Crowley, Milner And Co.

CROWLEY, MILNER AND COMPANY Crowley, Milner and Company and Retail Store Employees Union Local No. 876, Retail Clerks International Association, AFL-CIO, Petitioner. Case 7-RC-11907 February 4, 1975 DECISION AND CERTIFICATION OF RESULTS OF RERUN ELECTION BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO Upon a petition filed on July 12, 1973, and pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Regional Director for Region 7 of the National Labor Relations Board on August 1, 1973, an election by secret ballot was conducted on September 20, 1973, among the employees of the Employer in an appropriate unit noted below. At the conclusion of the election, the tally of ballots showed that the results of the election were inconclusive due to the number of determinative challenges. Petitioner also filed timely objections to that election. The objections and challenged ballot issues result- ed in a hearing before a Hearing Officer who issued his report on December 26, 1973, recommending that the election be set aside. No exceptions to the report were filed within the allotted time period and, on February 5, 1974, the Board adopted the Hearing Officer's report and recommendation, issued its Decision, Order, and Direction of Second Election, and pursuant to same a rerun election was conducted on March 7, 1974. Upon the conclusion of the rerun election, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regulations . The tally of ballots showed that, of approximately 235 eligible voters, 223 ballots were cast, of which 100 were for and 118 were against the Petitioner . There were five challenged ballots which were insufficient in number to affect the results of the rerun election. On March 14, 1974, the Petitioner filed timely objections to conduct affecting the result of the election. Thereafter, the Regional Director investigated the objections and, in April 1974, issued a report and order in which he concluded that the objections raised substantial and material issues of fact and credibility which could best be resolved by a hearing. Accordingly, a hearing was conducted on April 15, 16, 17, 18, and 19, 1974, before Hearing Officer i During the hearing, Petitioner requested permission to withdraw Objection 6. There was no opposition to that request , and the Hearing Officer recommended that Petitioner's request to withdraw its Objection 6 be granted. 216 NLRB No. 71 443 Theodore C. Niforos for the purpose of taking evidence on issues raised by all of the Petitioner's objections. Thereafter, on July 11, 1974, Hearing Officer Niforos issued his report and recommendations on objections in which he recommended that Petition- er's Objections 1, 2, 3, 5, and 7 be sustained; that Objections 4 and 8 be overruled;' and that the election be set aside on the basis of those objections he sustained. Thereafter, the Employer filed excep- tions to the Hearing Officer's report and a supporting brief, and Petitioner filed a reply 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 reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agree, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees, including heads-of-stock and including all leased department employees, at the employer's facility located at Westborn Mall, Dearborn, Michigan; but excluding store manager, assistant store manager, employment manager, office manager, area supervisors, confidetitial employees, and professional employees, guards and supervisors as defined in the Act. 5. The Board • has considered the Hearing Offi- cer's report and recommendations, the Employer's exceptions and brief, the Petitioner's reply brief, and the entire record in the case and hereby adopts the Hearing Officer's findings,2 conclusions, and recom- 2 The Employer excepts to various findings of the Hearing Officer on the ground that he erred in crediting certain testimony. It is the established policy of the Board not to overrule a Hearing Officer's credibility resolutions unless the clear preponderance of all the relevant evidence (Continued) DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendations only3 to the extent consistent herewith. Objections 1 and 2:4 In Objection 1, Petitioner alleged that the Employer engaged in unlawful surveillance of prounion employees during the election campaign and, in Objection 2, it alleged that the Employer discriminatorily enforced its no-solici- tation no-distribution rule by granting to antiunion employees certain rights it denied prounion employ- ees. Since certain of the evidence the Hearing Officer considered regarding Objection 1 was also consid- ered by him in his analysis of Objection 2, we shall consider these objections together. In recommending that Objection I be sustained, the Hearing Officer relied on (1) certain testimony of employees Abbott, Jagusch, and Mesner that, during the 30-day period prior to the rerun election, they were followed about the selling floors 5 by supervisors and security personnel; (2) activities of certain of the Employer's supervisors which allegedly constituted unlawful surveillance of prounion employees; and (3) an incident involving employee Abbott and Supervi- sor O'Donnell, which allegedly demonstrated in concrete fashion this unlawful surveillance. As the Hearing Officer correctly concluded, the testimony of Abbott, Jagusch, and Mesner, to the effect that they were allegedly followed about the store by employer representatives during the election campaign, is largely subjective, and the subjective opinions of these pro-Petitioner employees are not substantial evidence supporting the contention of surveillance. The Hearing Officer also made reference to the alleged surveillance activities of Employer Supervisor Smelewski and Security Supervisor Russu. Both men, during the campaign, visited in various parts of the department store, observing the activities of the employees as they walked about. We note, however, that it is not unlawful under the statute for an employer to observe the activities of an employee carried on in the [workplace] and in working time,"6 and thus this complained-of activity by Supervisors Smelewski and Russu cannot be considered objec- tionable. Unobjectionable also is the admitted fact that, in the 2-week period prior to the election, the Employ- er's supervisors were generally at the store more often and for longer hours. This is so especially in light of the further admitted fact that both pro- and anti-union employees were permitted to spend a convinces us that the resolutions are incorrect . See Connor Trading Company, Inc., 188 NLRB 263, 264 (1971), fn. 4, and cases cited therein. We have carefully examined the record and find no basis for reversing his findings 3 In the absence of exceptions, we adopt pro forma the Hearing Officer's recommendations that Petitioner be allowed to withdraw Objection 6 and that Objections 4 and 8 be overruled as lacking in merit. 4 We shall consider the five objections which the Hearing Officer great deal of time out of their departments during the preelection period, soliciting others to vote for or against the Union as their interests indicated. Because of this large amount of employee activity, it would seem only natural that the Employer, to insure the continued orderly running of its business, might have more than the ordinary supervisory comple- ment present in its store to see that the employees' union-related activities did not hinder the pursuit of their ordinary work duties. Nor, in all the circumstances, does the incident involving employee Abbott and Supervisor O'Donnell constitute objectionable surveillance. As the Hearing Officer related, on an unspecified date, within 2 weeks of the rerun election, employee Abbott arrived at the store ahead of her scheduled worktime. As she was taking an escalator up to the cafeteria, she noticed two of Petitioner's agents coming down the down side of the escalator. She motioned that she wished to speak to them and they waited for her to come back down the escalator. She then stepped through some nearby glass doors and outside of the store proper with the agents into an outer public area while a third agent of Petitioner remained just inside the glass doors on the selling floor. As was the Employer's practice, its supervisors had followed each of Petitioner's three agents from the time they entered the store. Supervisor O'Donnell had been following the business agent who remained inside the store and O'Donnell had gone to the glass doors with that agent and remained there. It appears that the agent whom O'Donnell was observing left his position by the door for a time and then returned but that O'Donnell remained at the glass doors during the agent's absence . The Hearing Officer found that during this time O'Donnell from time to time "intently" watched Abbott's conversation with the two agents outside of the doors and found this to be evidence of impermissible surveillance of Abbott's activities with the two agents. We think the O'Donnell incident is insufficient to raise an inference of improper surveillance sufficient to warrant the sustaining of this objection. Not all surveillance is prohibited by the Act. Rather it is the type of surveillance which interferes with, restrains, or coerces union activities which is prohibited.7 We conclude this was not such a type of surveillance. The incident was nonthreatening and was not repeated; it involved only one supervisor and one recommended be sustained in the following order I and 2, 5, 3 and 7. S The facility involved here is a department store having various departments on each of its three levels. As noted above, there were over 200 persons who were eligible voters in the rerun election. 6 N L.L.R. B. v. The R. C. Mahon Company, 269 F.2d 44,47 (C A 6, 1959) r N.L.R B v. Atkins Saw Division of Nicholson File Company, 399 F.2d 907, 910 (C.A. 5, 1968) CROWLEY, MILNER AND COMPANY employee in a store with a large number of supervisors and over 200 employees. Moreover, observance of the single employee was merely incidental to the Employer's lawful surveillance of Petitioner's agents from the time they entered the store. It clearly does not warrant setting aside the election in such circumstances. While Objection 2 alleged a discriminatory en- forcement of the Employer's no-solicitation no-distri- bution rule against pro-Petitioner employees, the Hearing Officer considered this objection in terms of unequal treatment in general accorded pro-Petitioner vis-a-vis anti-Petitioner employees by the Employer. In recommending that this objection be sustained, the Hearing Officer relied on the "balloon" incident, and on a grouping of occurrences he found indicated that the activities of the antiunion employees were regarded in one way by the Employer while the activities of Petitioner's adherents were regarded in another. At the outset, we note that it is not contended that the Employer's no-solicitation no-distribution rule at its Westborn store was invalid in any regard. Petitioner claims, however, it was discriminatorily applied. We reiterate as further background, howev- er, that both pro- and anti-Petitioner employee adherents spent a great deal of time during the rerun election campaign out of their own working depart- ments during their working time soliciting other employees either against or in favor of the Petitioner. There were no repercussions visited by the Employer on any employee for such activity, whether anti- or pro-Petitioner. Despite this significant fact, the Hearing Officer concluded that the Employer treated the two groups of employees in an objectionably different manner. To so conclude he relied first on the "balloon" incident. About 3 weeks before the election, a civic group had used balloons in a safety presentation at the store. After the presentation, several employees from the men's wear department took some of the balloons and hung them from cash registers and racks in their department. The words "Vote No" were attached to the balloons. Supervisor Smelewski added one more balloon himself after seeing that others had hung them. He also commented to an employee that her department was more colorful because of the balloons. Another official of Respondent noticed the balloons but did not attempt to have them taken down since he did not think the balloons were a possible form of improper solicitation. However, the next day, the employees' own supervisor chastised s While we are aware of the activities of the other two employer representatives in one 's partially participating, and the other's initially failing to halt this incident, we think the evidence viewed in its totality 445 the employees for having put the balloons up; told them management was upset at what had happened; and warned that such an incident should not occur again. While the Hearing Officer initially concluded that the balloon incident standing alone would not constitute objectionable conduct, he noted that, since he had found the Employer engaged in other conduct which he considered of a similar type and which he considered to be objectionable, he thus viewed the balloon incident, in context, to be objectionable. We conclude, however, that, even were we to agree with the Hearing Officer that other allegedly similar conduct of the Employer was objectionable (a conclusion in which we do not in fact concur for reasons noted below), we would still find the balloon incident unobjectionable. It is clear that the Employ- er took immediate steps to disavow any implied condonation of the employees' actions once the Employer's higher management was made aware of what had occurred. This action took the form of an immediate warning to the employees' own supervisor about what had occurred and the relation to the employees by their supervisor of this warning with the admonition that such an incident should not occur again. There was thus no objectionable disparate treatment of the two groups of employees evidenced by the Employer in this incident.8 The balance of the evidence the Hearing Officer relied on to conclude that activities of pro-Petitioner employees were viewed by the Employer in an objectionably different light than the actions of anti- Petitioner employees included his finding that (1) Supervisor Roberts had urged four employees to wear their "Vote No" buttons in anticipation of the arrival of the Employer's president at the store; (2) the Employer's president had termed certain anti- Petitioner literature distributed by some of the employees as evidencing a "loyalty" to the Employ- er; and (3) pro-Petitioner employees were subject to surveillance by employer representatives when they engaged in their activities or when they left their departments. Since we have already concluded that the Employ- er did not engage in any objectionable surveillance of its employees' activity, we do not rely, as the Hearing Officer did, on any of the evidence relating to that alleged surveillance as indicating that the Employer viewed- the pro-Petitioner employees' activity in an objectionably disparate manner. We also do not rely on the Employer's president having termed anti-Petitioner literature as showing a loyalty to the Employer as an indicator of objection- demonstrates clearly that the Employer in no way approved of this incident and took stern measures to so indicate to its employees. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ably disparate treatment toward pro-Petitioner em- ployees. As the Hearing Officer correctly concluded in refusing to find this incident an independently objectionable incident (as alleged in Objection 4), there is no inference present in the letter that, by deeming pro-Petitioner employees "loyal," all Peti- tioner's supporters were deemed disloyal. The presi- dent's remarks, as noted by the Hearing Officer, were specifically directed to the anti-Petitioner employees' literature and not generally to their efforts or attitude and, as the Hearing Officer correctly concluded, to infer from the Employer's statements a blanket condemnation of all employees sympathetic to Petitioner would be to read into those statements more than was present. In such circumstances, however, we cannot agree with the Hearing Officer that this letter can be relied on as a factor demonstrating the Employer engaged in objection- ably disparate treatment of certain of its employees. An employer has the legal right openly to oppose a union and he may express himself freely on labor matters "as long as his statements do not contain threats of reprisal or force or promise of benefit."9 Here, the Employer's statements contained none of these elements and the letter was not only unobjec- tionable of itself but it cannot be used to support a finding of disparate treatment here. The last incident the Hearing Officer noted to support his finding of disparate treatment was also the basis for his recommended sustaining of Objec- tion 3. Employee Abbott testified that a week or so before the election, while she and three other unit employees were in the credit office with Credit Manager Roberts (an admitted supervisor), Roberts asked Abbott and the other three employees to put on their "Vote No" (against Petitioner) buttons since the Employer's president was coming into the store. Employee Abbott was a union adherent while, according to Abbott's own testimony, the other three employees were against the Union and had, in fact, previously worn "Vote No" buttons. Abbott testified that she wore her own "Yes" (for Petitioner) button at times during the campaign and she was never told to remove it. This incident is the only one of its type alleged. The unit consists of over 200 employees. In light of these facts and the fact that Abbott was never asked to remove her own "Yes" button and the fact that the other three employees had already exhibited "Vote No" buttons, we conclude that, even were we to find this incident evinced disparate treatment, it would not, standing alone, be sufficient to sustain Objection 2. Since we have found no other evidence supporting that objection, we shall overrule Objection 2. 9 Indiana Rayon Corp. v. N.LR.B., 355 F.2d 535, 539 (C.A. 7, 1966). 10 O'Brien had asked Smith when she might expect a raise. Objection 5: The conduct the Hearing Officer concluded was objectionable here concerns an incident which occurred about 2 weeks before the election. At that time, Supervisor Giant approached employee Mesner and asked her why she was so strong for the Union. The supervisor said she was curious because she knew the employee was leaving her job with the Employer soon and she asked what good would the Union do Mesner. Mesner, who was an obvious union adherent and who frequently wore a "Yes" button, told the supervisor that her support for the Union was mainly for the other employees who were not leaving. The Hearing Officer, basing his conclusion in part on the extent of supervisory participation which he found objectionable in Objec- tions 1 and 2, concluded that this interrogation, in context, was not insubstantial and warranted sustain- ing the objection. We disagree. We note initially that we have found in Objections 1 and 2, contrary to the Hearing Officer, that the supervisory activity that did occur in the election campaign was not objectionable. Hence, there is no context of illegal supervisory activity in which we place this incident. Further, we find this incident itself to be unobjec- tionable. Employee Mesner was openly a union sympathizer and Supervisor Giant merely inquired of her why she supported the Union since she was leaving the Company shortly. This is understandable in the circumstances and we find there was no threat or coercion in the question. We therefore dismiss this objection. Objections 3 and 7: The remaining objections which the Hearing Officer sustained are Objections 3 and 7. The incident with Supervisor Roberts and the "Vote No" buttons constitutes the substance of Objection 3, while Objection 7 concerns Supervisor Smith's statement in February 1974 to employee O'Brien that O'Brien would probably receive a 30-cent raise if the Union did not get in but, if the Union won, O'Brien would have to go along with what the Union gave her.10 The Hearing Officer found that this promise of a raise to O'Brien by Smith if Petitioner lost the election was sufficient to sustain Objection 7.11 In considering the effect which the conduct involved in these last two objections realistically had on the election, we note that these incidents involved a few employees in a unit of over 200 employees. These were one-of-a-kind incidents and did not reflect any pattern of similar conduct on the Employer's part. In all the circumstances, we find the conduct specified in these objections to be too isolated in nature to have realistically affected the 11 O'Brien told one other employee of this promise. CROWLEY, MILNER AND COMPANY 447 election's results and thus insufficient to warrant setting it aside. Since we have overruled all of Petitioner's objec- tions, we shall certify the results of the rerun election herein. CERTIFICATION OF RESULTS OF RERUN ELECTION It is hereby certified that a majority of the valid ballots in the rerun election held herein have not been cast for Retail Store Employees Union Local No. 876, Retail Clerks International Association, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees in the unit herein involved within the meaning of Section 9(a) of the Act. ACTING CHARIMAN FANNING dissenting: Since I think the Hearing Officer's recommenda- tions that Petitioner's Objections 1, 2, 3, 5, and 7 be sustained are fully supported by the record, and should thus be adopted by the Board and a second rerun election directed, I dissent from the majority's failure to adopt the recommendations of the Hearing Officer. With respect to Objection 1,12 the Hearing Officer has detailed the extent of the Employer's surveillance activities which were clearly sufficient to warrant sustaining this objection. While noting that the testimony of employees Abbott, Jagusch, and Mes- ner regarding the Employer's supervisors' activities was "somewhat subjective" and, therefore, could not constitute an independent basis for sustaining the objection, the Hearing Officer properly relied on other objective evidence which gave credence to the employees' testimony. In this regard, I note especially the Hearing Officer's citation of Supervisor Smelewski's testimo- ny that, whenever he saw any employees who were wearing "Yes" buttons and who were out of their own departments, he was generally inclined to pay more attention to what they were doing than to the activities of any other employees. Smelewski also ventured into the alterations department far more often than usual during the election period as did Security Supervisor Russu, who was allegedly work- ing on a quilt during that period, but who never finished it subsequent to the election. There was no explanation given by the Employer either for the interruption in Russu's work after the election or the necessity of his having to work on that quilt in the alterations department during the election campaign. I note further, regarding this surveillance, Supervisor O'Donnell's blatant and persistent surveillance of employee Abbott as detailed by the Hearing Officer. The majority, in dismissing this incident, fails to note that Abbott was outside the selling area of the store when she was so intently watched by O'Donnell and that the incident was witnessed by a number of other eligible voters. The above activities of the Employer's supervisors become even more objectionable when one consid- ers, as the majority does not, the testimony of Security Supervisor Russu to the effect that he just never noticed that any of the anti-Petitioner employ- ees were out of their departments during the election campaign, while he and other supervisors testified at length about the extent to which pro-Petitioner employees were out of their departments. In light of the admitted fact that both pro- and anti-Petitioner employees spent a great deal of time outside their own departments in campaign activities, Russu's testimony is either contrary to the facts or demon- strates that, regardless of the employee activity on both sides, it was only the pro-Petitioner employees who were the subjects of the Employer' s surveillance. The recitation of the above facts clearly demon- strates that the Employer engaged in surveillance of Petitioner's adherents; gives credence to the employ- ees' impressions of that surveillance; and warrants affirmance of the Hearing Officer's recommenda- tions on Objection 1. Objection 2, in which it was alleged that the Employer discriminatorily enforced its no-solicita- tion no-distribution rule by granting rights to antiunion employees it denied to prounion employ- ees, should also be sustained. The Hearing Officer was clearly correct in considering in this objection of alleged disparate treatment surveillance which he had found unlawful in Objection 1, including particularly Russu's comment that he never noticed anti-Petitioner employees were out of their depart- ment campaigning against the Union but he did notice that pro-Petitioner employees were out of their departments during the campaign when, in fact, both groups were regularly out of their respective depart- ments during that time. Additionally, the Hearing Officer was also correct in relying on the following further actions of the Employer's supervisors: (1) the balloon incident, which was participated in by one of the Employer's own supervisors, and which the Employer's assistant store manager not only failed to stop but found amusing ; and (2) the incident with the "Vote No" buttons where a supervisor of the Employer urged employees to wear their "Vote No" buttons in anticipation of the Employer president's arrival. 12 1 shall consider the objections in the same order as the majority. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considered together, the above incidents make it clear that, although the Employer did not directly enforce its no-solicitation no-distribution rules on the employees, it still applied its ad hoc no-enforcement policy in an uneven manner. Thus, antiunion employees were encouraged to take full advantage of the Employer's lifting of its usual rules by the fact that the Employer's supervisors condoned and to some extent participated in their activities, e.g., the balloon incident, and never noticed antiunion em- ployees were out of their departments. Conversely, prounion employees were discouraged from taking full advantage of the lifting of the rules since their activities were subject to other interference; e.g., surveillance. In such circumstances, the Hearing Officer properly recommended that Objection 2, dealing with this disparate treatment, be sustained. He also properly recommended that Objection 5 be sustained. This objection involved Supervisor Glant's asking employee Mesner why she was so strong for the Union and what good the Union would do Mesner. The Hearing Officer properly did not consider this incident in isolation but, noting the substantial objectionable supervisory conduct in the election campaign here, correctly concluded that in such circumstances this interrogation which occurred in the store during working hours was not insubstan- tial and thus warranted sustaining this objection. It appears that the majority does not quarrel with the conclusion that the remainder of the objections which the Hearing Officer recommended be sus- tained, i.e., Objections 3 and 7, do involve objection- able conduct. I, too, conclude that the incidents involved in these objections clearly constituted objectionable conduct, but, unlike the majority, and for the reasons the Hearing Officer has set out, I would sustain both Objections 3 and 7. The Employer's actions which the Hearing Officer found objectionable included unlawful surveillance; objectionable disparate treatment of pro-Petitioner vis-a-vis anti-Petitioner employees; unlawful interro- gation; supervisory solicitation of eligible voters to engage in antiunion activity; and the promise of a wage increase should Petitioner lose the election. The majority attempts to dismiss as isolated and minimal those segments of this activity which it cannot construe as unobjectionable. However, the incidents found objectionable by the Hearing Officer were, in total, neither isolated nor insignificant; were engaged in by a number of the Employer's supervisors; and were directed at a number of the employees eligible to vote in the election. In such circumstances, the Hearing Officer was clearly correct in recommending that the election be set aside based on such conduct of the Employer and I therefore dissent from the majority's failure to adopt these eminently correct recommendations of the Hearing Officer's Report attached hereto. APPENDIX III. REPORT ON OBJECTIONS IN CASE 7-RC- 11907 Preliminary Matters: During the Hearing, Counsel for Petitioner request- ed that Petitioner be permitted to withdraw its Objection 6. Inasmuch as no other party objected and due to the lack of evidence in support of said objection, I recommend that the Petitioner's request be granted and that Objection 6 be considered withdrawn. As with Case 7-RC-11905, I shall not consider the objections in the order they were originally filed. Rather, again for reasons which will be obvious, I shall consider the objections in the following order: 3, 4, 5, 7, 8, 1 and 2. Objection 3: The Petitioner alleges that the Employer coercively demanded that employees engage in antiunion activities, including requesting that employees wear "Vote No" buttons. The prime incident in support of this objection was described by credit office employee Patricia Abbott. Within two weeks prior to the rerun election, she and three other unit employees were in the credit office along with credit manager Peggy Roberts (the parties stipulated to Roberts' supervisory status under the Act). According to Abbott, prior to the rerun election, some of the other credit office employees wore buttons bearing the words "Vote No." On this occasion, those present had not donned their "Vote No" buttons. Credit Manager Roberts advised Abbott and the three other employees that Employ- er's president, R. E. Winkel, was coming to the store. According to Abbott, Roberts then asked the employees where their "Vote No" buttons were, and told them to put them on. Roberts spoke to no one in particular but generally asked everyone present to put on their "Vote No" buttons. Credit Manager Roberts testified that on a morning early in Febru- ary, having heard that Mr. Winkel was coming to the store, she requested the credit office employees present to put on their Employer furnished name badges, since many of the employees were in the habit of not wearing them. She denied asking anyone to wear "Vote No" badges even though she was aware that some of the employees under her supervision wore them most of the time. None of the other three employees involved were called as witnesses by either party. Roberts further testified that it was general Employer policy that employees CROWLEY, MILNER AND COMPANY 449 should wear their name badges at all times while rendering customer services. With regard to this incident, I credit employee Abbott's account. If, as Roberts claims, employees were in the habit of not wearing their name badges, then certainly it would not have been an unusual occurrence for her to have requested them to put them on. On the other hand, what would have been more unusual, as obviously occurred, was for Roberts to tell employees to put on their "Vote No" badges, which were acknowledged by all parties at the hearing to denote opposition to the Petitioner. Moreover, as will be more fully described infra, I have found Abbott to be a generally reliable and credible witness. The Board has consistently held that encouragement by supervisors of employees to wear "Vote No" or other antiunion buttons or badges constitutes interference with elections. Spar- tus Corporation, 195 NLRB 134, 139, 145, enfd. granted (C.A. 5, 1973) 471 F.2d 299, 82 LRRM 2383; Kellwood Company, 206 NLRB No. 118, fn. 2; Gary Aircraft Corporation, 193 NLRB 108, 122, enforce- ment granted 468 F.2d 562 (C.A. 5, 1972). I, therefore, find merit to Objection 3 and recommend that it be sustained. Objection 4: Petitioner asserts that the Employer told employees who were in sympathy with Petitioner that it was disappointed in them and also characterized them as disloyal. The testimony in support of this objection again comes from credit department employee Patricia Abbott. She testified that on February 26, 1974, when some employees distributed literature opposing the Petitioner, Store Manager-in-training John Mur- phy approached her with a copy of the antiunion literature and allegedly told her that he was disap- pointed that her name was not on the list and also allegedly asked why she hadn't signed. According to Abbott, her response was that it was unfair for the antiunion committee to be allowed to circulate the document throughout the store on company time and obtain signatures on it, since prounion employ- ees would not have the same privilege and were likely to have the document torn before they obtained a second signature. According to Abbott, Murphy's response was that everyone has a right to his opinion. The foregoing testimony was given by Abbott during her direct testimony. However, Petitioner's counsel returned to the same topic on redirect, foll owing Employer counsel's cross-examination of Abbott. When asked again whether Murphy had told her he was disappointed in the fact her name was not on the list, Abbott testified that he did not make that statement. Murphy's account of this incident is that when he came into work that day, someone handed him a copy of the antiunion literature outside of the store. He had it in his hand when he entered the store. Before he had a chance to arrive at his office, he encountered Abbott who asked him about the literature. He told her that he felt good about it. Abbott responded that that made her mad, since the literature had been passed all over the store, signed during the working hours and that union people were not allowed to do that. Murphy claims that he merely observed that she was obviously in favor of the union and went to the office. He denies asking Abbott why her name was not on the document or saying that he was disappointed in her. Petitioner asserts that another incident involving Abbott would also sustain the "disappointment" aspect of this objection. Abbott testified that on one occasion, during the thirty-day period prior to the rerun election, as she was speaking to an employee about funeral arrangements, store manager Howard Hourigan approached them, stated he was real disappointed in her and also said that "this kind of talk is not supposed to go on during business hours." At the time Hourigan spoke to her, Abbott had a "Vote Yes" button pinned on her purse. Abbott and the other employee were admittedly not discussing the election or union matters when Hourigan made his comments. Moreover, during cross-examination, Abbott acknowledged that in contrast to her prior good employment record, she had just prior to this incident, received criticisms from her supervisor about taking personal telephone calls and frequently leaving her work area. With respect to the Abbott/Murphy "disa- ppointment" incident, I find that the evidence will not sustain the objection. Abbott's contradictory testimony, suggesting perhaps confusion with the Hourigan incident, has led me to conclude that Murphy's account of this incident is the true one. With regard to the Abbott/Hourigan "disa- ppointment" incident, in view of the fact that Abbott admittedly was not discussing union matters, or the election, it is the Hearing Officer's conclusion that it would be overreaching to assume that Hourigan further assumed that Abbott and the other employee were discussing the union or the election. The presence of the "Yes" button on Abbott's purse does not change my conclusion. The record herein is replete with description of the number of employees wearing "Yes" buttons prior to the rerun election. Thus there was nothing unusual in the presence of such a button on Abbott' s purse during this encounter. In spite of the remarks of Hourigan that he didn't want "this kind of talk" going on during business hours, I view his remarks to be too equivocal to constitute objectionable conduct. Ac- 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cordingly, I recommend that the "disappointment" aspect of Objection 4 be overruled. The evidence in support of the "disloyalty" aspect of Objection 4 is contained in an Employer campaign letter dated February 26, 1974, from Employer President R. E. Winkel, addressed to "Westborn Associates." The issuance of this letter, Petitioner's Exhibit 8, coincided with the distribution of the antiunion literature described above, a copy of which has been described as being in Manager-in-Training Murphy's possession. The first paragraph of exhibit 8 states, "Today a group of your fellow associates known as the Crowley's Anti-Union Organizing Committee distributed a letter at Westborn, express- ing their support for Crowley's. I was personally gratified by this open expression of loyalty. I know their effort takes courage especially when you consider the pressure often exerted by the other side." The letter then continues to clarify certain claims made in the committee literature to the effect that the changes in wages and benefits made in Employer stores not involved in the instant repre- sentation proceedings were neither the fault of the Employer nor the Petitioner. The tone of the letter is explanatory and noncoercive . Petitioner asserts that by deeming the Anti-Union Committee and its efforts "loyal," by revetse logic, all Petitioner supporters were deemed disloyal. No interference is present in Winkel's remarks contained in his Febru- ary 26, 1974, letter. His remarks were specifically directed to the Anti-Union Committee's literature and not generally to their efforts or their attitude. To infer from this Employer letter that it was a blanket condemnation of all employees who sympathized with, or supported the Petitioner, is to read into the Employer's literature more than is present. Accordingly, based on the foregoing, I find -no merit in Objection 4 and recommend that it be overruled. Objection 5: Alleged coercive interrogation is the subject matter of this objection. For the reasons discussed above under Objection 4, I find no improper coercive interrogation with respect to the Abbott/Murphy conversation of February 26, 1974. Petitioner witness Mary Mesner described an incident of interrogation occurring approximately 2 weeks prior to the election. Mesner works in the womens' accessory department. On the evening in question, between 7 :00 and 7 :30 p.m., her supervisor, Winnie Giant, approached her. According to Mes- ner, Giant asked her why she was so strong for the Union. Giant further said she was curious because she knew Mesner was leaving her employment with the Employer soon and asked what good would the union do Mesner. Mesner told her it was mainly for the other employees who were not leaving . Mesner was an obvious union adherent, frequently wearing a "Yes" button on her clothing. Giant did not testify. The Employer asserts that , granting the truth of Mesner's testimony, the single, nonthreatening, incident was so isolated so as not to affect the election in any manner. Were this the only incident occurring in this unit of in excess of 200 employees, the Hearing Officer might tend to agree with the Employer's contention of isolation . However, in view of the substantial supervisory participation in the election campaign in this matter, I cannot agree that this incident of interrogation occurring in the store during working hours is insubstantial . Cf. Helfrich Vending, Inc., 209 NLRB 596, and cases cited therein. The extent of supervisory participation in the campaign is to be discussed further infra, under the discussion of Objections 1 and 2 . In the case of the Glant/Mesner conversation , its pleasant and non- threatening nature does not remove the coercion inherent in such interrogation. Monroe Manufactur- ing Company, Inc., 200 NLRB 62. Nor is it a defense for the Employer that Glant obviously knew prior to the questioning that Mesner was a Petitioner adher- ent. Globe- Union, Inc., 194 NLRB 1076, 1078. Accordingly, based on the foregoing, I find Objection 5 to be meritorious and shall recommend that it be sustained. Objection 7: The Petitioner alleges that the Employer promised its employees changes and improvements in their wages, hours, and other conditions of employment in the event the Petitioner was unsuccessful in the election. The Petitioner presented several witnesses who testified, generally, that at various times , supervisors discussed certain "changes" with them. Among these employees are Patricia Abbott and Melena Jagusch. However, their discussions with supervisors clearly concerned remodeling changes being made in the store and had no relation to changes in wages, hours, benefits or other conditions of employment. In addition thereto, several witnesses testified that at speeches made at meetings sometime priot to the election but outside the 24-hour period, departing Store Manager Howard Hourigan and incoming Manager John Murphy made promises of "changes" if they were given a chance. The testimony concern- ing these meetings devolved into a common factor, that being that both Hourigan and Murphy read their speeches from prepared documents and did not depart from the texts thereof. The texts of the speeches being referred to were submitted into evidence. Based upon an evaluation of said speeches, I find no improper promise of benefits . Hourigan merely recounted his past experience with the store, CROWLEY, MILNER AND COMPANY 451 noted the bitterness this "union business had caused" and asked the employees to give the store and his successor a chance. Upon being introduced as new manager, Murphy generally replied to the Petition- er's theme of "Nothing's Changed" (see discussion of Objection 4 above, under Case 7-RC-11905). Mur- phy also distinguished between the Petitioner's ability to make promises and Employer promises, by noting that the latter could not do so because it had the power to implement promises. However, the speech contains no explicit or implicit promise of changes in wages, hours, benefits or other conditions of employment. Thus, there is no evidence to support the "changes" aspect of Objection 7. The remaining evidence in support of Objection 7 comes from bath department accessories employee Rachel O'Brien and her accounts of conversations with Personnel Manager Betty Smith. The essential aspects of O'Brien's testimony are as follows: In October 1973, after returning from a leave of absence for surgery, O'Brien discussed a wage increase with Personnel Manager Smith. O'Brien told Smith at that time that she thought she deserved a raise. Smith replied that O'Brien last had a raise in April 1973, raising her wages to $2 an hour. At this time, Smith told O'Brien that she could not do anything for her because Smith's hands were tied. In February 1974, having heard that other employees received raises on their anniversary dates, O'Brien again spoke to Smith concerning when she might receive her raise and to clarify in her mind what her anniversary date was. At the time she did so, O'Brien told her supervisor, Helen Rappy, of her intention to speak to Smith. In Smith's office, where the two women were alone, O'Brien was told by Smith that for purposes of granting raises, the term anniversary date meant the date of the last raise, which was April 1973. Smith then told O'Brien that she could not give a raise earlier because of the union. O'Brien then asked whether she didn't deserve a raise. Smith agreed that she did, that she was a hard worker and was on top of her list. -According to O'Brien, Smith then told her that if the Union did not get in, she would probably receive a 30-cent raise. However, if the union did get in, she would have to go along with what the union gave her. When she returned to her department, O'Brien told her supervisor, Helen Rappy, about the 30-cent raise she had been promised. She recalls Rappy telling her that if Smith had promised her a raise, she would get it. Soon after this conversation, O'Brien told fellow employee Arlene Height about the raise she had been promised and the circum- stances under which she had been promised it. Height so testified. After the election, on Tuesday, April 9, 1974, O'Brien, was called into Smith's office. There she was told it was reviewing time and that she was receiving a 10-cent raise. O'Brien immediately protested because she was not receiving the 30-cent raise she had been promised. According to O'Brien, Smith now denied ever quoting her a 30 cent figure. Smith then read aloud something about the National Labor Relations Board and told O'Brien that it would be her word against hers, Smiths', because they were going to court the following Monday. O'Brien then asked about another raise and Smith told her she didn't know while this union thing was still going on. When she returned to her department, O'Brien told Rappy about getting a 10-cent raise and not 30 cents. Rappy replied that she thought O'Brien had earlier told her a 25-cent raise had been promised by Smith and not 30 cents. O'Brien did not significantly vary her testimony on cross-examina- tion. On direct examination, Personnel Manager Betty Smith recalled that her first meeting with O'Brien on the subject was, as O'Brien testified, in October 1973 when O'Brien returned from surgery. Smith said that it was at that time that O'Brien asked for a raise and Smith. responded that her hands were tied, that O'Brien would have to wait for her anniversary date. She told O'Brien that this was policy. She said that it was at that time that she agreed that O'Brien was a hard worker and that they discussed the amount of the raise. Smith recalled that it was during the October meeting that she said she thought O'Brien deserved a 25- or 30-cent raise and that she would be happy to give her that amount but at the time she could do nothing for her. In her direct examination, Smith recalled that O'Brien came in again in February 1974 and asked about a raise and when her anniversary date occurred. At that time, Smith's secretary obtained O'Brien's personnel record and Smith showed O'Brien that her anniversary date was in April. Smith stated that nothing else occurred. Smith agreed that O'Brien came in on April 9, 1974, after Smith had implemented a 10-cent-per-hour increase for her. Smith so informed O'Brien, who became upset, saying she thought she would be getting a 25 to 30 cent increase. Smith testified that she showed O'Brien the notice of election, the rules stated thereon and stated that there was nothing she could do. She denied any reference to the Petitioner at this or prior meetings and stated that the raises were not tied to the outcome of the election. Smith's testimony then varied substantially on cross-exami- nation. Thus, she later admitted that she and O'Brien discussed O'Brien's receiving a 25- or 30-cent raise again in February when O'Brien came in to see her. Also, during cross-examination, she admitted telling O'Brien that it was due to the Petitioner that her hands were tied, admitting that the Petitioner was mentioned. Finally, she also admitted telling 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O'Brien, on April 9, 1974, that it would have been O'Brien's word against hers in regard to whether O'Brien had been promised a 25- or 30-cent raise. In view of the inconsistent and shifting nature of Betty Smith's testimony, I credit O'Brien's account of the February and April conversations. Thus, even relying on external factors, O'Brien's story is more consistent. Smith admitted on cross-examination that anything more than a 10 cent raise was unusual. This gives credence to Petitioner counsel's argument that had it been only an ordinary raise that O'Brien had been promised, she would have raised no furor. Moreover, Employer's counsel conceded that if Supervisor Helen Rappy had been called as a witness, which she was not, she would have corrobo- rated O'Brien's repetitions to her of the promises by Smith of the 25 or 30 cent raises. The slight discrepancy in O'Brien's testimony as to whether she had been promised a 25 or 30 raise, in my view, is inconsequential and does not affect her credibility. What is clear is that she was promised a 25 or 30 cent raise by Smith in the event the Petitioner lost the election. I credit O'Brien's testimony that such a promise was made by Smith. As Petitioner has established, the promise to O'Brien was made known by O'Brien to another employee, I, therefore, find merit to Objection 7 and recommend that it be sustained. Objection 8: This objection has three aspects. The first alleges that the Employer embarrassed and humiliated union sympathizers in front of other employees by calling such employees dumb, stupid liars. The second alleges that Employer agents told other employees not to talk with or socialize with union sympathizers and finally, that the Employer engaged in surveillance of the Petitioner adherents. With respect to the surveillance allegation , this is covered by Objection 1 and will be fully considered there. Patricia Abbott and men's clothing department supervisor Patricia O'Malley, prior to the advent of the Petitioner's organizing efforts, had been close personal friends. Abbott, the younger of the two, sought, and was given, advice and counsel by O'Malley with regard to both employment and personal affairs . O'Malley testified that earlier in the day of the incident which gave rise to the objection, she learned that Abbott had been "dating" one of the Petitioner's business agents who was involved in organizing activities at the store . Abbott had men- tioned, in front of O'Malley, other supervisors and employees, that she was going on a "date" with the particular organizer involved. O'Malley stated, and was not contradicted by Abbott, that she told Abbott that afternoon that she was being made a fool of, regardless of whether the union got in or not, she would never see the particular business agent again. O'Malley, who I found to be a highly credible witness, readily admitted to her dislike of many of the Petitioner business agents assigned to the Westborn store. In fact, she concocted what are apparently derogatory nicknames for them which she was not permitted, by counsel, to describe. Both O'Malley and Abbott bowl in an Employer-spon- sored mixed bowling league on Wednesday evenings during the bowling season. That same evening, as Abbott arrived at the bowling alley and went into the women's locker room, she encountered O'Malley and fellow employee Doris Wilk. As Abbott entered the locker room, O'Malley was highly upset, and told Abbott that she would like to kick her in the ass. Both Abbott and O'Malley agree that at this point Wilk left the locker room. O'Malley then said to Abbott that she was sick and tired of the union and the things that were going on and that she would like to show Abbott and the other employees what the union was trying to do to them, trying to use them. She told Abbott she felt like asking to be relieved of her duties as a supervisor just to show the employees what the business agents were trying to do to the staff, that the employees were all "dummies and stupid" because they couldn't see what the business agents were doing to them. In her anger, O'Malley threw two bowling balls to the floor as she spoke, and left the locker room. Later that same evening during bowling activities, Abbott sought to make amends, attempting to put her arm around O'Malley's shoulders. O'Malley, in front of other employees, shrugged Abbott's arm off. Neither woman said anything having to do with the prior conversation. Four or five days later, and prior to the election, O'Malley approached Abbott and apologized to her, telling Abbott it was none of O'Malley's business what Abbott did with her life. The day after the bowling alley incident, Abbott described the incident to her supervisor, Peggy Roberts, who merely told her that she received what she deserved. O'Malley's remarks to Abbott in the bowling alley locker room can be said to be involved with Abbott's activities on behalf of the Petitioner . However, the remarks were prompted not by said activities but by O'Malley's obvious and sincere concern that Abbott was being taken advantage of by the particular union business agent she had been seeing. The undersigned believes that this conclusion is more than substantiat- ed by the foregoing account of the incident. I would, therefore, conclude that the remarks, which were only heard by Abbott, since Doris Wilk had left before O'Malley angrily explained why she wanted to kick Abbott's posterior, did not interfere with the election in this matter . The remarks were prompted by O'Malley's personal concern for Abbott and I CROWLEY, MILNER AND COMPANY 453 believe it is more than reasonable to assume that Abbott would have understood them to have been so motivated. In any event, any possible coercive effect was negated by O'Malley's apology a few days later. Supervisor Roberts' apparent adoption of O'Malley's comments on the day following the bowling alley incident lends no merit to the objection for substan- tially the reasons outlined hereinabove. Accordingly, finding no merit to Objection 8, the undersigned herewith recommends that it be overruled. Objection 1: In this objection, which is closely intertwined with the allegation of Objection 2, infra, the Petitioner alleges that the Employer, through its supervisors, security personnel and other agents, engaged in unlawful surveillance of employees in sympathy with the Petitioner. Much of the evidence in support of this objection appears to be subjective on the part of several Petitioner witnesses. Thus, Patricia Abbott, Melena Jagusch, and Mary Mesner testified that a significant change occurred during the 30 day period prior to the rerun election in the activities of supervisors. Thus, each of the three individuals mentioned, prior to the election, was wearing a "Vote Yes" button on a regular basis. All three testified that with the advent of the wearing of these prounion buttons, as well as by other employees, various supervisors would, when the employees moved from their own departments to other store areas , follow them. Abbott testified that on one occasion, while she was talking to an employee in another department, about purely business reasons, Manager-in-training Mur- phy passed by the two employees three times within a 5-minute period, with an obvious intent to hear what the two employees were discussing. Murphy denied this incident. Jagusch claims that Security Supervisor Nicholas Russu followed her frequently during the 30-day period prior to the election. If he was not doing the following, then female security employees under his supervision generally arrived at where Jagusch was going when she left her own depart- ment. Jagusch also testified that she saw employee Mildred Holmes, who also frequently wore a "Yes" button, being followed by security employees. The foregoing general "following" allegations have been denied by the Employer's supervisory witnesses. As originally noted in the discussion of this objec- tion, the foregoing evidence is also somewhat subjective. However, certain other evidence lends substantial credence to the testimony regarding alleged surveillance. Thus, the Employer and Peti- tioner stipulated, at the hearing, that in the 2 week period prior to the election, the Employer's supervi- sors were generally at the store more often and for longer hours. Patricia O'Malley was requested to come in the store for a short time on her days off immediately prior to the election. She was to keep watch over certain departments when other supervi- sors could not be present. In addition, children's shoe department Supervisor Kenneth Smelewski tacitly admitted that whenever he saw any employees wearing "Yes" buttons out of their own departments, he was generally inclined to pay more attention to what they were doing than to the activities of any other employees. In this regard, alterations depart- ment employee Lillian Roberts testified that during the period immediately prior to the election, Supervi- sor Smelewski came into the alterations department far more often than was usual. Smelewski would enter the alterations department, look to see what the employees were doing, and leave. According to Roberts, this had not been Smelewski's practice prior to the period preceding the rerun election. Smelewski did not deny his activities in this regard. In addition, Security Supervisor Nicholas Russu was present in the alterations department during the period prior to the election sewing a quilt. Apparently, Russu had begun work on this quilt prior to February 5, 1974, the date of the Board's Order directing a rerun election. He has never completed it, subsequent to the election. The Employer offered no further explanation for this interruption in Russu's work on his quilt, or for the necessity for his being in the alterations department during the period preceding the election. Lillian Roberts was the Petitioner's observer for one of the voting sessions at the rerun election. There is an additional incident which perhaps more clearly illustrates the Employer's actions with regard to surveillance than any other occurrences. Patricia Abbott is again a prime participant. Also involved in this incident is the Employer's admitted practice of assigning various supervisors to follow Petitioner agents whenever any of the latter came into the store. This was described more fully above in the discus- sion of Objection 6(a) in Case 7-RC-11905. The various accounts of this incident, while not complete- ly in accord, are generally not in conflict with each other. Although Abbott places the incident as occurring 2 days prior to the election, it appears, from other evidence, that it took place on some date within the last 2 weeks preceding the rerun election of March 7, 1974. On the day in question, Abbott was scheduled to work during the afternoon and evening. She arrived several minutes before her scheduled starting time of 1:00 p.m. and proceeded up a store escalator, intending to go to the cafeteria on the second level. On the escalator, she saw two Petitioner business agents coming down the down side. She indicated to them that she wished to speak to them and asked them to wait for her on the lower 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD level. Abbott went up, came down the escalator and met the business agents on the first or main level. She proceeded with them to leave the store premises proper through what is known as the "strip doors." These are a series of glass doors leading out to the covered mall area of the Westborn shopping center. As they were leaving the store, they encountered a third business agent who did not accompany Abbott and the two business agents outside of the strip doors. The third business agent remained seated on some chairs which are near the door and close to one of the sales departments. As was the Employer's practice, the three business agents involved, from the time they entered the store, had been followed by supervisors. Sales area Supervisors John O'Donnell and Kenneth Smelewski were following two of the business agents, while Security Supervisor Nicholas Russu was following the third. O'Donnell apparently had been following the third business agent who remained seated on the chairs inside the store. Smelewski and Russu stopped within 30 to 50 feet of the doors when the two business agents they had been following stepped outside with Abbott. Howev- er, O'Donnell went to the glass doors with the third business agent and remained there. There was unrebutted testimony that this third business agent left the chairs for a time and returned but that O'Donnell nevertheless remained at the glass doors, during the agent's absence. There was also testimony that supervisors Winnie Giant and Patricia O'Malley were nearby. Giant's area of supervision is immedi- ately adjacent to the strip doors where the incident was occurring. O'Malley's is further to the rear of the store. The conflict of testimony herein was over whether O'Donnell or the other supervisors who were present watched Abbott speak to the two business agents outside of the store doors or merely stayed with the agent who remained on the chairs in the store. In this regard, I have credited Abbott and other Petitioner witnesses. Their testimony was clear that O'Donnell, from time to time intently watched Abbott converse with the two business agents outside of the doors. While Abbott and the two business agents were technically on Employer property or space, they were nevertheless outside of the sales area of the store. O'Donnell's persistence in remaining by the doors while Abbott conversed with the two business agents, even when the third business agent to whom he was ostensibly assigned left for a time, was unexplained. I can only interpret this persistence as evidence of surveillance of Abbott's activities with the first two business agents. Two employees, Mary Mesner and Melena Jagusch, witnessed this incident. There was Employer testimony that Mesner and Jagusch found it highly amusing. However, I discount suggestive reaction to what might constitute coercive conduct. The evidence also indicated that Smelewski and Russu left within a few minutes after they arrived near the strip doors area. O'Donnell, however, remained the entire time that Abbott was conversing with the business agents outside the strip doors, watching them. O'Donnell did not testify, being unavailable. While the parties jointly requested that I draw no adverse inference from his failure to testify, I nevertheless must credit Abbott's clear and corroborated account of this incident. Under the discussion of Objection 2, below, I shall further discuss an Employer concession in evidence that both antiunion and prounion employees spent a great deal of time out of their own departments during the preelection period, soliciting other em- ployees to vote against or for the Petitioner, as their interests indicated. What is perfectly clear to the undersigned Hearing Officer upon consideration of all the evidence in support of both Objections 1 and 2 is that the Employer evinced a far greater interest in the activities of the Petitioner adherents than those of the antiunion employees . Based on the foregoing evidence in support of Objection 1, I can only conclude that the Employer engaged in regular surveillance of several Petitioner adherents. With the strip door incident, it also engaged in very obvious surveillance of one outspoken Petitioner adherent. I find the foregoing surveillance to be unjustified and coercive in the circumstances of this case. National Tape Corporation, 187 NLRB 321; compare, Sarkes Tarzian, Inc., 169 NLRB 587; Ver-Penn, Inc., d/b/a Indianapolis Downtowner, 205 NLRB 437. As I have found merit to Objection 1, I also find that the foregoing surveillance interfered with the election and shall recommend that Objection 1 be sustained. Objection 2: In this last objection to be considered, the Petitioner alleges that the Employer discriminatorily enforced an otherwise valid no-solicitation, no-distri- bution rule by granting antiunion employees certain privileges and condoning their activities, while denying said privileges to Petitioner adherents. By February 23, 1974, and certainly by February 26, 1974, a number of unit employees at the Employer's Westborn store, who were opposed to the Petitioner's organizing efforts, organized themselves into the "Anti-Union Organizing Committee" (herein referred to as AUOC). The functions of the AUOC appeared to consist solely of publishing two items of literature urging employees to vote against the Petitioner and to support the Employer. As indicated above under Objection 1, AUOC members and adherents as well as Petitioner adherents spent a great deal of time out of their own working departments during working time soliciting other employees either against or in favor of the Petitioner. CROWLEY, MILNER AND COMPANY The Employer conceded that AUOC members and adherents did spend a great deal of time outside their own departments, were observed doing so and that nothing was done about said activity. However, the Employer asserts that neither did it do anything to prevent the Petitioner adherents from leaving their own departments and speaking to other employees during working time. The question underlying this objection is whether the last cited Employer assertion is true. The Employer does maintain a no-solicitation/no- distribution rule at its Westborn store. No one asserted that this rule was invalid in any regard. Rather, Petitioner asserts that it was discriminatorily applied. The earliest evidence of such alleged discriminato- ry enforcement comes from millinery saleslady Irene Fradette. She testified that on or about January 20, 1974, she sold some jewelry in the adjoining jewelry department . She states she was in the jewelry department and out of her own at the request of one of the jewelry salesladies, who was at that time performing some inventory work. After she had completed the sale, she was approached by Store Manager Hourigan who asked her why she was in the jewelry department. When she told him she had been asked to assist, Hourigan told her that she disturbed them and told her to stay in her own department. Hourigan does not deny the incident, but adds that there were two employees in the jewelry department and there was no need for Fradette to be out of her own. He did not testify whether he conducted any investigation into Fra- dette's claim that she had been requested to assist by one of the jewelry salesladies. It is noted that Fradette was an acknowledged Petitioner adherent. However, this incident, standing alone, prior to the Board's February 5, 1974, direction of a rerun election does not fit in with the other evidence substantiating the allegations of Objection 2. Fra- dette admittedly was not engaged in union solicita- tion activities at the time she was in the jewelry department. Her own claim that it was customary practice for her and other employees to assist employees of other departments when requested was counterbalanced, in my view, by Hourigan's equally valid claim that by going to the jewelry department, Fradette had left her own department completely unattended. In any event, I conclude that this incident of January 20, 1974, did not constitute discriminatory enforcement of a no-solicitation rule. Next to be considered is what was termed the "balloon" incident. Immediately prior to February 15 or 16, 1974, a Dearborn, Michigan, civic group, with the apparent consent of the Employer, had been presenting a safety program in a meeting room on 455 the second level of the Employer's Westborn store. As part of the safety program, the civic group representatives had been giving helium-filled colorful balloons bearing safety slogans to customer children who attended the safety programs. On the evening of February 15 or 16, 1974, after the civic group representatives left, a number of mens' clothing department employees from the first floor went to the meeting room where the safety program meetings had been held. There they obtained some of the aforedescribed balloons and brought them down to their own department. On these balloons they either taped signs stating "Vote No" or wrote those words on the balloons with felt pens so that the words were easily readable from some distance. The balloons, by their strings, were then tied to cash registers or clothing racks and were visible from several depart- ments on the main level of the store. Employees participating in this activity were Rick Barkoff, Mary Leventis, Pat Herrick, and Martha Obersteiner. This activity began approximately 6:30 p.m. While the foregoing activities were occurring, Irene Fradette testified that she saw second level Supervisor Kenneth Smelewski bring down several balloons himself, with the "Vote No" slogans on them and also tie them to the registers or racks. Smelewski himself admits bringing down one balloon and putting the slogan on it and suspending it from a rack or register. He is corroborated in this regard by clothing department employee Rick Barkoff, who participated in the balloon incident. I credit Smelew- ski in this regard, mainly based on his prior candor, described above in Objection 1, with respect to the surveillance allegation . Smelewski also testified that he told clothing employee Pat Herrick, another participant, that as a result of the presence of the balloons, her department was more colorful. Fradette also noticed Assistant Store Manager Gordon Dostie come up the escalator from the lower level, see the balloons, smile, and return to the lower level. Dostie, during cross-examination, reluctantly admitted that he had in fact noticed the balloons, the "Vote No" slogans on them, had laughed and had returned to the lower level to his office as a result of being paged over the public address system. He did not claim that he made any effort to have the balloons and their slogans removed that evening. There is some dispute as to the number of the balloons which were suspended. Upon consideration of all accounts of this incident, it is apparent that there were at least half-a-dozen balloons in the mens' clothing depart- ment and perhaps one or two, included in that figure, in the adjacent womens' sportswear department. The balloons remained suspended for the duration of that evening until store closing hours at 9:00 p.m. The following morning, when employees first arrived, 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perhaps one or two still remained suspended. In any event, that morning, when mens' department Super- visor Patricia O'Malley arrived, she admonished the employees under her supervision for having suspend- ed the balloons during the previous evening. She told them that she had been summoned by management and because she had been "chewed out," they were being "chewed out." She also told them not to let such an incident occur again. If this objection was based solely upon the balloon incident and the other testimony summarized above, I would conclude that it had no merit. However, various other objections have come into play in Objection 2. Thus, while both prounion and anti- union employees seemed to have what might be termed "free run" of the store during the 30 days prior to the election, the activities of the antiunion employees were regarded in one way by the Employ- er and its supervisors while the activities of the Petitioner adherents were regarded in another. Thus, from Objection 3, credit department Supervisor Peggy Roberts urged employees to wear their "Vote No" buttons in anticipation of the arrival of the Employer's president. From Objection 4, although the comment was not deemed to constitute interfer- ence of the election in and of itself, the Employer's president termed the AUOC literature as evidencing loyalty to the Employer. Most significantly, from Objection 1, and as conclusive evidence in the undersigned's view of the disparate enforcement or lack of enforcement of the Employer's no-solicita- tion/no-distribution rules, the pro-Petitioner employ- ees were subject to surveillance by supervisors when they engaged in their activities or even when they left their departments. I find significant the testimony of Security Supervisor Nicholas Russu who stated that he just never noticed that any of the employees who were opposing the Petitioner were out of their departments. However, he and other supervisors testified at length the extent to which the pro- Petitioner employees were out of their departments. In this regard, it should also be recalled that Supervisor Smelewski admitted that he found the activities of the employees who wore "Vote Yes" buttons interesting enough to observe for substantial period of time. The balloon incident is a highlight to this conclusion. Smelewski participated only to a small extent. Assistant Store Manager Dostie found the incident amusing. Yet, despite the fact that the Employer's second level of management was aware of what was occurring, it was not until the following morning that the employees who had engaged in such an open display of campaigning were admon- ished by the Employer. The Board has found that supervisory assistance in, and condonation of, antiunion or "Vote No" activities constitute a violation of Section 8(a)(1) and hence; interference with an election. Murray Ohio Manufacturing Company, 156 NLRB 840, 851-852; The Conolon Corporation 175 NLRB 27, 28, enforce- ment denied on other grounds 431 F.2d 324 (C.A. 9; 1970). I find that in regard to Objection 2, the allegations have been sustained by the evidence. The Employer and the supervisors condoned and, to some small extent, participated in the activities of the employees opposing the Petitioner. Moreover, the activities of those employees were complimented, while the employees assisting and favoring the Petitioner were subject to surveillance and other interference. Accordingly, I find merit to Objection 2.