Foodland

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fairland Market, Inc. d/b/a Foodland and Retail Store Employees Union, Local No. 400, AFL- CIO. Cases 5-CA-8296, 5-CA-8355, and 5-RC- 9834 November 21, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 10, 1977, Administrative Law Judge Herbert Silberman issued the attached Decision and Report and Recommendations with Respect to Objections to an Election in this proceeding. There- after, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 the Respondent, Fairland Market, Inc. d/b/a Foodland, Lexington Park and Holly- wood, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election held on November 26, 1976, in Case 5-RC-9834 be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative L.aw Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry) Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 233 NLRB No. 103 DECISION AND REPORT AND RECOMMENDATIONS WITH RESPECT TO OBJECTIONS TO AN ELECTION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: These consolidated proceedings were heard in Washington, D.C., on May 16 and 17, 1977. Following the close of the hearing, briefs were filed with the Administrative Law Judge on behalf of General Counsel and Respondent. The complaint in Case 5-CA-8296 was issued on February 18, 1977, based upon a charge filed by Retail Store Employees Union, Local No. 400, AFL-CIO, herein called the Petitioner or the Union, on December 2, 1976; and the complaint in Case 5-CA-8355 was issued on February 25, 1977, based upon a charge and an amended charge respectively filed on January 12 and February 22, 1977, by the Union. The two cases were consolidated by an order issued on February 25, 1977. In substance, the complaint in Case 5-CA-8296, as amended at the hearing, alleges that Respondent Fairland Market, Inc. d/b/a Foodland, herein called the Company or the Employer, has engaged in violations of Section 8(aXl1) of the National Labor Relations Act, as amended, by reason of conduct occurring from September through November 1976 involv- ing unlawful interrogation of employees, creating the impression that the union activities of employees were under company surveillance, and threatening employees with reprisals should they select the Union as their collective-bargaining representative. The complaint in Case 5-CA-8355 alleges that the Company violated Section 8(a)(1) and (3) of the Act by demoting employee Leonard Francis Drury on January 3, 1977, because of his membership in and activities on behalf of the Union. Respondent duly filed answers to the complaints generally denying that it has engaged in the alleged unfair labor practices. With respect to the representation proceeding, Case 5- RC-9834, a petition for certification of representative was filed by the Union on September 14, 1976. Thereafter the parties entered into a Stipulation for Certification Upon Consent Election which was approved by the Acting Regional Director on October 14, 1976. Pursuant thereto, an election was conducted on November 24, 1976, among the employees in the following collective-bargaining unit: All regular full-time and regular part-time employees employed by the Employer at its Lexington Park and Hollywood, Maryland locations including cashiers, stockroom employees, bakery and delicatessen employ- ees, baggers, utility employees, janitors, and clerks, but excluding office clerical employees, guards, and super- visors as defined in the Act. The tally of ballots shows that of approximately 51 eligible voters 23 votes were cast for, and 23 votes were cast against, the Petitioner, and 5 ballots were challenged. Both the Union and the Company filed timely objections to conduct affecting the results of the election. On March 3, 1977, the Acting Regional Director issued his report on the challenges and the objections and an order consolidating 708 FAIRLAND MARKET, INC. Case 5-RC-9834 with Cases 5-CA-8296 and 5-CA-8355 for purposes of hearing, ruling, and decision and providing that thereafter Case 5-RC-9834 be transferred and continued before the Board. In summary, the report directed a hearing with respect to the challenge to the ballot cast by Terry Crowe and that the other four challenged ballots be opened and counted. Also, it recommended that the Employer's objections be overruled in their entirety and, should the Petitioner win the election after the challenged ballots have been opened and counted, that the Petitioner be certified as the collective-bargaining agent for the above-described unit; but, should the Petitioner lose the election, then a hearing should be conducted with respect to Objections I, 2, 3(a), and 5 filed by the Petitioner, which raise issues similar to those alleged in the complaint in the unfair labor practice proceedings. The Employer having filed exceptions to the Acting Regional Director's report, the Board, on April 7, 1977, issued a Decision and Order Directing Hearing (not reported in bound volumes of Board Decisions) in which it adopted the Acting Regional Director's findings and recommendations; ordered that the challenged ballots, other than the ballot of Terry Crowe, be opened and counted and a revised tally of ballots be prepared and served on the parties; and ordered that Case 5-RC-9834 be consolidated with the unfair labor practice proceedings for purposes of hearing, ruling, and decision with respect to the issues raised by Petitioner's Objections 1, 2, 3(a), and 5, if a majority of the ballots counted are not for the Petitioner, and with respect to the challenge to the ballot of Terry Crowe if his ballot is determinative of the outcome of the election. Thereafter, a revised tally of ballots was issued on April 15, 1977, which shows that of approximately 51 eligible voters 24 ballots were cast for the Petitioner, 26 ballots were cast against the Petitioner, and there is I undetermined challenged ballot which is not determinative of the outcome of the election. Upon the entire record in these cases' and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a Maryland corporation, operates retail grocery stores in Lexington Park and Hollywood, Mary- land. During a representative period of 12 months, the Company's gross revenues are in excess of $500,000 and it purchases and receives supplies valued in excess of $50,000 which are shipped to its Maryland stores through channels of interstate commerce from locations outside the State of Maryland. The Company admits, and I find, that it is an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I No objection having been filed to the motion of counsel for General Counsel, dated June 28, 1977. to correct the caption and the transcript in these proceedings, the same hereby is granted. 2 Unless otherwise indicated all dates refer to the year 1976. 3 In order to reach all the employees. two speeches were made at each II. THE LABOR ORGANZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 11I. THE ALLEGED UNFAIR LABOR PRACTICES Respondent operates two food stores in southern Maryland, one in Hollywood and the other in Lexington Park. It is a family-owned and -operated business. The principals are James Manning McKay and his wife Marilyn Ann McKay, who are respectively president and secretary-treasurer of the Company. In addition, Respon- dent's daughter, Betty Johnson, and her husband, Frank Johnson, work for the Company. These four are admitted agents and supervisors. McKay's son, Thomas McKay, who is a student, works for the Company sporadically. The complaint alleges and Respondent denies that Thomas McKay is an agent of the Company insofar as his involvement in an alleged unfair labor practice is con- cerned. Other admitted supervisors and agents of Respon- dent are Richard Spencer Hammett, manager of the Hollywood store; Roger Carroll, manager of the Lexington Park store; and William Andrew Hebb, meat manager at the Hollywood store. In the fall of 1976 the Union was engaged in an effort to organize the employees in Respondent's stores and in connection therewith filed a representation petition on September 142 pursuant to which an election was conduct- ed on November 24. Respondent is opposed to the organization of its employees and campaigned against the Union during the 2 months preceding the election. The thrust of the complaint in Case 5-CA-8296 is that statements made by Respondent's agents in that period exceeded legitimate permissible campaign activity and unlawfully infringed upon employees' statutory rights. James McKay testified that the subject of the Union's organizing campaign was openlygdiscussed between the employees and management prior to the election. In this respect his testimony was corroborated by most of the witnesses who were called to testify for General Counsel. According to James McKay, prior to the election, "I walked around in the stores as I normally do, even now, that I probably devoted a bit more time in contacting or talking with most of the employees that work for me." In these conversations McKay sought to dissuade the employ- ees from voting for the Union in the pending election. Shortly before the election McKay made a speech to the employees.3 Also, in late October, James McKay mailed a letter to the employees in which he sought to explain why a union would not be in their best interests and, prior to the election, distributed to the employees a leaflet which describes the right of employers to replace economic strikers.4 store. General Counsel does not contend that the content of the speeches was unlawful. 4 The leaflet merely contains quotations from the Board publication entitled "A layman's guide to basic law under the National Labor Relations Act." 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Interference, Restraint, and Coercion The complaint in Case 5-CA-8296 sets forth in subpara- graphs (a) through (k) of paragraph 5 the conduct which is alleged to constitute violations of Section 8(a)(1). 5 I. Interrogation Three witnesses, John Fant, Marylou Manderville, and Michael Dicus, testified on behalf of General Counsel in support of the allegation that Respondent unlawfully interrogated employees "concerning their own and fellow employees' membership in and activities on behalf of the Union." Fant testified that I or 2 weeks before the election during a conversation with Manager Hammett near the produce section of the store Hammett "asked me what did I think about the union, what did I plan to get out of it?" Fant replied that he would like to make more money. Hammett did not contradict Fant's testimony. Although Fant further testified that he had discussed the Union with Hammett two or three times before and that Hammett knew that Fant favored the Union, "the seeking out of [John Fant] and interrogating [him] as to the basis for [his] union adherence . . . intruded into [the employees'] Section 7 rights and would reasonably tend to have a coercive effect"6 and therefore constitutes a violation of Section 8(a)(1). Michael Dicus testified that three or four times following union meetings Hammett "asked me who was at the meetings, and I told him, 'You know who were at them,' and he named the people that were there. .... I told him a few people, but on one occasion I told him, and he knew the rest of them. On every one of them occasions we talked about, he knew everybody that was there." In respect to these conversations Richard Hammett testified that several times during the period of the union campaign Dicus came to his home without invitation and volunteered the information that Dicus had been at a union meeting and the names of other porsons who had attended. I credit Hammett's versions of his encounters with Dicus. None of the witnesses at the hearing testified at any length. Although my opportunity to observe the witnesses and to evaluate their testimony was limited, nevertheless, I gained distinct impressions regarding the credibility of various witnesses. Richard Hammett, who testified carefully and without equivocation, impressed me as being a reliable witness. I credit Hammett's version of his conversation with Dicus, rather than Dicus whom I consider an unreliable witness. Accordingly, I find no violation by reason of the conversations described by Dicus. Marylou Manderville testified that after she had attend- ed a union meeting Hammett asked her whether she had gone to the union meeting and, when she replied in the affirmative, he asked who else had been there. According to Manderville's further testimony, "I told him some of the names that were there, and he added-a few more." I credit 5 In her brief, counsel for the General Counsel states that the record contains "no evidence in support of paragraphs 5(a), insofar as it relates to Marilyn McKay, 5(d) insofar as it relates to William Hebb and Richard Hammett, 5(f), 5(g) and 5(i)." It appears that "5(g)" is a typographical error and should read "5(h)." Hammett's denial that he had such conversation with Manderville. Manderville further testified that on another occasion Hammett "asked me if I was for the union or against it, and I told him I had not made up my mind, and he stated that if he was working there as an employee, and the union came in, he would quit because he did not think that they were helping us. They were just out for our dues." For the reasons set forth above, I find that this incident, not denied by Hammett, violates Section 8(a)(1). Manderville also testified that "[o]n the morning of the election William [Hebb] asked me if I was for or against the union, and I told him I had not made up my mind, but I could not see where it would hurt us any." Hebb denied having asked Manderville such question, but testified that on the day of the election he asked her if she had voted "because I wanted to be sure everybody voted." I credit Hebb's version of his conversation with Manderville and therefore find no violation of the Act by reason of the incident.7 2. Impression of surveillance The pertinent allegation of the complaint adverts to the conduct of Richard Hammett, James McKay, and William Hebb "in creating the impression of surveillance of the union activities of employees by telling employees they had attended union meetings and acknowledging they knew what other employees had attended the union meetings and that certain statements were made by employees at these union meetings." The testimony of Dicus in support of this allegation was denied by Hammett and I credit the denials. Evelyn Drew testified that after two or three of the meetings that she had attended Richard Hammett "asked if we enjoyed the union meeting we went to the night before." Sandra Bean testified that in September 1976, as she and Michael Dicus were in the produce room looking through the glass in the door which separated the produce room from the selling floor, she observed Union Representative Ron Reaume enter the store. Richard Hammett was present and also observed Reaume. Then, according to Bean, "Mike and I just kind of laughed a little bit, you know, when Richard [Hammett ] seen [Ron Reaume] because he started for the door, and Richard turned around, and he said, you know that I know who goes to those union meetings." The testimony of Drew and Bean is not contradicted. Respondent's defense to this allegation of the complaint, as expressed in its brief, is that "the identity of the employees who were attending meetings, the substance of the discussions at the Union meetings, etc., were fairly and openly discussed and were matters of common knowledge. This fact was substantiated by the Respondent's witnesses such as Mr. Hammett, for example, who testified that employees often voluntarily told him they had attended union meetings and what was discussed. The entire thrust of the General Counsel's case with regard to this allegation 6 CBS Records Division of CBS, Inc., 223 NLRB 709 (1976). 7 While I do-not believe that Manderville consciously testified untruth- fully, I am of the opinion that she was uncertain in her recollection of some of the events about which she testified and that her testimony was not fully reliable. 710 FAIRLAND MARKET, INC. is that [the Company's representatives] remarked or implied that they knew the identity of employees who attended Union meetings. But the General Counsel's own witnesses admitted that these matters were common knowledge and openly discussed between themselves and members of management." The record in this case supports Respondent's argument that there was free and open discussion between the employees and management repre- sentatives concerning the Union; that the names of employees who attended union meetings were voluntarily given to company representatives, particularly to Ham- mett; and that the company representatives generally knew who attended union meetings and the employees were aware that the company representatives possessed this knowledge. In these circumstances, I find that the testimo- ny of Drew and Bean does not create an impression that the Company was spying upon the employees' union activities. 8 William Hebb testified that upon the invitation of employee Jim Dorn he attended one of the union meetings. He further testified that when he was invited to attend the meeting he did not understand that there was any impropriety involved and also that he did not inform other members of management of his attendance. Contrary to General Counsel, I find this incident does not support the allegation that Respondent created the impression that it was engaged in the surveillance of its employees' union activities. 9 Jackie Siebert, who worked in the meat department at the Hollywood store, testified that "[s omebody had started the rumor around that [James McKay] was supposed to buy William [Hebb] a new car, and I don't know how it got started." On the day of the election, "Mr. McKay came in the back and he asked William or he told William that he heard he was supposed to buy him a new car, and then he said, 'it is a shame we have liars working back here.' And then before he left he said he had heard that I was the one that said it that night at the union meeting, and I told him I was not even at that meeting, and he said, 'Well, that is how those people operate.' " The testimony of Siebert is to the effect that the rumor that was circulating in the store reached McKay and is not fairly subject to the construction that because McKay was spying upon the employees' union activities he learned what supposedly was said at a union meeting. I find that General Counsel has not proved by a preponderance of the evidence the allegation that Respon- dent unlawfully created the impression that it was engaged in surveillance of its employees' union activities. 3. Threats to close stores It was "generally known" that the Lexington Park store had been losing money for some period of time. Testimony was adduced by General Counsel purporting to establish that employees were threatened that if they selected the s Ohmite Manufacruring Company., Subsidiar, of North American Philips Corporation, 217 NLRB 435 (1975). enfd. 557 F.2d 577 (C.A. 7. 1977); Deringer Mfg. Company, 201 NLRB 622, 626-627(1973). 9 Fraley di Schilling, Inc., 211 NLRB 422 (1974). '° The complaint in Case 5-CA 8355 refers to the individual as Leonard Francis Drury. The transcript of record refers to Leonard Drury as the Union as their representative the Company would close that store. William Hebb testified that one day as he was leaving the Lexington Park store one of the checkers asked him "something or other about it." According to Hebb, "I never said that if the union won the election the Lexington Park store would close. It is common knowledge and has been for two years that the Lexington Park store is losing money. Employees have asked me if I thought the Lexington Park store would stay open if the union won. I told them that it was my personal opinion that I did not believe the Lexington Park store would be able to make it. This is based on my 13 years experience in the meat business." Counsel for the General Counsel in her brief argues that "Hebb's statement that the Lexington Park Store might close should the Union win the election would violate Section 8(a)(1) of the Act." However, contrary to General Counsel, all forecasts that a business establishment might close following unionization are not unlawful. As the Supreme Court stated in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969): [An employer's prediction about the consequences of unionization] must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his con- trol .... in case of unionization. Hebb's carefully phrased response to an inquiry directed to him by an employee does not exceed the bounds of permissible prediction as defined in Gissel. Leonard Drury' 0 testified that "before the election in October. . . I was working back in the produce room, and [Store Manager Roger Carroll] walked up and asked me what did I think of the union. I had told him that I had relatives working at Safeway, and I was listening to what they had said and I would make my own decision. .... He said that if it got in they would have to lay off one cashier, two cashiers, one bag boy and one stock person to pay my salary. .... That the Hollywood stores or either Lexington Park would have to close down or cut their hours." Roger Carroll testified that he had one or two conversa- tions with Drury about the organizing campaign. Accord- ing to Carroll, Drury asked if there could be a strike and Carroll answered that that was a possibility. Drury asked whether the Company would be forced to sign a contract and Carroll replied that the Company could not be forced to sign a contract, that there was collective bargaining, which "was something that went between just the union representatives and the company, and in the event they did not reach settlement there could be a strike .... " Also, according to Carroll, Drury asked if the store would be forced to close and Carroll answered that there had been no discussion about closing the store. I believe that Carroll's testimony in regard to the conversation in question was more reliable than Drury's and accordingly individual who was called as a witness. However, when asked to state his name, the witness answered that his name is William Drury. In her brief, counsel for the General Counsel continues to refer to this individual as Leonard Drury. I am unable, on the record before me, to resolve the question as to what is Mr. Drury's given name. I shall refer to him as Leonard Drury. 711 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that no violation of the Act is established by reason of the described incident. Michael Dicus testified that about 2 weeks before the election James McKay in a conversation with him said, "If we would go on strike we would lose our jobs if we come back. Him and his family could take care of the store if we did go on strike, and they could hire people off the street to come in and take our jobs, and we couldn't get them back. ... If the union came in, he would have to close Lexington Park Store and maybe bring his employees from there over to this store and cut some of our hours back." James McKay denied Dicus' testimony. As I am of the opinion that Dicus was an unreliable witness, I do not credit his testimony. On the day of the election, before reporting for work, Evelyn Drew distributed sample paychecks outside the Company's Hollywood store. The paychecks purportedly represented what the employees would be earning if they worked for Jumbo Food Company. According to Drew, after she reported to work Marilyn McKay said to her that "the sample paychecks I was passing around would have nothing but zeros on it if Foodland stores were forced to close down." 11 Marilyn McKay testified that she spoke to a majority of the employees at the Hollywood store about the sample paychecks. According to Mrs. McKay, she told the employees that "those paychecks look mighty nice but that we were not no Jumbo store and if the union came in and there happened to be a strike that those paychecks may have zeros on them." I credit Marilyn McKay. Not only did she impress me as being a truthful witness but the attendant circumstances lend plausibility to her testimony. First, it was the Lexington Park store, not the Hollywood store, that was losing money so that it would not be logical to threaten that the Hollywood store would be closed. Second, her husband, James McKay, in his efforts to resist the Union's organizing campaign emphasized to the employees in his speeches to them and in personal talks with them that in the event of a strike permanent replacements could be hired which might mean that the strikers would not have jobs to which to return immediate- ly upon the termination of the strike. It is more likely that Marilyn McKay would follow her husband's campaign tactics rather than those of her own devising, particularly as Respondent was using the services of experienced labor counsel. Accordingly, I find that the incident described by Drew (and also by Bean) does not establish a violation of the Act. 4. Threat to change or reduce hours In support of this allegation of the complaint, counsel for the General Counsel in her brief points to testimony of Michael Dicus and Leonard Drury, which testimony is discussed above and which I have discredited. Hi Sandra Bean testified that she overheard a conversation between Marilyn McKay and Marylou Manderville during which Mrs. McKay said, "I don't care who wins this election. I am just sick of it, but if the union comes in, I hope the people that want this learn their lesson, those sample 5. Threats of loss of jobs In support of this allegation of the complaint, paragraph 5(e), General Counsel relied upon the testimony of Leonard Drury and Sarah Downs. Drury's testimony upon which General Counsel relies was discussed above and was discredited. Sarah Downs testified that during an employment interview with James McKay on September 24, "[hle said that if he had a union problem and if the union came in that he would-most likely the last people to be hired would be the first to lose their jobs." James McKay testified more fully about the conversation. According to McKay, he told Downs substantially what he tells all employees during their employment interviews, that the last employee who is hired if there is a layoff will be the first to leave. He also told Downs that there was some labor activity in the stores, that at some point in time he would talk to all the employees, and he hoped that she would not let the labor activity distract her from her job. I believe James McKay was a more reliable witness than Sarah Downs and I credit his version of their conversation. Accordingly, I find General Counsel has not proved by a preponderance of the evidence the allegations set forth in paragraph 5(e) of the complaint. 6. Threat to eliminate holiday benefits The only witness who testified in support of this allegation of the complaint was Michael Dicus who testified that 2 or 3 weeks before the election he had a conversation with Richard Hammett and "[w e got to talking about the union and I asked him. I said, 'Richard, what do you think about the union.' He. . . told me that if the union came in that we would lose a lot of our paid holidays." Dicus was unable to recall anything else about that conversation and Hammett was not questioned about the subject. However, during the preelection period both James McKay and Richard Hammett in their discussions with the employees compared the benefits the employees were then enjoying with those set forth in a written agreement, a copy of which they had with them and showed to the employees, between Pappas Food Markets, Inc., and Retail Store Employees Union, Local 962, AFL- CIO, covering a food market located in Baltimore, Maryland. Respondent argues in its brief that "Richard Hammett engaged in a legitimate comparison of Respon- dent's holiday benefits with those of another employer which had negotiated a collective-bargaining agreement." While I do not disagree with this argument, as the only evidence in the record concerning the conversation in question is the testimony of Dicus and as Dicus' version of the conversation was simply that Hammett said that in his opinion if the Union came in employees would lose a lot of paid holidays, I find that this testimony supports the allegation set forth in paragraph 5(g) of the complaint and constitutes a violation of Section 8(aX 1). checks you received this morning, after the union comes in, if the union comes in, your checks will read zero, zero. zero." Manderville did not testify to any such conversation. 712 FAIRLAND MARKET, INC. 7. Threats to change work schedules The only testimony offered by General Counsel in support of the allegations in paragraph 5(j) of the complaint that Respondent unlawfully had threatened employees with changes in their work schedules should the employees select the Union as their representative was by Marylou Manderville concerning remarks made to her and Michael Dicus by Thomas McKay on the afternoon of the election. Thomas McKay is the son of James and Marilyn McKay. General Counsel does not contend that Thomas McKay was a supervisor. Manderville testified that she was hired in September 1976 so that on the day of the election she had been working for the Company less than 3 months. The pertinent testimony regarding the status of Thomas McKay was the following testimony by Manderville: Q. When you were hired you were assigned directly to produce? A. Uh-huh. Q. And Tommy McKay was in produce at that time? A. Yes. He was supposed to train me because he was leaving to go to school. Q. Did Tommy McKay punch a timeclock, do you know? A. He did. Q. He did? A. Yes. Q. In and out every day just like you? A. Yes. Q. What in that period of time did he show you how to do? A. How to wrap and how to package the things, price them, how to order some things, just a general idea of what was to be done. Q. And how long was it until he left? How long were you there? A. I think I was there two or three weeks before he was supposed to go to school. Q. Then he left? A. Yes, and he came down on weekends. Q. Did you do all those things in his absence? A. To the best I could. Based upon the foregoing testimony General Counsel makes the following argument: "Tommy McKay worked in the Hollywood store full time until he went to school 12 and then he worked on weekends, Moreover, he had trained Manderville and given her directions as to how to display items, etc. As a member of the McKay family, employees would obviously look upon what he said as representing the views of his father. Accordingly, Respon- dent should be held accountable for such statements made by Tommy McKay because he would have the apparent authority, at least in the employees' eyes, of speaking for Respondent." General Counsel's argument comes to nothing more than that the relationship of Thomas McKay 12 There is no testimony that Thomas McKay ever worked in the store full time. Manderville's testimony is that when she was hired he worked in the store 2 or 3 weeks before he left for school. to the principals of the Company automatically makes him an agent of Respondent so that his statements regarding the consequences of unionization are attributable to the Company. I do not believe that that is the law. According- ly, as there is no evidence that Thomas McKay occupied a position that caused employees to believe that he was speaking for the Company,'3 or that his alleged incrimina- tory remarks were made in the presence of either of his parents or with their knowledge and approval,l4 I find that Thomas McKay was not an agent of the Company, as alleged in the complaint, and therefore I shall dismiss this allegation of the complaint. 8. Threats of stricter working conditions Margaret Briscoe, who had worked as a cashier in the Lexington Park store, testified that about a month before the election she had the following conversation with Betty Johnson: I was eating a cupcake, and she said, "Margaret, you know, if the union comes in you won't be able to eat on the job anymore. . . [b]ecause in the union you cannot eat, and you always have to be busy at all times." And then she said to me that if we went out on strike that her father could get replacements for us and would not have to hire us back, and we would lose our job, and then she went and got this . . . National Labor Relations book, I think that is what it was, and she tried to show me in the book where it was saying that if we went out on strike that he could get replacements for us and would not have to hire us back, and I said, "Betty, well, I cannot look at the book because you told me I had to keep busy." So, I went and started putting up cigarettes in the cigarette case. According to Briscoe, Betty Johnson was not joking and sounded serious to her. Betty Johnson's version of the incident is that on a Saturday morning she was talking to another girl and Margaret Briscoe interrupted, "but kiddingly," and she said, "Oh, you don't know what the hell you are talking about." Johnson replied in the same kidding fashion, "Margaret, enjoy your cupcake." Betty Johnson denied telling Margaret Briscoe that she would not be allowed to eat a cupcake. Although Margaret Briscoe's testimony was brief I was favorably impressed by her manner on the stand and by her apparently thoughtful effort to answer the questions put to her exactly as she remembered the events. I believe Briscoe was a reliable witness and I credit her version of the conversation rather than Betty Johnson's version. I find that Johnson's statement to Briscoe that if the Union came in she would not be able to eat on the job anymore constitutes an unlawful threat of reprisal in violation of Section 8(aX 1). a3 See Whiting Corporation, 188 NLRB 500, 502 (1971). 4 See N.L.R.B. v. Chanmpa Linen Service Company, 324 F.2d 28, 30 (C.A. 10, 1963). 713 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Demotion of Leonard Drury The complaint alleges that on January 3, 1977, Respon- dent unlawfully demoted Leonard Francis Drury because of his membership in, assistance to, and activities on behalf ofthe Union. Drury's activities in support of the Union's organization- al campaign consisted of passing out 3 or 4 authorization cards among the Lexington Park store's 22 employees, attending all of the approximately 10 union meetings, being I of 2 employees who wore a "vote yes" button on the day of the election, and acting as the Union's observer during the balloting at the Lexington Park store. Drury was hired in May 1972 as an assistant in the produce department where he worked until May 1975, when he was transferred to the meat department as a meatcutter. In September 1975, according to Drury, "[t]he manager from the produce department had quit, and I asked Mr. McKay if I could take over in that department." His request was granted and he assumed the new position during the last week in September 1975.15 There is no contention that in the new position Drury was a supervisor or a managerial employee, although while Drury headed the produce department Thomas Kohut, a part-time employee, whose primary duties were in the dairy depart- ment, assisted Drury. Store Manager Carroll directed Drury in the performance of his duties in the produce department. During the time that Drury had charge of the produce department, its profitability showed a substantial decline. Thus, prior to Drury's accession to the position the gross profit percentage of the produce department for the first three quarters in 1975 was 25.83, 26.84, and 21.21, respectively. Thereafter, while Drury was in charge of the produce department, the quarterly gross profit percentages fell substantially. For the respective quarters ending as follows they were: December 27, 1975 March 27, 1976 June 26, 1976 September 25, 1976 19.38 percent 17.95 14.19 13.88 Drury testified that about a month before the election James McKay spoke with him about the profit figures for the produce department.'6 According to Drury, McKay "said that the profits weren't too high. It was low and that something was going to have to be done to bring the produce department back up to par, and we were losing too much money." McKay instructed Drury to remove damaged produce from the display racks, "go over it, rewrap it and put it out in the special display bin at a reduced price." After this conversation, according to t5 While Drury testified that he had become the produce manager, this appears to be a title he attributed to himself because Drury did not testify that at any time he was informed by James McKay or anyone else in authority that he had the title of produce manager. it James McKay testified that on several other occasions he told Drury that unless there was an improvement in the profitability of the produce department he would have to take some action. According to McKay, he tried to encourage Drury and to show him how to sell some of the deteriorated merchandise. i7 Drury testified that when he worked in the produce department prior Drury, he made efforts to improve the performance of the produce department. Instead of throwing away damaged merchandise, as instructed by McKay he rewrapped it and sold the merchandise at reduced prices. He then was able to sell approximately half of such merchandise. Also, according to Drury, he discontinued purchasing merchan- dise that did not sell well and brought new items into the department.l7 Leonard Drury testified that he was informed of his demotion on Monday, January 3, 1977. Present were himself, James McKay, Frank Johnson, Roger Carroll, and Thomas Kohut. James McKay said that the profits in the department were not as high as they should have been, too much merchandise was being thrown away, too much rotten produce was in the case, and all the merchandise was not being checked off the trucks and properly accounted for. He then said that "[h]e was going to put Frankie Johnson in charge and with my help to help Frankie on any problems he had with the produce. I was to help him out in that, the orders or anything else that came up." Frank Johnson is the McKays' son-in-law and has had 8 to 10 years' successful experience as produce manager of the Company's Hollywood store. Although Frank Johnson took charge of the produce department on January 3, 1977, no one informed Leonard Drury that his title had been changed (if he officially ever had any title).18 Further, Leonard Drury did not suffer any reduction in his wage rate or earnings, and so far as the record shows he did not suffer any change in his fringe benefits. Thus, the only changes that occurred were that Johnson assumed responsibility for the performance of the produce department, Drury was relieved of such responsi- bility to the extent that he had exercised that responsibility prior to January 3, 1977, and Drury's primary work activities thereafter were in the dairy department. t On cross-examination, James McKay testified that his son-in-law, Frank Johnson, who had been ill for a long period of time, in the fall of 1976 had informed McKay that he was prepared to return to work. In a prehearing affidavit which James McKay gave to a Board agent he stated: "After the third quarter figures came out I decided to replace Drury. The union campaign was going on and I was not paying as much attention to the figures as I normally would. Also, I knew if I replaced Drury during the campaign there would be problems. I did not have the profit figures for the last quarter of 1976, until the middle of January 1977. So, when I replaced Drury I did so based on the first three quarter figures. Johnson indicated to me in the fall of 1976 that he was ready to come [back to to May 1975 most of the damaged produce was reworked, but this was not done after he returned to the produce department in September 1975 until McKay spoke with him in October 1976. 18 Employees do not wear tags which identify their position in the store and there is no evidence that titles as such have any meaning or purpose in the store's operation. 19 On cross-examination, Drury testified that he spoke with Store Manager Roger Carroll about his demotion and Carroll advised him that it was "lb ]ecause of the profits and loss and of merchandise." Drury testified that he did not disagree with Carroll's judgment. 714 FAIRLAND MARKET, INC. work]. I was preoccupied at the time and did not do anything about it." 20 On the record before me I believe there is serious doubt whether Respondent discriminated against Leonard Drury within the meaning of Section 8(a)(3). However, it is unnecessary to decide that question because I find that the Company decided to place Frank Johnson, a qualified and experienced produce manager whose performance for many years at the Hollywood store had been good, in charge of the produce department at the Lexington Park store in order to improve the profitability of that depart- ment which during the prior year and a half under Drury's aegis had been performing poorly and that General Counsel has failed to prove by a preponderance of the evidence that this action was taken in reprisal against Drury because of his union membership or union activities. Other than acting as the union observer for the Lexington Park store at the election there is no evidence that Drury had a prominent role in the Union's organiza- tional campaign. The alleged reprisal against Drury consisted merely of reducing his responsibilities with no change in pay or other employee benefits. This is not such a retaliatory action as would discourage union membership or activities. The fact that James McKay deferred taking the action objected to prior to the election, when he had decided that something had to be done to improve the profitability of the produce department and when Johnson became available to return to work, cannot fairly be twisted to mean that the delay was prompted by an effort to conceal an unlawful motive as counsel for the General Counsel contends in her brief.2t I shall recommend that the allegations of the complaint with respect to the demotion of Leonard Drury be dismissed. Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship 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 the Company has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in 20 At another point during his examination, James McKay testified that Frank Johnson "indicated about Thanksgiving 11976] he was able to come back to work, just prior to lhanksgiving. but I did not take him back at that time . . Simply because the fact of the matter is that I wanted to make sure that he was ready to come back. and I wanted to talk to him, and he Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Representation Proceeding In its Decision and Order Directing Hearing, the Board ordered a hearing "on the issues raised by Petitioner's Objections I, 2, 3(a) and 5." These objections read as follows: I. The Employer unlawfully interrogated employ- ees as to how the employees would vote in the election and as to their union activities, such as, for example, whether they attended union meetings. 2. The Employer unlawfully threatened and coerced employees when supervisory personnel un- truthfully and falsely told employees that: (a) if the Union won the election, the Employer would probably have to cut hours or cut the available working hours for employees; (b) if the Union won the election, the Employer would have to institute lay-offs. 3. The Employer unlawfully threatened and coerced employees when supervisory personnel told employees that: (a) if the Union won the election, the stores or the Lexington Park store may, or would be, closed. 5. The Employer unlawfully threatened and coerced employees by engaging surveillance of employ- ees in the exercise of the Section 7 rights, such as attendance at Union Meetings, and by threatening employees with the appearance of surveillance by telling employees that the Employer knew who attend- ed Union Meetings and what was said at the meeting. I have found hereinabove that Respondent unlawfully interrogated employees John Fant and Marylou Mander- ville during the period between the filing of the representa- tion petition and the election. However, the other objec- tions were not proved. On the other hand, I have found that during the critical period preceding the election Respondent threatened Michael Dicus that the employees would lose a lot of their paid holidays if the Union should win the election and threatened employee Margaret Briscoe that if the Union came in she would not be permitted to eat on the job and would have to be busy at all times. Although these last two incidents are not referred to in the objections, nevertheless, they may be considered in determining whether or not the election should be set aside. "It is well settled . . . that the Board may properly consider evidence discovered during a postelection investi- gation, and that such evidence alone may be used to set aside an election. The Board has held that. . . an election may be set aside ... where objections to the election were had simply called and said he was ready to go back to work, and I wanted to talk to him prior to that.... I wanted to be sure that he was ready." 21 In her brief, counsel for the General Counsel asserts, "McKay must have felt that if he waited a respectable time after the election, his real reason would be overlooked." 715 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found to be without merit, but where the employer had engaged in various unfair labor practices which were discovered during the postelection investigation." 22 The issue thus becomes whether the unlawful conduct engaged in by Respondent during the critical period preceding the election was sufficiently egregious to warrant setting aside the election. As stated in N.L.R.B. v. Golden Age Beverage Company, 415 F.2d 26, 32 (C.A. 5, 1969): [The proper test for setting aside an election] is not whether any improprieties occurred during the cam- paign, but whether, in the circumstances, the particular conduct complained of "created an environment of tension or coercion such as to preclude employees from exercising a free choice. For conduct to warrant setting aside an election, not only must that conduct be coercive, but it must be so related to the election as to have had a probable effect upon the employees' actions at the polls." N.L.R.B. v. Zerlich Company, 344 F.2d 1011, 1015 (5th Cir. 1965). In this case the business establishment involved has two sites, one in Hollywood and the other in Lexington Park. Of the 51 employees who were eligible to vote, approxi- mately 29 worked in the Hollywood store and 22 in the Lexington Park store. The four incidents occurred at the Hollywood store. While Hammett's questioning employees Fant and Manderville may not have been serious impinge- ments upon the employees' protected rights, the threat to Dicus that if the Union prevailed in the election the employees would lose a lot of paid holidays and the threat to Briscoe that stricter working conditions would be imposed upon the employees if the Union won the election cannot be considered trivial. The final tally of ballots shows that the vote was 26 against the Union, 24 for it, and I ballot was challenged. A change of one or two votes could have affected the results of the election. In these circumstances, I find that the unlawful conduct engaged in by the Company was so related to the election as to have had a probable effect upon employees' actions at the polls, and I shall recommend that the election be set aside and a new election directed. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in these proceedings, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 23 Respondent Fairland Market, Inc. d/b/a Foodland, Lexington Park and Hollywood, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully questioning employees concerning their desires for union representation or their attitudes towards or reasons for supporting Retail Store Employees Union, Local No. 400, AFL-CIO, or any other labor organization. (b) Threatening employees with the elimination of existing holiday benefits or with the imposition of more strict working conditions or with other reprisals should the employees select Retail Store Employees Union, Local No. 400, AFL-CIO, or any other labor organization, as their collective-bargaining representative. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its places of business in Hollywood and Lexington Park, Maryland, copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations in the complaint of violations of Section 8(a)(l) and (3) of the Act be dismissed except insofar as specific violations of Section 8(a)(1) are hereinabove found. IT IS FURTHER RECOMMENDED that the election conducted on November 24, 1976, be set aside and a second election be directed in accordance with the Rules and Regulations and practices of the Board. 22 Pure Chem Corporation, 192 NLRB 681(1971). 23 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 24 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 question our employees concerning their desires for union representation or their attitudes towards or reasons for supporting Retail Store Employ- ees Union, Local No. 400, AFL-CIO, or any other labor organization. WE WILL NOT threaten our employees with the elimination of existing holiday benefits or with the imposition of more strict working conditions or with other reprisals should they select Retail Store Employ- 716 FAIRLAND MARKET, INC. ees Union, Local No. 400, AFL-CIO, or any other labor organization, as their collective-bargaining repre- sentative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. FAIRLAND MARKET, INC. D/B/A FOODLAND 717