United States Lines, Inc.

UNITED STATES LINES, INC. United States Lines, Inc. and General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America. Cases 21-CA-12548 and 21-RC-13610 March 27, 1975 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On November 18, 1974, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. The General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders the United States Lines, Inc., Long Beach, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the election held on March 21, 1974, in Case 21-RC-13610 be, and it hereby is, set aside, and that Case 21-RC-13610 be, and it hereby is, remanded to the Regional Director for purposes of conducting a new election. [Direction of Second Election and Excelsior footnote omitted from publication.] DECISION WILLIAM J. PANNIER III, Administrative Law Judge: These cases were heard by me at Los Angeles, California, on Sep- tember 12 and 13, 1974.1 The Complaint and Notice of Hearing in Case 21-CA-12548 was issued on May 16 by the Regional Director for Region 21 of the National Labor Rela- 1 Unless otherwise stated, all dates occurred in 1974. 117 tions Board, on the basis of an unfair labor practice charge filed on March 27, and alleges violations of Section 8(a)(1) of the National Labor Relations Act, as amended, 20 U.S.C. Sec. 151, et seq., herein called the Act. The said Regional Director has also consolidated for hearing with those unfair labor practice allegations the issues presented by three chal- lenged ballots and the Union's objections in Case 21-RC-13610 by a Report on Challenged Ballots and Objec- tions and Order Directing Hearing and Order Consolidating Cases and Notice of Hearing dated May 23, and by an Order Directing Hearing on Challenged Ballots and Notice of Hear- ing dated August 2,82 All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine wit- nesses, and to file briefs. Based upon the entire record, the briefs submitted on behalf of the General Counsel and of Respondent-Employer, and upon my observation of the de- meanor of the witnesses, I make the following: I FINDINGS OF FACT A. Jurisdiction United States Lines, Inc., herein called Respondent, is a Delaware corporation and has been engaged in business as a container steamship operator with a facility in Long Beach, California. In the normal course and conduct of these opera- tions, Respondent annually derives gross revenue in excess of $50,000 from the transportation of freight in interstate or foreign commerce. Therefore, I find that Respondent is, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. B. The Labor Organization Involved General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. C. Issues 1. Whether Respondent, through Carl Northrope,3 vi- 2 The ballots that were challenged were those of Linda Garcia, Joanne Martin, and Donald P. Grot, and the basis of the challenges to their eligibil- ity was that they were supervisors within the meaning of Sec. 2(11) of the Act. After Grot had been interrogated regarding his supervisory authority, the parties stipulated that he had been a supervisor within the meaning of Sec. 2(11) of the Act. Accordingly, the challenge to his ballot is sustained and it will not be counted, with the result that, under the revised tally of ballots, 10 ballots had been cast for Petitioner, 12 ballots had been cast against Petitioner, and the 2 remaining challenged ballots are not sufficient in number to affect the results of the election. The parties agreed, therefore, that there was no need to pursue the matter of the challenged ballots further It should, however, be noted that for purposes of the unfair labor practices and objections portions of these matters, it was stipulated that, at all times relevant herein, Linda Garcia had not been a supervisor within the meaning of Sec. 2(11) of the Act. 3 In the complaint and notice of hearing, this man's name was spelled "Northrope," but in Employer's answer to complaint it was pointed out Continued 217 NLRB No. 27 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD olated Section 8(a)(1) of the Act by engaging in the following acts and conduct: (a) On or about March 11 and 18, soliciting grievances from employees in order to encourage them to forego their - support of the Union? (b) On or about March 18 and 19, promising benefits to employees in order to encourage them to forego their support of the Union? (c) On or about March 19 and 21, threatening employees with loss of benefits in order to encourage them to forego their support of the Union? (d) On or about March 19, placing employees in the posi- tion of having to declare their union preference? (e) On or about March 19, making statements to employees to discourage them from participating in a NLRB election? (f) On or about' March 19, soliciting and utilizing em- ployees to influence other employees against the Union? (g) On or about March 19 and 20, soliciting employees to interrogate their fellow employees concerning their union activities, membership, and sympathies? 2. Whether Respondent, through James Ardron, violated Section 8(a)(1) of the Act by threatening employees with loss of benefits in order to encourage them to forego their support of the Union? 3. Whether Respondent, through Vijay Vakil, violated Sec- tion 8(a)(1) of the Act by engaging in the following acts and conduct: (a) In or about March, threatening employees with loss of benefits in order to encourage them to forego their support of the Union? (b) In or about August, threatening, employees with loss of benefits in order to encourage them to forego their support of the Union? (c) In or about August, threatening employees with closure of the plant if they selected the Union as their collective- bargaining representative? (d) On or about September 4, inducing employees not to honor subpenas for and interrogating employees concerning their testimony before the National Labor Relations Board? D. Events of Issue Respondent has been engaged in business as a container steamship carrier with tricontinental service between Europe and the continental United States, Hawaii, Guam, Hong Kong, and the Far East. It maintains a corporate office in New York City and has offices throughout the world, includ- ing in Savannah, Georgia, and in Oakland and Long Beach, California. Respondent's Long Beach facility consists of a main office building and, approximately 100 yards away and across the street, a terminal building. Located in the main office build- ing are the private offices of various managerial officials and, in a pool area where the desks are situated fairly close together, employees who work in the documentation, ac- counting, and sales' department. Prior to November 1973, specifically that the correct spelling was "Northrup." However, no motion to correct the spelling of his name was made at the hearing and while in his brief counsel for the General Counsel adopted the spelling as set forth in the answer, in its brief Respondent has adopted the spelling as set forth in the complaint I shall use the latter spelling. Gene Kleindinst had been freight manager of Respondent's Long Beach office, but in that month was transferred to -the Savannah facility and his position at Long Beach was left unfilled until March. On February 21, the Union's representation petition in Case 21-RC-13610 was filed and on March 8, following a strike by the employees whom the Union sought to represent, the parties executed a Stipulation for Certification Upon Con- sent Election agreeing to an election on March 21 among the employees in a unit of. all office employees employed by the Employer at its facility located at 980 Windham Avenue, Long Beach, California, Berth 230, Pier G; excluding all other employees, salesmen, professional employees, guards and supervisors as defined in the Act. Following execution of the Stipulation for Certification Upon Consent Election, Respondent furnished a list of voters pursuant to Excelsior Underwear, Inc., 156 NLRB 1236 (1966), and N.L.R.B. v. Wyman-Gordon Company, 394 U.S. 759 (1969). Employee Michael Sullivan testified that when he was shown the list by the Union he noticed that it contained the names of certain individuals whom be believed to be supervisors. Thus, on the following day, approximately 2 weeks before the election, he went to the office of Port Manager James Ardron,° who Sullivan testified had an open-door policy, to inquire concerning the matter. On direct examination, Sullivan testified that following their discussion of the subject which had led him to Ardron's office, the two of them began to discuss the benefits provided by Respondent and, Sullivan testified, that if the employees selected the Union as their bargaining representative, they would no longer have these same benefits, although careful examina- tion of the transcript discloses that he did not attribute this statement to Ardron. Sullivan concluded his testimony on direct examination by stating that Ardron had said that all present employee-benefits and privileges would be "tossed out onto a table" and each would be bargained for with the result that they could go higher or lower or stay where they were. On cross-examination, Sullivan testified that his discussion with Ardron of employee benefits arose when they had begun to discuss the pros and cons of a union shop versus a nonun- ion shop and that Ardron then brought up the benefits that the employees enjoyed, explaining the present benefits which Sullivan enjoyed and stating that those benefits would be subject to collective bargaining since they were wages, hours, and conditions of employment. Sullivan acknowledged at this point that Ardron had not stated that the benefits could go up or down or stay the same, but that he (Sullivan) had assumed that when there was bargaining for any particular item that it could go either way. Ardron's testimony corre- sponded essentially with that of Sullivan on cross- examination-that he (Ardron) had reviewed the pres- ent benefits and had said that those benefits would be sub- jects for bargaining in the event that the Union won the election. Prior to March, the documentation manager at the Long Beach facility had been Jerry Tarpin, an individual who did not enjoy a great deal of affection of the employees whom he supervised at that facility. In early March, Tarpin was trans- 4 An admitted supervisor and agent of Respondent UNITED STATES LINES, INC. 119 ferred to the Savannah facility at Kleindinst's request and at the direction of Respondent's New York City headquarters. The freight manager of Respondent's Oakland facility, Carl Northrope,5 was assigned by West Coast Vice President Carey to take Tarpin's place at Long Beach and on March 6, Northrope journeyed to Long Beach where, on the following morning, he was introduced to some staff members by Tar- pin, who then left later in the morning for Savannah. Northrope spent the remainder of the day at the terminal building and on Friday, March 8, engaged in discussions with sales personnel, Ardron, and whoever else was available. He then returned to the San Francisco Bay Area for the weekend. On Monday morning, March 11, Inbound Documentation Clerk Burley McElwain met Northrope at Los Angeles Inter- national Airport and drove him to Long Beach facility, a ride which took them approximately 1 hour. McElwain testified that during this trip, Northrope inquired about the dissatis- factions among the employees-why they were frustrated and what the problems had been that had given rise to those frustrations-and what the employees expected the Union to do to help them. McElwain testified that he told Northrope that the frustrations were caused basically by Respondent's lack of concern for the fact that there was no flexibility within the office insofar as transfers were concerned with the result that many people felt neglected financially. Northrope re- plied, according to McElwain, that this had been the situation at Respondent's Oakland facility prior to his arrival at that location and that he had instituted a training program which had enabled employees to move from one department to another, being trained by other employees during such times, and that he was thereby able to get raises for various em- ployees. Northrope denied asking McElwain about the "problems" of the employees during the ride from the airport, although he testified that, in addition to asking McElwain about his duties, he also asked McElwain about his problems, his "opinions of the office in general," his opinion of how things were being run, and for his suggestions. Northrope further denied that the words "Union" or "Teamsters" were used during this conversation. McElwain freely acknowledged that there was no mention of the word "Union" in his pretrial affidavit furnished in April, but testified that when he re- viewed this affidavit in September for the hearing he realized that this had been omitted and further testified that he made specific notes of matters which he remembered but which had not been included in the affidavit. Northrope testified that during the week of March 11, he held meetings or conferences or discussions with every em- ployee at the Long Beach facility with the object of ascertain- ing their functions and how they were handling their jobs. From these meetings , conferences, and discussions, he testi- fied, he learned that the employees lacked experience or guid- ance and that the majority of the employees were dissatisfied working at the jobs to which they had been assigned. General Counsel presented two'witnesses who testified to such meet- ings with Northrope during the week of March 11. Freight Cashier Donna Lynn Poffenroth testified that she had sought a transfer to the inbound documentation depart- 5 The parties stipulated that all times relevant herein, Northrope was a supervisor within the meaning of Sec . 2(11) of the Act. ment in January and that during the week of March 11, when she was called into Northrope's office, he asked her if she was happy with her job and she replied that she liked her job but that there were some problems. Poffenroth testified that Northrope then asked how she liked inbound freight to which she responded that she had-tried to get into that department previously but had been turned down because, she had been told, Respondent did not want to transfer anybody that would necessitate a readjustment of their pay. According to Poffenroth, Northrope then said "Papa Northrope will take care of that" and when she then inquired if there was a chance of obtaining a transfer, Northrope replied "Yes." Although he denied that he had used the phrase "Papa Northrope" and testified that as this had been his first week at the Long Beach facility he was in no position to transfer anybody, Northrope admitted that he had a conversation with Poffenroth on Mon- day or Tuesday of the week of March 11 during which she and he had discussed her desire to be transferred to the inbound freight section and he did not deny that he had assured her that there would be a chance for her to receive the transfer. The second employee who testified to being in a meeting with Northrope during the week of March 11 was Richard Hernandez, outbound documentation, clerk for the Far East and Guam. Hernandez testified that when he was called to Northrope's office, the latter inquired regarding how he was doing in his job and then initiated a discussion of a training program, saying that he had instituted a training program in Oakland with the result that employees had obtained the opportunity to learn various jobs which enabled them to move from desk to desk and to receive raises because they learned more. Northrope, according to Hernandez, pointed out that he had never been turned down when he requested a raise for an employee and stated that he would like to institute the same program in Long Beach . Then, Hernandez testified, Northrope invited Hernandez to check with Oak- land personnel to prove that they had liked his training pro- gram and Hernandez stated that he had heard many empty promises from Respondent and inquired regarding whether Northrope had authority from New York and from Carey and Ardron to institute such a program. According to Her- nandez, Northrope said that Hernandez did not have to worry on this account, saying "I have the authority; I have the power. I was sent down here to do a job and I am going to do it, and if they don't let me 'do it I will get back on that plane and go back to Oakland." Then, Hernandez testified, Northrope cautioned that if the Union prevailed in the elec- tion he could not institute the training program, but that if Respondent won the election then he would begin that pro- gram on the Monday following the election. Northrope testified that he had spoken on many occasions with Hernandez during the week of March I1 but that such discussions had mainly involved Hernandez' job and the rea- sons for the high number of correction vouchers and freight brokerage invoices that were outstanding. Northrope did ad- mit, however, that he and Hernandez had discussed the sub- ject of training to afford the employees the proper experience in different jobs, but he asserted that it had been Hernandez who had initiated the discussion of the subject. Apparently during the week of March 11, and alleged con- versation took place between Finance Manager Vijay 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vakil6 and credit and collection clerk Beverly Wilson and accounts payable clerk Barbara Mayrand.' On direct exami- nation, Wilson testified that while the two women were in Vakil's office, the latter said that if Respondent went union then , all union employees would be precluded from promo- tions to management -positions and that Respondent would seek outside personnel to fill vacancies in such positions with the result that the two women would remain clerks for the rest of their lives. Wilson concluded her direct examination with the statement that this was "all I can honestly say that was said that I remember." On cross-examination, however, she acknowledged that she and Mayrand had been discussing the Union in Vakil's office, in Vakil's presence, and that they had asked Vakil what he thought because they were mixed up as to how they should vote in the upcoming election. She further admitted, when confronted with her pretrial affidavit by Respondent's counsel, that Vakil had said that unions were not bad and then she volunteered the following : "In fact, one reason I didn't put it in my statement-I have got my reasons I didn't but thinking about it later he did tell us, you know, that unions had good points but he didn't feel that U.S. Lines was the type of company that needed a union . He didn't really down unions, but he did state he didn't feel our com- pany needed one." She further admitted that when she and Mayrand had asked Vakd how he thought they should vote in the representation election that Vakil had replied that he couldn't tell them what they could do but that he thought that unions had their good points, although Respondent was young and had young people which led him to feel that this particular company did not need a union . She then reiterated her previous testimony that Vakil, who later testified that he did not recall, any, such conversation with Wilson and May- rand, had said that if the employees chose representation they would never be promoted to managerial positions and that the two women would remain clerks. During the week of the March 21 election , Northrope had several conversations regarding the training program and transfers. Thus, Poffenroth testified that on March 18, Northrope summoned her to his office and said that she could "book it for the inbound job" and that she would take over on the following ,Monday. When Poffenroth suggested that her current job be assigned to Ruby Klansboro, Northrope, according to Poffenroth, directed her to commence training Klansboro who would then be the next freight cashier. Northrope testified that Poffenroth would have had to be trained both in her current position and in the inbound job before any such transfer could be considered, but he also testified only that he did not recall having a conversation with Poffenroth on March 18 and he admitted that the phase "book it" was an expression used by him. On this same day, McElwain and Inbound Documentation Supervisor Linda Garcia testified that they were summoned to Northrope's office. Garcia testified that Northrope asked her about the other employees ' problems or dissatisfactions and that she responded that they were dissatisfied with the 6 The parties stipulated that Vakil was a supervisor at all times material herein. 7 General Counsel represented that attempts had been made to contact Mayrand, both during the investigation of this case and during pretrial preparation, but that these attempts did not meet with success . Of interest in this regard in the testimony of Martinez , set forth infra. wages that they had been receiving and that they were dissat- isfied with their inability to be considered qualified for other positions which became vacant . Northrope, Garcia testified, said that this would no longer happen at Long Beach and then discussed a training program which he had instituted in Oakland to train everyone to be able to handle each others' desks so that if one person were promoted, then another person was trained for the job which had been vacated, add- ing that he had gotten one employee a $1,000 raise and another employee close to $1,500 due to that training pro- gram. Garcia then testified that she asked if Northrope felt that he would be able to obtain the cooperation of the other managers, as well as of the New York City headquarters, in light of the fact that different officials had' previously pro- mised many things, all of which had been vetoed in New York. According to Garcia, Northrope responded that he had the 100-percent backing of Assistant Vice President Keely and would telephone him in New York to verify this assertion. By and large, McElwain corroborated Garcia's version of the statements made during the March 18 meeting, testifying that Northrope had inquired of Garcia as to the frustrations and problems of the employees, that Garcia complained re- garding her failure to obtain promotions and about her finan- cial situation, that Northrope discussed the training program that he had instituted in Oakland and hoped to institute in Long Beach so that the employees could obtain raises and promotions, that Garcia questioned his authority to under- take such a program, and that Northrope indicated that the New York City headquarters was 100 percent behind him. At no place during his direct examination did McElwain assert that Northrope had referred to the Union during this conver- sation. Yet, on cross-examination, Respondent asked if it were not true that he (McElwain) had stated in direct exami- nation that Northrope had discussed the Union during the March 18 conversation and McElwain responded affirma- tively, adding that Northrope tended to feel that his authority to give the raises and to institute his training program would in the end be more beneficial than an overall union situation. As had been the case with respect to his testimony concerning the March 11 conversation with Northrope, McElwain agreed with Respondent's counsel that there was no mention of the Union in his pretrial affidavit's recitation of the March 18 meeting. Furthermore , Garcia testified specifically that the Union was not raised by Northrope during their discus- sion of March 18. Consequently, there is a discrepancy in McElwain's testimony. But the simple fact is that Northrope by and large corroborated Garcia and McElwain with regard to the other matters covered during the meeting. Thus Northrope admitted that he had discussed the business and operations of the office with these two employees , had asked them if they had any suggestions or ideas on how the work load could be eased or improved, had suggested institution of a training program to upgrade the knowledge and documen- tation for everyone, had discussed the extent of his authority to train people in other jobs, and had spoken with them about checking with New York, although he asserted that he had told them that the reason that he would contact New York was to see if Cary had Keely's backing. Accordingly, without regard to the issue of whether or not the Union was discussed on March 18 when Northrope met UNITED STATES LINES, INC. 121 with Garcia and McElwain, Northrope essentially corrobo- rates the two employees' testimonies concerning the other matters raised and discussed at that time. Moreover, on cross- examination, the Northrope continued to testify in a manner consistent with the-testimonies of the General Counsel's wit- nesses until it apparently became obvious to him what was happening at which point he made a not wholly successful effort to extricate himself. Thus, on cross-examination, he initially admitted that he had discussed the training program with everyone, that he had referred to Oakland with respect to his accomplishments, that he had mentioned the training of employees in Oakland that had enabled them to transfer into other jobs with the ability to handle them, that normal transfers in Oakland had been accompanied by wage in- creases, and that he had initiated a discussion of what had taken place in Oakland. But as counsel for the General Coun- sel pressed forward, Northrope suddenly reversed his field and denied that he had told the employees that he would like to institute the same training program that he had instituted in Oakland and that people could be trained for better posi- tions and would get wage increases. Then he denied that he had told the employees what had taken place in Oakland, notwithstanding his prior testimony, asserting, "I told them I had gone on my record of what was happening in Oakland, and if they wanted to verify it, they could contact Oakland office ...." However, he immediately then stated: ".. . that the training program was successful in training the peo- ple to do the job properly and insured that there were people transferred into other position," thereby returning, in effect, to his initial admission. (Emphasis supplied.) He then retreated to avoiding the General Counsel's question, "You never told them that you wanted to institute that program in Long Beach?" by responding "I [had] seen a desire to institute a training program in Long Beach." This is probably an appro- priate place to point out that Northrope also testified that other than starting Hernandez working with another em- ployee, Respondent, at the time of this hearing, had only "spent a little bit more time on training the people to do the jobs that they were in at the present time." There is, so far as this record discloses, no program, formal or informal, for training employees to perform other jobs. Northrop did not deny Garcia's and McElwain's testimo- nies that on the following day, March 19, he again summoned them to his office and, following a discussion of the problems and the training program, said that he definitely had Keely's backing to do what he had promised. That evening, Respond- ent hosted a cocktail party for the employees. The party commenced at approximately 4 p.m. and ended between 10 and 11 p.m. Respondent provided free snacks and alcoholic beverages and apparently the employees availed themselves of these refreshments for at the end of the evening Ardron took 15 of them to the Copper' Penny for coffee because he did not want them driving in their condition. Of significance for the instant case are two discussions which occurred dur- ing the course of that party-one which Northrope had with McElwain and Garcia and the other between Poffenroth and Northrope. The conversation between Northrope and Garcia and McElwain took place at some point between 7:30 and 9:30 p.m. in the room which Northrope had rented during the initial phase of his assignment to the Long Beach facility. Garcia testified that Northrope again reviewed his program, asking if McElwain and Garcia were still going to back him, and that she mentioned again the fact that in the past the employees had been let down by Respondent on quite a few occasions. Northrope, Garcia testified, replied that he would follow through on his promises and assured her that he did have the backing of the people in New York, after which he asked the two employees to speak with their colleagues on the following day and explain his program to them, again appeal- ing to them to have faith in him. McElwain testified that during this conversation they discussed the problems of the office and Northrope's ideas to improve the situation, and that Northrope appealed to them to have faith in his-ability to carry out the training program, obtain raises for -em- ployees, and effect departmental transfers. According to McElwain, the discussion turned to the representation elec- tion scheduled for Thursday and Northrope stated that if a majority of the employees voted to postpone the election for 6 months then the Union would probably acquiesce in a postponement and the employees would have an opportunity to determine if Northrope would live up to his promises. The discussion ended, McElwain testified, with him and Garcia promising to meet with the employees on the following day to ascertain their desires regarding postponement of the elec- tion. Garcia did not mention the question of holding an em- ployee meeting to ascertain if they felt that the election should be postponed when she testified concerning the meeting with Northrope at the cocktail party. However, two independent matters tend to corroborate McElwain's testimony that the subject was first raised during the cocktail party. The first was Northrope's own testimony in which he stated that Garcia and McElwain had broached the matter of postponing the representation election by saying that they could stop the whole thing, that they intended to have faith in Northrope and hoped that he would not let them down as they had previously put faith in two other officials of Respondent who had let them down, and that if the discussion went any fur- ther, they would deny making these "statements. Northrope denied that he suggested or instructed McElwain and Garcia to talk to the employees and convey to them that he was a man of his word who harbored goodwill toward them, denied that he suggested or instructed them to take a poll, and denied that he suggested or instructed them to ascertain the em- ployees' sentiments. However, other than his assertions that Garcia and McElwain, said that they could stop the whole thing, that they intended to have faith in him, and that if Northrope repeated their remarks they would deny having made them, Northrope testified that he had no recollection of anything else that was discussed during that meeting. Yet, he estimated the meeting to have lasted 45 minutes to an hour. The second factor demonstrating the accuracy of McEI- wain's testimony regarding the discussion of an employee election during the meeting in Northrope's room was an event that took place at approximately 9:30 that evening. Poffenroth testified that Northrope called her aside and told her that there was not going to be an election and that there would be a meeting during the following morning to discuss it. Poffenroth also testified that at the time she was wearing one of the Union's buttons and that Northrope asked her 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what it was and when she replied that it was a Teamsters button, he asked her to take it off. Northrope denied advising Poffenroth that the election would not be held as scheduled and that there would be a meeting the following morning. He testified that a number of those in attendance at the party were wearing union buttons and that when he observed Cary wearing one, he then asked some of the employees if he could have their buttons so that he too could wear one. He was unable to recall if Poffenroth had been one of the employees whose button he requested, but testified that if he did instruct Poffenroth to remove her button it would only have been to permit him to wear it. However, while it is clear that a num- ber of employees were wearing the Union's button, Cary was not called to corroborate Northrope's assertion that he had been wearing a union button and no other witness cor- roborated Northrope in this regard. Similarly, Respondent produced no employees to corroborate Northrope's tes- timony concerning his assertedly jocular requests to wear a union button. Instead, Respondent attempted to impugn Pof- fenroth's capacity to appreciate what had transpired on that evening. In this regard, it is clear that when the party drew to a close, Poffenroth telephoned her husband at approxi- mately 10:30 p.m., telling him that she couldn't drive because she was not sober and then she requested that Vakil drive her home. Vakil, the only witness produced by Respondent to testify about Poffenroth's condition, initially characterized her as "drunk," but then quickly corrected this description and characterized her as "not sober." On the following morning, March 20, Garcia and McEl- wain went to Northrop's office. McElwain testified that the purpose of this meeting was to ascertain when Northrope felt it would be best for Garcia and McElwain to meet with the employees and that Northrope suggested that it be done at the 10:15 a.m. coffeebreak. Garcia testified that it was during this meeting that Northrope requested her and McElwain to meet with the employees and discuss postponing the election to afford Northrope an opportunity to effect the promised corrections in working conditions. Garcia testified that when she told Northrope that she did not know if the election could be posponed, he suggested that she contact the Board's Re- gional Office and that when she did so, she was told that the election could be postponed only if the Union withdrew its petition. When she reported this to Northrope, she testified that he asked McElwain and her to nonetheless talk to the employees and explain what he wanted to do. Northrope, however, testified that the two employees simply came to his office that morning and announced that they intended to hold a meeting of the employees for an informal vote, at which point he advised Ardron of what they had said and was told by Ardron that the employees could not hold a meeting but could do whatever they wanted during their coffeebreak or lunch hour. At some stage prior to the employee meeting this was made clear, for Garcia and McElwain initially had told the employees that there would be a meeting and subse- quently the employees were told that it could not be called a meeting officially and that it had to be termed a coffeebreak. Without regard to the nomenclature, it is clear that during the coffeebreak session Garcia told the employees what Northrope had said, particularly with regard to the institu- tion of a training program, and expressed her trust in Northrope, appealing to the employees to afford him 6 months to demonstrate that he was a man of his word. The employees voted by secret ballot on whether or not to post- pone the representation election, but apparently the ballots were never tabulated for they were put in a small cardboard box which was picked up by Northrope's secretary and there is no evidence concerning what thereafter happened to them. On the morning of the election, March 21, Poffenroth testified that she was called to the office where Nortlirope again told her that she could "book it" for the inbound job, adding that he could not institute his employee-training pro- gram or any other goals if the Union prevailed in the election. During this conversation, testified Poffenroth, Northrope stated that he had authority from the top to do anything he wanted to do at the port of Long Beach and that since Ardron would be transferred to Oakland within 2 months, he (Northrope) would become port manager. Northrope denied telling Poffenroth that he could not institute a training pro- gram because of the Union, but he did not deny making the statement that he could not institute the program or any other goals if the Union prevailed'in the election. He further testified that he could not recall telling Poffenroth that morn- ing that she could "book it" for the inbound freight job. The remaining allegations charging Respondent with un- fair labor practices involve events which transpired after the election and which, accordingly, are not asserted as a basis for setting aside the representation election in Case 21-RC-13610. These allegations concern conversations be- tween switchboard operator Lydia Martinez and Finance Manager Vakil, the first of which occurred either in late July or early August while Martinez was driving Vakil to Ana- heim to pick up his automobile. Martinez testified that Vakil asked her how she liked her job and how things were getting along, to which she responded that she was getting along fine' and that she enjoyed it except for the fact that there was so much hostility present. Vakil replied, according to Martinez, that the cause of the hostility was primarily the fact that people were unhappy and thought that they would be able to do better if the Union came in, but that if it did become the representative, Respondent would most likely close the plant or turn it over to an agent, as it had done elsewhere, since it would not be able to afford to pay union scales and would end up losing money. In fact, Martinez testified, Vaktl said that if the Union became the bargaining representative, most of the employees would not be qualified for their jobs because some type of college background would be required and better qualified people would be sought for the wages that had to be paid. Martinez further testified that Vakil had said that while unionihad some good points, such as dental and eye coverage, for the most part unionization of Respondent's employees would not be good, since they would never be able to advance and the Union would bring in its own people, adding that promotions would only be made by seniority, not by ability. Vakil acknowledged that Martinez had driven him 8 In fact, things were anything but "fine" with Martinez. Vakil had been her supervisor since she had first commenced working for Respondent on Arpil 29 and, she acknowledged that he had reprimanded her "just about every day for some reason or another," such as for being tardy in the morning and taking "in his opinion" extended breaks . He had docked her pay and in August the situation reached the point where Martinez submitted a letter of resignation, although she was ultimately dissuaded from actually resigning. UNITED STATES LINES, INC. to pick up his car in Anaheim and although he admitted that they discussed a number of matters, he denied having any discussion with her about closing Respondent's Long Beach facility. Martinez testified that this conversation made her so fear- ful that she thereafter attempted to persuade Beverly Wilson and Joanne Martin, as well as other unidentified employees, to stop their union activities because she feared that the Long Beach facility might in fact be closed. The second incident between Vakil and Martinez involved the subpena which Martinez had received for the hearing in the instant matter. She testified that either on September 8 or 9, which she identified as a Tuesday or a Wednesday, she had gone to Vakil's office to report that she would be absent because of the subpena. On direct examination, she testified that when she reported the matter, Vakil asked if she had made a statement or anything and she replied that she had not done so and that she wasn't really too sure about what was going to happen. Then, she testified, Vakil said that she didn't have to show up; that it was entirely up to her and there was nothing that anybody could do if she did not show up. When Martinez then asked Vakil if he would be at the hear- ing, he replied according to Martinez, that he would be at the hearing, and, in response to her further question, that Ardron would also be there and that she had better watch what she said because both Ardron and he would be there. On cross-examination, Martinez' story imploded consider- ably. Thus, she testified that she reported to Vakil that she had been subpenaed to go to court regarding Respondent and that there then transpired a discussion as to whether or not the subpena was for Respondent or for her job at Respondent, after which Vakil asked to see the subpena. Martinez testified that she told him that she didn't have it with her and was not exactly sure what it said, at which point Vakil told her to bring it in so he could see it and inquired, "Well, what did you do? Did you give a statement to anyone?" When she denied giving a statement, Vakil then asked, according to Martinez, if Beverly Wilson or anybody had tried to drag her down to the Union and she responded that they had not but that she had asked a few other people in the office if they had subpenas, specifically Barbara Mayrand9 and Joanne Mar- tin, and that they had said that they didn't know anything about it. The conversation culminated, testified Martinez, with Vakil stating that she didn't have to go to the hearing if she didn't want to go, that it was up to her and that nothing could be done to her if she didn't go, and with her promising to bring the subpena to him. Martinez then added a second conversation between Vakil and herself regarding the subpena which she testified took place on Thursday or Friday when she was summoned to Vakil's office where he asked her if she had brought the subpena. She testified that she told him that she could not find it and that he then asked if she knew what it said, at which point she told him that she has been in contact with persons from the Board and that they had instructed her not to talk about it. 9 As set forth in fn 7, counsel for the General Counsel represented that attempts had been made to contact Mayrand as early as during the investiga- tion, which presumably commenced in late March when the charge was filed, but that such attempts were unsuccessful 123 Vakil testified that during the first week of September, Martinez reported that she had received a piece of paper which appeared to be a subpena and that, after conferring with Ardron who expressed lack of knowledge as to why Martinez would receive a subpena, Vakil told Martinez that she would have to show it to him if she wanted him to explain to her what it meant. He denied specifically that Martinez had mentioned to him either the NLRB or the September 12 hearing date during this conversation. He further testified that later that same week he had asked her if she had brought the subpena to show him and that she then told him that she had not done so and had been instructed by Mr. Cole not to discuss the subpena in the office. Vakil testified that at that time he did not know the identity of Mr. Cole who is, of course, co-counsel for the General Counsel in this matter and there is no evidence rebutting this assertion. Moreover, Vakil denied advising Martinez at any time that she should not honor her subpena and further denied at any time advising her that it would be okay if she did not show up for the proceeding for which she had been subpenaed. He testified further that she never told him that she had to appear at a hearing on September 12 and stated that he did not know where she was going to be on the first day of the hearing until he saw her in the hearing room that morning. II ANALYSIS A. Whether Respondent, through Carl Northrope, Violated Section 8(a)(1) of the Act By Engaging in Various Acts and Conduct I credit Garcia, McElwain, Hernandez, and Poffenroth with respect to their testimonies concerning what they were told by Northrope. These four individuals impressed me as humble and sincere persons who displayed no rancor toward Respondent and who made an honest effort to testify accu- rately concerning the events which they had observed and the conversations in which they had participated. They were not perfectly accurate, but then no human being ever is 100 per- cent perfect. Thus, while McElwain did omit from his pretrial affidavit the mention of the word "Union" when recounting his March 11 conversation with Northrope, I credit his tes- timony that to prepare for testifying in this matter, he re- viewed his affidavit and made special note of omissions such as this one so that his testimony would be complete. Simi- larly, while Garcia omitted any mention of Northrope's ap- peal to McElwain and her to conduct an election among the employees during the course of their meeting in Northrope's room, I feel that she attempted to testify as completely as she could and, in any event, her testimony overall 'discloses clearly that the coffeebreak session was conducted at Northrope's behest. It is true, as Respondent points out in its brief, that Hernandez made at least one comment to Northrope displaying cynicism on the basis of Respondent's past performance, but this hardly leads to the conclusion that he would tailor his testimony adversely toward Respondent. I was, in fact, highly impressed by his demeanor. Finally, while Poffenroth may have consumed alcoholic' beverages at the cocktail party, it was not established that she was drunk, i.e., overcome to the point of losing control of her faculties. Indeed, while Vakil initially asserted that she was drunk, he 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediately corrected himself and said "not sober." The fact that she had the presence of mind to telephone her husband to report that she did not believe, that she should drive strongly indicates that she had not lost control of her faculties and was cognizant of events, was able to perceive what was taking place, and was able to formulate sound judgments-in short, she was perfectly capable of under- standing and remembering what had been said to her. In contrast to these four individuals, I was not impressed by Northrope's demeanor and my review of his testimony only strengthens my conviction that he should not be cred- ited. While I do not believe, as the General Counsel argues, that the evidence supports a finding that Northrop was as- signed as Tarpin's replacement to conduct an antiunion cam- paign, I do believe that he took it upon himself to do so from the moment that he set foot in McElwain's automobile at the airport. Thus, he interrogated employees in an effort to ascer- tain the source of their dissatisfaction; held out the prospect of instituting an informal training program which would lead to transfers, promotions, and concomitant wage increase; promised to transfer Poffenroth to a job which she had desired for at least 2 months; warned the employees that the institution of changes would be endangered , if not completely scuttled, by selection of the Union as their bargaining repre- sentative; prevailed upon McElwain and Garcia to take up his cause with the employees; and attempted to bring about the postponement of the representation election on the basis of his promises. Clearly such conduct is a classic example of interference with the rights of employees under the National Labor Relations Act. This is not a situation, as Respondent argues, where new management attempts to correct past inefficient and unpro- ductive practices. See Lorraine Urbauer d/b/a Kimmel's Shop Rite, 213 NLRB 440 (1974), for, as is best illustrated by his conversation with Poffenroth on the morning of the elec- tion, Northrope presented his programs as alternatives to representation by the Union. That his training program, the primary matter proposed to the employees, was in fact not business oriented is demonstrated by Northrope 's own admis- sion that it was all but nonexistent even by the time of the hearing-6 months after he had promised its immediate insti- tution. Nor would it be a defense, as Respondent further argues, if the employees had initiated these conversations with Northrope. Erie Strayer Company, 213, NLRB 344 (1974). To the contrary, it is quite clear that it was Northrope who initiated the entire matter of instituting changes to cor- rect employee dissatisfaction. It can hardly be persuasively maintained that employees who had previously been let down after promises had been made to them by Respondent's offi- cials would suddenly decide to support a superior who had newly appeared on the scene, about whom they knew noth- ing, and who had not promised them anything. Neither Garcia nor McElwain impressed me as being that naive. Therefore, I find that as alleged in the complaint and notice of hearing, Respondent did violate Section 8(a)(1) by Northrope's conduct in soliciting grievances from McElwain, Poffenroth, and Hernandez on or about March 11, and from Garcia on March 18; by promising to transfer Poffenroth to a job which she had desired and by promising Garcia and McElwain that employees would be given the opportunity to receive training for other positions in which they would re- ceive higher wages on March 18; by renewing these promises go -Garcia and McElwain on the morning of March 19 and at the cocktail party that evening, when he said that he had the backing of Respondent's New York City headquarters after having again discussed the employees' problems and his training program; by threatening that he could not institute the training program or any other changes if the Union were selected as the bargaining representative during his conversa- tion with Hernandez during the week of March 11 and with Poffenroth on the morning of the election, March 21; by placing Poffenroth in the position of having to declare her union preference when he requested that she remove her Union's button and thereby, inferentially, threatening her with loss of her promised transfer if she did not do so at the cocktail party on March 19; and by appealing- to McElwain and Garcia to give his program a chance by attempting to persuade the other employees to seek a postponement of the representation election on the evening of March 19 and on the morning of March 20, thereby attempting to discourage em- ployees from participating in the scheduled representation election, soliciting and utilizing McElwain and Garcia to influence other employees to cease supporting the Union, and soliciting McElwain and Garcia , to interrogate other em- ployees concerning their union sympathies through the mechanism of an election to postpone the representation elec- tion. I further find that this conduct, as contended by the Peti- tioner in its objections, is destructive of the laboratory condi- tions required for conducting representation elections and that, accordingly, this conduct warrants setting aside the representation election conducted on March 21. B. Whether Respondent, through James Ardron, Violated Section 8(a)(1) of the Act by Threatening Employees with Loss of Benefits in Order To Encourage Them To Forgo their Support of the Union At the conclusion of the General Counsel's case, Respond- ent made a motion that this allegation of the complaint be dismissed and I reserved ruling. While the only witness to testify in support of this allegation, Michael Sullivan, did testify on direct examination that if the employees selected the Union as their representative they would no longer enjoy the benefits which Sullivan testified that the two men had been discussing. Careful examination of his testimony dis- closes that he did not really attribute this comment to Ar- dron. Moreover, on cross-examination, Sullivan admitted that he had attributed to Ardron on direct examination one statement which in fact Ardron had not made and which had merely been an assumption on Sullivan's part. Furthermore, when Respondent's counsel took him through the entire con- versation, step by step, Sullivan omitted any mention of a threatened loss of benefits should the Union prevail in the election. Accordingly, I do not believe that Sullivan's tes- timony establishes that Ardron said that employee benefits would be lost if the Union won the election and, as there is no evidence of any other unlawful statement in their conver- sation, I shall grant Respondent's motion and recommend that this allegation of the complaint be dismissed. - UNITED STATES LINES, INC. C. Whether Respondent, through V#ay Vakil, Violated Section 8(a)(1) of the Act By Engaging in Various Acts and Conduct Two witnesses testified to allegedly unlawful statements by Valcnl. I simply do not credit either one of them. Beverly Wilson admitted that she had withheld parts of her alleged conversation with Vakil from her pretrial affidavit for reasons which she asserted were her own and, similarly, she omitted from her direct examination statements by Vakil which were not inimical to Respondent's position, thereby attempting to cast Vakil in as adverse a light as possible. While testifying, she displayed distaste for Vakil, a supervisor who appears to be quite unpopular among those whom he supervises. In these circumstances, I do not credit her assertions concerning what she was told by Vakil. Martinez was almost openly hostile toward Vakil, appar- ently because of his need to discipline her for her tardiness and excessively long breaks. She admitted that she had spoken with Wilson regarding the union situation at the Long Beach facility and, as found above, Wilson admittedly con- cealed evidence during the Board's investigation. Further- more, in her haste to create a convincing story, Martinez utilized cross-examination in an effort to embellish her tes- timony on direct examination and in the process related how, during the period immediately preceding the hearing, she had spoken to an individual whom the General Counsel had been unable to contact since the investigation of this matter com- menced in March. Consequently, I feel that her testimony was motivated by a desire to punish Vakil, because he had disciplined her for her inadequate job performance. Therefore, I do not credit either of these individuals and, in accordance with Respondent's motion to dismiss allega- tions concerning Vakil made at the end of the General Coun- sel's case, shall recommend that the allegations of paragraph 8 of the complaint be dismissed. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the Respondent's operations described in section II, A, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States, and tend to lead, and have led, to labor disputes burdening and obstruction commerce and the free flow of commerce. IV THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative ac- tion set forth in section VI, below designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 125 3. By soliciting grievances from employees in order to en- courage them to forego their support of the Union, by promis- ing benefits to employees in order to encourage them to forego their support of the Union, by threatening employees with loss of benefits in order to encourage them to forego their support of the Union, by placing employees in the posi- tion of having to declare their union preference, by making statements to employees to discourage them from participat- ing in an NLRB election, by soliciting and utilizing em- ployees to influence other employees against the Union, and by soliciting employees to interrogate their fellow employees concerning their union activities, membership, and sympa- thies, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The objections filed by Petitioner are sustained only to the extent that they are the same as the unfair labor practices found in section VI, C, above, and, therefore, they warrant setting aside the election in Case 21-RC-13610. 6. Respondent did not violate the Act through any conduct of James Ardron and Vijay Vakil and the objections filed by Petitioner in Case 21-RC-13610 are overruled only to the extent that they are the same as the unfair labor practices attributed to Ardron and Vakil. Upon the foregoing findings of the fact, and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER") Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting grievances from employees in order to en- courage them to forego their support of the Union, promising benefits to employees in order to encourage them to forego their support of the Union, threatening employees with loss of benefits in order to encourage them to forego their support of the Union, placing employees in the position of having to declare their union preference, attempting to discourage em- ployees from participating in National Labor Relations Board representation elections, soliciting and utilizing em- ployees to influence other employees against the Union, and soliciting employees to interrogate their fellow employees concerning their union activities, membership, and sympa- thies. (b) In any manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary io effectuate the purposes of the Act: (a) Post at its Long Beach, California, facility, copies of the attached notice marked "Appendix."" Copies of said no- 10 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. 1 t In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order Continued 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tice, on forms provided b}'the Regional Directorfor Region 21, after being duly signed by Respondent 's authorized repre- sentative, shall beposted by Respondent immediately upon receipt thereof, and-be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reason- able 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 21, in writing, within 20 days from the date of this Order , what steps Re- spondent -has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. IT IS FURTHER ORDERED that the election held on March 21, 1974, among Respondent's office employees be set aside, and that Case 21-RC-13610 be severed and remanded to the Regional Director for Region 21 for the purpose of conduct- ing a new election at such time as he deems that circum- stances permit the free choice of a bargaining representative. 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 hereby notify you that: The National Labor Relations Act, as amended , gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection - To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective-bargaining -agreement which imposes a lawful requirement that employees become -union members. In recognition of these rights, we hereby notify our em- ployees that: WE WILL NOT solicit grievances from you in order to encourage you to forego your support for General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Americam or any other labor organization. WE WILL NOT promise you benefits in order to discour- age you from supporting the above-named labor organi- zation or any other labor organization. WE WILL NOT threaten you with loss of benefits in or- der to discourage you from supporting the above-named labor organization or any other labor organization. WE WILL NOT place you in the position of having to declare your union preferences. WE WILL NOT attempt to discourage, you from par- ticipating in representation elections conducted by the National Labor Relations Board. WE WILL NOT solicit and utilize you to influence other employees against the above-named labor organization or any other labor organization. WE WILL NOT Solicit you to interrogate your fellow employees concerning their union activities, member- ship, and sympathies. WE WILL NOT in any manner interfere with any of your rights under the National Labor Relations Act set forth above. UNITED STATES LINES,- INC