy." At this juncture, Busechio asked whether Ambrose had signed a card for Local 131, and the latter responded in the affirmative although she had not yet executed a designation. Following her work shift that day, and on her own time, Ambrose joined that labor organization. In Ambrose's words, she signed the card because "I liked [Busechio] a lot and we used to talk a lot. So when I talked to her and she told me he was a good guy and she knew him and she also talked to him, when I .went downstairs I signed." When questioned as to why she signed the card, Ambrose stated "No. 1, it is because she told me that she knew the guy and that he was pretty good, and No. 2 is because I wanted a union." Ambrose testimonially added that she executed the authorization "voluntarily" and that "No one forced me and no one made me . . . . I signed it because I wanted a union." In light of Ambrose's testimony, I am hard-pressed to understand how Busechio's conversation with Ambrose can be characterized as having "urged and solicited" Ambrose into joining Local 131. Ambrose clearly indicated on the stand that she signed with Local 131 because she desired representation by that organization, I therefore conclude that, even if Busechio was a statutory supervisor during the times material herein, her statements to Ambrose did not constitute the rendition of unlawful assistance and support to Local 131 within the purview of Section 8(a)(2), nor do I conclude that such statements affected the validity of Ambrose's signed designation. As heretofore chronicled, Stanley Smith is the district manager of Respondent's Gateway 2 facility and is concededly a supervisor within the meaning of the Act. Laura Cox was employed by Respondent as a "head cashier" in March, and is admittedly an employee covered by the statute. In the course of her duties, she made frequent daily trips to Smith's office, with whom she had been on friendly terms, to convey the cash boxes containing the daily receipts. Cox testified that, on March 11, she entered Snuth's office and noticed his presence. Cox asked Smith whether he had time to speak with her and, after Smith inquired, "What was it," Cox related that "I don't make no money ... but I am running around here like a chicken with my head cut off but I don't make no money." Smith remarked that "In order for you to make some money we can't give no money right now because Western Electric told us not to. He said that the only way I could get a raise was to join the union and get Blue Cross and Blue Shield and join the union to get a raise. And he told me the people were downstairs to sign the card. So I went and signed a card." Cox reported that she had observed a folded Local 131 designation card on Smith's desk, but Smith made no reference to this card during their colloquy. Cox also related that Smith did not order or otherwise coerce her into signing the authoriza- tion. When asked whether Smith promised that she would receive Blue Cross and Blue Shield benefits if she joined Local 131, Cox answered that Smith told her these benefits 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and a raise would be forthcoming, "but he did not say how much other or what other." However, Cox acknowledged that she had been a member of other unions , that union contracts generally provide for these benefits , and that their award depended solely upon the outcome of negotiations between her employer and the labor organiza- tions Cox also revealed that "I'm glad to be a union member. I keep my card with me." Rounding out her testimony, Cox stated that after her conversation with Smith she disclosed its contents to the other girls at the facility, although she was not directed by Smith to do so. However, not a single witness summoned in this proceed- ing supported Cox in this regard. On the basis of the foregoing evidence , I am not persuaded that Smith illegally supported and assisted Local 131 in violation of Section 8(a)(2) by "urging and soliciting" Cox to join that union, nor am I persuaded that Smith unlawfully promised Respondent's employees eco- nomic and employment benefits in violation of Section 8(a)(1) if they embraced Local 131. At the outset, it should be noted that Local 131 was the only labor organization on the campaign trails and, so far as appears on this record, there was no romantic link between it and the Respondent. When Cox requested a pay increase on March 11, Smith informed her that Respondent was under contract with Western Electric Company to provide food services at the facility. Smith explained that Western Electric was op- posed to any increase in wages at the time and commented that these benefits, as well as others, could become available, under the circumstances , if Respondent was contractually obligated to a union to provide them. While Smith mentioned that a union was currently organizing the employees and the solicitors were stationed downstairs, Smith neither urged, solicited, nor ordered Cox to join Local 131. Rather, I find that Cox voluntarily enlisted the collective representation of that Local because she desired increased wages and because she "was glad to be a union member," a reference to the fact that she had embraced other unions in order to benefit financially. Moreover, I am not persuaded that Smith promised Cox certain benefits if she joined Local 131. As indicated heretofore, Cox was no stranger to the implications of collective representation . She knew that benefits were accorded as a result of the give-and-take of bargaining between employ- ers and unions, and not by the blandishments of manage- ment alone Furthermore , I am unable to find that Smith's statements to Cox tainted her card, or the cards of other employees in such a manner sufficient to void them as support for a majority showing. For, it is undisputed and I find that none of the employees who were called to the stand by the General Counsel reported that they had any conversations with Cox concerning her discussion with Smith. Accordingly, I conclude that Respondent did not violate Section 8(a)(2) or (1) of the Act by Smith's conduct on March 11. Finally, the General Counsel contends that, on March 1, District Manager Smith called a meeting of employees at which he urged them tojoin Local 131 on pain of discharge and/or not obtaining better positions with Respondent. The General Counsel argues that this incident , in addition to offering unlawful support and assistance to Local 131, also caused the signed authorization cards of the employ- ees in attendance to be colored by coercion and therefore made them unreliable in determining the majonty status of Local 131. In support of this thesis, the General Counsel drew upon the testimony of employee Lillie Rogers. Rogers' testimony in this regard was so vague, contradicto- ry, and uncorroborated, as to make it unworthy of acceptance . Rogers testified that she was employed by Respondent in late February. On March 1 , according to her initial testimony , District Manager Smith called a meeting of approximately 13 employees, including Frances Mickens and Carolyn Ambrose. In later testimony, Rogers could not recall who had summoned the employees . At this assemblage , Smith held an authorization card in his hand and said "that the union men were downstairs and those who signed the card would have more seniority than those .. . that didn't sign the card . And those who didn't sign the card, they would have to quit work." At first, Rogers averred that this was the only topic of discussion during the meeting, but later acknowledged that other topics were broached by Smith although she could not recall their content. Moreover, later in her testimony Rogers admitted that she did not see the card in Smith's hand, that Smith did not tell the assemblage to sign the card , and that Smith did not threaten any employee with discharge if she failed to execute a designation . Furthermore, at one point, Rogers insisted that Smith told the employees that "if you wanted to you could sign cards," but then she recanted and allowed as how no mention was made by Smith about signing cards . Finally, Rogers was positive that employees Ambrose and Mickens were present during Smith's address. However, Ambrose and Mickens, both of whom were called as witnesses by the General Counsel, did not testify about or could not recall any such meeting. In sum, I do not credit Rogers' testimony and I therefore find that Smith did not make the remarks attributed to him by Rogers on March 1. Accordingly, I conclude that Respon- dent did not violate Section 8(a)(2) and (1) of the Act by any conduct of Smith on March 1 . It follows, and I further conclude, that none of the authorization cards of any employee of Respondent could have been tainted by any misconduct of Smith on that date. I have heretofore found that Respondent did not assist and support Local 131 in obtaining its majority status in violation of Section 8(a)(2), and did not otherwise independently violate the provisions of Section 8(a)(2). I therefore find and conclude that, on March 20, when Local 131 submitted its card showing to Respondent, and, again on March 23, when Respondent extended recognition to Local 131, the latter possessed 23 valid authorizations in a unit comprised of 35 employees, a figure which is assuredly a majority designation . I further find and conclude that, on May 22, when the Respondent and Local 131 entered into their collective-bargaining contract containing a valid union-security clause, the latter remained the majority representative of the unit employees Consequently, I find and conclude that, by contracting with Local 131 during 5 Local P-653 did not become active organizationally until at least April 15, approximately a month after the discussion between Smith and Cox CANTEEN CORPORATION the pendency of Local P-653's representation petition, Respondent did not violate Section 8(a)(2), and by incorporating the valid union-security provision into the agreement, Respondent did not encourage membership in Local 131 or discourage membership in Local P-653 in violation of Section 8(a)(3) of the Act. 6 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 775 Accordingly, I shall recommend that the complaint herein be dismissed in its entirety. ORDER6 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. 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