Best Products Co., Inc.

BEST PRODUCTS CO., INC. 95 Best Products Co., Inc. and United Food and Com- DECISION AND REPORT ON POST- mercial Workers Union, Local No. 197, affili- ELECTION OBJECTIONS ated with United Food and Commercial Work- ers International Union, AFL-CIO. Cases 32- STATEMENT OF THE CASE CA-2910 and 32-RC-1104 RICHARD J. BOYCE, Administrative Law Judge: This consolidated matter was heard before me in Stockton, California, on January 29, 1981. DECISION, ORDER, AND DIRECTION The charge in Case 32-CA-2910 was filed on July 28, OF SECOND ELECTION 1980, by United Food and Commercial Workers Union, Local No. 197, affiliated with United Food and Commer- BY MEMBERS FANNING, JENKINS, AND cial Workers International Union, AFL-CIO (herein the ZIMMERMAN Union). The complaint which issued on September 12 was amended during the hearing and alleges that Best On May 15, 1981, Administrative Law Judge Products Co., Inc. (herein Respondent), committed cer- Richard J. Boyce issued the attached Decision in tain violations of Section 8(a)(1) of the National Labor this proceeding. Thereafter, Respondent filed ex- Relations Act, as amended. ceptions and a supporting brief. An election in Case 32-RC-1104 was held on Septem- Pursuant to the provisions of Section 3(b) of the ber 11, 1980, among the full-time and regular part-time National Labor Relations Act, as amended, the Na- employees in Respondent's Stockton store. It derived from a petition filed by the Union on June 30, 1980, and tional Labor Relations Board has delegated its au- a Stipulation for Certification Upon Consent Election ap- thority in this proceeding to a three-member panel, proved on July 22. The initial tally was 32 for and 33 The Board has considered the record and the at- against representation, with 2 challenged ballots. tached Decision in light of the exceptions and brief The Union filed objections to conduct allegedly affect- and has decided to affirm the rulings, findings,' and ing the outcome of the election on September 16. On conclusions of the Administrative Law Judge and October 29, the Regional Director issued his Report and to adopt his recommended Order. Recommendations on Challenged Ballots and Objections recommending that one of the challenged ballots be ORDER opened and counted and concluding that the status of the other challenged voter and the objections issues could Pursuant to Section 10(c) of the National Labor best be resolved after a hearing. Relations Act, as amended, the National Labor Re-r a heang. On November 19, the Board issued its Order adopting lations Board adopts as its Order the recommended the Regional Director's recommendation and conclu- Order of the Administrative Law Judge and sions. The one challenged ballot, accordingly, was hereby orders that the Respondent, Best Products opened and counted on December 12, resulting in a re- Co., Inc., Stockton, California, its officers, agents, vised tally of 32 for and 34 against representation, with I successors, and assigns, shall take the action set challenged ballot-that of Virginia Klopstock, Respond- forth in the said recommended Order. ent's sales training coordinator. IT IS FURTHER ORDERED that the election con- By order dated January 6, 1981, the Regional Director ducted herein on September 11, 1980, in Case 32- consolidated the objections and complaint matters herein RC-1 104 be, and it hereby is, set aside, and that for hearing and decision, stating that it would "not be said case be, and it hereby is, remanded to the Re- necessary to litigate" Klopstock's eligibility, her ballot gional Director for Region 32 for the purpose of no longer being determinative. conducting a new election at such time as he I. JURISDICTION deems appropriate. [Direction of Second Election and Excelsior foot- Respondent is a Virginia corporation engaged in the operation of a chain of discount department stores, in- note omitted from publication.] cluding one in Stockton. The Stockton store realizes annual gross revenues in excess of $500,000, and annually Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to takes delivery from outside the State of California of overrule an administrative law judge's resolutions with respect to credi- goods valued in excess of $50,000. bility unless the clear preponderance of all of the relevant evidence con- Respondent is an employer engaged in and affecting vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enrd. 188 F.2d 362 (3d Cir. 1951). We have commerce within Section 2(2), (6), and (7) of the Act. carefully examined the record and find no basis for reversing his findings. Although the Administrative Law Judge relied, in part, on Essex Inter- 11. LABOR ORGANIZATION national. Inc., 211 NLRB 749 (1974), which has since been overruled by T.R.W. Bearings Division, a Division of T.R. W.. Inc., 257 NLRB No. 47 The Union is a labor organization within Section 2(5) (1981), in finding that Respondent violated Sec. 8(aXI) of the Act by pro- of the Act. hibiting employees from gathering outside the store on their own time. it is clear that Respondent violated the Act under either standard. 259 NLRB No. 16 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111. THE ALLEGED UNFAIR LABOR PRACTICES ployees "to go on strike," and they would have no choice but to comply. Meanor added: A. David Meanor You have to go on strike, and while they're on 1. Allegations strike, the Company will not close. They will rehire The complaint alleges that David Meanor, the man- people to fill your position, send you a letter telling ager of the housewares department and an admitted su- you that your position's been filled and that they do pervisor, violated Section 8(a)(1) on or about July 16, not have to hire you back. 1980, by threatening an employee with the loss of her position and with the loss of various benefits, including Klopstock asked, "Well, then, what's the point of all seniority rights and privileges, should the Union be this?" Meanor remarked, "Yeah, what's the point?" To voted in; and by telling the employee that Respondent Klopstock's asking how he knew these things, Meanor would not sign a bargaining agreement, meaning that the said his brother had been in a union. Meanor concluded employees "would inevitably have to go on strike," if the exchange by telling Klopstock "just to keep it be- the Union were voted in. tween us." Meanor's version. Meanor, although conceding that he 2. Evidence did not remember "this particular conversation ... really well," testified at length about it. While professing between Meanor and Virginia Klopstock.' concern that Klopstock looked "upset or tense," Meanor Klopstock's version. Klopstock testified that she was averred that the conversation was initiated by Klopstock walking through the housewares department when saying that she had "some things to talk about" and Meanor, noting her unsmiling countenance, asked what asking if he "would talk with her." He assented, after was wrong. She denied that anything was wrong, but which, in the tag room, she raised the recent discharge Meanor persisted, asking, "Is it the union thing?" Klop- of three employees. She voiced concern that manage- stock conceded that she was troubled by the union situa- ment could "arbitrarily" discharge people, opining that tion. Meanor suggested that they "go upstairs and talk union representation would give greater job security. about it." Klopstock assented, and they went upstairs to Meanor responded that a union would not have made uthw"upstairs "any difference whatsoever" in the cases she had cited. In the tag room. , Meanr asked if Klopstock had "any Klopstock then remarked that she did not understand In the tag room, Meanor asked if Klopstock had "any "the union situation," that she felt she was being judged questions." She replied, "You tell me why shouldn't I "the union situation," that she felt she was being judged want the Union." Meanor answered that, "personally," a union person unfairly," and that she was "being he did not think the Union would benefit the employees picked on" as a result. Meanor assured her that she was as much as they thought it would, elaborating that there not being picked on, and invited her to "come talk to" would be "a lot of hidden things" that the employees him whenever she had "any problems." probably did not know about. He particularized that, Meanor described "the negotiation process," explain- while they might get a pay raise, they would lose bene- ing that, once the Union "was voted in . . . everything fits elsewhere "to make up for it"; that they would "lose from that point was negotiable, that benefits could be all [their] seniority" and would "start from scratch" as changed"; that, "depending on the contract, [you] could concerns seniority; that, "if you want a day off ... you get more, [you] could get less." The main point I was won't be able to get it off if the schedule is already trying to get across to her." Meanor testified, [was] that posted," whereas, "the way it is now . . . [you] just go nothing was definite." Asked by Respondent's counsel if up to your manager and ask him and they can arrange it he said in this context that the employees "would start with no problem"; and that they would not "be able to from scratch on all their benefits," Meanor implied that sit here and talk like this anymore, because there's a he did, answering, "And they have." He denied saying, third party that you'll have to go through, and that'll be however, that any negotiated raise might be at the ex- the union representative." pense of other benefits. Klopstock asked how all this would happen. Meanor After describing the bargaining process, Meanor as- said that it would be "step by step"; that winning the serted that, regardless, he did not "see how the Compa- election "doesn't guarantee you anything." He continued ny could pay or do more for the Stockton employees that, if Respondent should "say no" to the Union's bar- . . , without doing it for the entire Company." "Fair- gaining demands, the Union then would "order" the em- ness," he went on, was "what it was all about . . . and that wouldn't happen if we paid the Stockton employees 'Respondent challenged Klopstock's ballot on the ground that, as sales more than Sacramento." training coordinator, she is a confidential employee. Respondent's counsel Meanor denied speculating whether Respondent would stated on the present record, when Respondent rested, that "we have agree to the Union's demands-"I had no way of know- never abandoned our position that Mrs. Klopstock is a confidential em- in ployee." As earlier noted, that issue has been excluded from those to be litigated herein in the context of the representation case. Nor need it be to go on strike" should agreement not be forthcoming. resolved in the context of Respondent's alleged unfair labor practices. He admittedly told Klopstock, though, that "if for some Assuming without deciding that Klopstock is a confidential employee, reason" there were not an agreement, "that's when you she nevertheless is entitled to the protections of the Act under prevailing hear of strikes," and that the Union would do "whatever Board law. Intermountain Rural Electric Association, 253 NLRB 1133 (1981), and cases cited. Respondent expressly disavowed any contention they had to if it came to an impasse." He continued that that Klopstock is a statutory supervisor. in the event of a strike Respondent would have "the BEST PRODUCTS CO., INC. 97 right to . . . hire replacements," and that those striking B. Terry Sauer (1) "could be permanently replaced." Meanor denied speaking of the "hidden problems" that 1. Allegation go with union representation, only to concede that he The complaint alleges that Terry Sauer, a manager told Klopstock of his own "not very good" experiences trainee in the toy department,' violated Section 8(a)(1) with a union. He noted, in this regard, that it was "very on about July 18, 1980, by prohibiting employees from easy" to arrange a day off as things were, but that with a union in the picture "you worked the schedule." He times and in nonwork areas, to discourage their support added that with a union management and the employees of the Union. would not be able to discuss things "like we [are] doing now." 2. Evidence 3. Conclusions Kevin Sullivan, a sales counselor in the housewares department, testified that he and two coworkers, Gary To the substantial degree that their stories diverge, Klopstock is credited. Her recital was richly detailed, in- Petitt and Don Winget, had gathered outside the toy de- ternally consistent, and altogether believable. Meanor, partment exit after work on July 18, "trying to decide apart from admitting that he did not recall the exchange what [they] were going to do" with their evening. This "really well," betrayed a discrediting penchant to be eva- was their usual after-work practice. A sidewalk about 10 sive and unresponsive. feet wide led from the exit, and they were seated on a Meanor, by juxtaposing the ideas that there would be planter along the edge of the walk. Sullivan continued a strike if Respondent said "no" to the Union's demands; that, after they had been there "about 15 minutes," Sauer that considerations of "fairness" made it impossible for came out and announced that he would "have to break him to "see how the Company could pay or do more for [them] up," explaining: "I'm sorry, but I was told that the Stockton employees . . . without doing it for the entire Company"; that, should there be a strike, the strik- ' The parties are in disagreement over Sauer's status. The General ers' positions would be filled and Respondent would not Counsel contends that Sauer was a supervisor; or, even if not, an agent of "have to hire [them] back"; and, in summary, that there Respondent. Respondent argues that he was neither. The ranking person was no "point" to it all, that a strike would be likely if in each of the store's departments is a departmental manager. Beneath the manager in some departments are an assistant manager, who is conceded- not inevitable were the Union voted in, that those strik- ly a supervisor, and a manager trainee. The toy department, at most if ing would lose their jobs, and that the organizational un- not all relevant times, did not have an assistant manager, meaning that it dertaking in general was a futility. It is concluded that wae run by the manager-a Mrs. Allen-and by Sauer, as manager Meanor, by so doing, violated Section 8(a)(1). 2 trainee. The department had about seven employees beneath those two. Meanor,-~~ by so doing, ~~The store is open from 10 a.m. to 9 p.m. weekdays, from 10 a.m. to 6 It also is concluded that Meanor violated Section p.m. on Saturdays, and from noon to 5 p.m. on Sundays. Allen and Sauer 8(aXl) by saying that, among the "hidden things" about alternated weekends running the toy department; and worked separate representation, the employees would "start from scratch" but overlapping shifts during the week, one opening the department in the morning and staying into the afternoon, the other reporting in the as concerns seniority, work schedules would be rigidly afternoon and closing the department at night. In Allen's absence, which binding, and the employees no longer would be able to also included a week or more when her daughter was ill, Sauer was in talk directly with management. The evil of these remarks command of the department, accountable only to Michael Ebbensteiner. is their implication that unionization alone would have the overall showroom manager, whom Sauer labeled as his "boss." the stated effects. 3 Aside from the regularly recurring instances in which Sauer was the ranking person present in the department, it is uncontroverted that he at- It is concluded, finally, that Meanor's comment was tended weekly meetings of assistant managers and manager trainees (the not unlawful that the employees would lose benefits else- managers attended weekly meetings at other times so that the depart- where "to make up for" any wage increases that repre- ments would never be without leadership); shared an office with Allen; did not punch a timeclock, unlike the general run of employees; author- sentation might bring. Meanor plainly was referring to ized the acceptance of customer checks and employee use of the depart- the workings of the bargaining process, and, as the ments' telephone; had the authority to give warnings, to permit employ- Board has stated: ees to report late or leave early, and to grant days off; prepared depart- ment work schedules; assigned employees from task to task; sometimes An employer is free to indicate to his employees evaluated job performance; participated with Allen in the interview of prospective employees; and made notations on timecards. enabling pay- what the possible result of bargaining may be, and ment for extra hours. to call their attention to the possibility or even Virginia Klopstock, one of whose duties is to teach new hires "how probability that certain existing benefits may be they are to respond to their managers," testified that Sauer in addition had authority to request that employees work extra hours and overtime; traded away for others.' and Gary Petitt, a toy department employee, testified that Sauer in fact made such requests of him "on different occasions." Sauer's denial that Richard Tischer, Martin Boder and Donald Connelly. Sr., a limited he had such authority was unconvincing. As is elsewhere noted, he was partnership d/b/a Devon Gables Nursing Home; Richard Tischer. Martin not an impressive witness. Bader and Donald Connelly, Sr., a limited partnership d/b/a Devon Gables Finally, Klopstock credibly testified that she instructed the new hires Lodge d Apartments, 237 NLRB 775, 776 (1978); Four Winds Industries, whom she trained, that managers, assistant managers, and manager train- Inc., 211 NLRB 542 (1974); Tommy's Spanish Foods. Inc., 187 NLRB 235 ees were all managers in their departments, all to be accorded the "same (1970). respect." ' N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969); Sport- It is concluded from this aggregate of circumstances that Sauer indeed spal. Inc., 214 NLRB 917 (1974); Stumpf Motor Company. Inc., 208 was a supervisor and agent, and that his conduct therefore is binding on NLRB 431 (1974). Respondent. Osco Drug, Inc., a wholly owned subsidiary of Jewel Food 'Stumpf Motor Company. supra, 208 NLRB 432. Companies. Inc., 237 NLRB 231, 233-234 (1978). 98 BEST PRODUCTS CO., INC. any more than three employees in any one place at a Sullivan replied that he not only was "in favor of it" but time were to be considered a conspiracy." was "working on the campaign." With that, Sullivan went on, he and his companions Menius then showed Sullivan a list of those in the de- "just laughed a little bit, got up, and left." He testified partment, with an "X" or "O" designation behind each that they continued this practice to gather at the same of about 14 names. After explaining that the designations place after work, hearing nothing further from Sauer. signified who was prounion and who was procompany, Petitt, a sales counselor in the toy department, cor- and that the list was being prepared for John Case, re- roborated Sullivan in all significant respects. Sauer gional personnel manager, and Michael Ebbensteiner, denied ever speaking to employees in this manner outside showroom manager. Menius asked Sullivan if the desig- the building. offering that he once "had to ask" Sullivan, nations were accurate. He demurred that he preferred who was soliciting for the Union in the store while off not to answer. duty, "to let the employees that were on duty do their At this point, according to Sullivan, he told Menius work, and ... to talk to them during their breaks or off- that "there was the possibility" that he would file an duty hours." Sauer denied ever using the word "conspir- unfair labor practice charge against her for instituting a acy"-"I wouldn't use the word 'conspiracy." conversation with him about the Union. She said that she had done "nothing illegal," then stated: 3. Conclusions If the Union was voted in and it came to negotia- Sullivan and Petitt are credited, as against Sauer's tions . . . the Company would stalemate such nego- denial, that this incident occurred and was as they re- ti . called. Both were persuasively cogent and forthright in tiatons and force the employees out on strike their presentations; whereas, Sauer not only was unre- Menius added that the strikers "would then be replaced"; sponsive and evasive on frequent occasion but uncon- and that Respondent, because of its wealth, "could out- vincing in overall demeanor. last [the employees] on any strike." Given the surrounding context of a union campaign Sullivan countered that Respondent "could not force and the assorted other unfair labor practices found us legally out on strike"-rather, that that would be the herein, it is concluded that Sauer's dispersal of the three employees' "own personal choice"; and related his un- employees on the stated ground that they were "consid- derstanding of the distinction between economic and ered a conspiracy" was meant to interfere with and re- unfair labor practice strikers as concerns susceptibility to strain them in their exercise of organizational rights, vio- permanent replacement. lating Section 8(a)(1). It is further concluded that, re- Menius also said, per Sullivan, that Respondent would gardless of motive, Sauer's prohibition against the em- try to schedule as many as possible of the procompany ployees' gathering outside the store on their own time, employees to work the day of the election, leaving off there being no showing of a valid business justification, was in the nature of an unlawfully broad ban on solicita- Menius version. Menius testified that she and Sullivan Menius' version. Menius testified that she and Sullivan ti~on'. 6"just sort of drifted into the talk about the Union," and C. Annette Menius that she said: i. Allegations [I]f it got to the negotiation table, there could be possibility, I guess, that if the Company and the The complaint alleges that Annette Menius, the assist- labor union could not come to an agreement on var- ant manager of the housewares department and an ad- ious terms or what-not, they-it would be kind of mitted supervisor, violated Section 8(a)(l) on or about like a dead-end thing and there could be the possi- July 24, 1980, by interrogating an employee concerning bility of a strike. his union sentiments, by imparting to the employee "the impression that Respondent had engaged in surveillance Menius testified elsewhere that Sullivan "raised the sub- of' some of the employees' union activities, and by tell- ject" of a possible strike, remarking that any strike ing the employee that Respondent "would force a 'stale- "would have to be voted on by the employees"; and, at mate' in bargaining with the Union and that employees another point, that she could not "really say for sure" would inevitably have to go on strike." whether he or she first broached the subject. In any case, according to Menius, Sullivan exclaimed, 2. Evidence after she had expressed herself as above set forth, that These allegations concern a conversation on or about she had "committed a ULP," whereupon he departed July 24 between Menius and Kevin Sullivan, previously and the exchange ended. identified as a sales counselor in the housewares depart- Menius denied asking Sullivan about his union senti- ment. ments, explaining that his feelings were apparent from Sullivan's version. Sullivan testified that after he and the prounion T-shirt he was wearing; or that she said Menius had finished discussing another matter, Menius anything about rigging work schedules on election day; asked, "What do you think about the union campaign?" or that she mentioned Respondent's having the economic resources to withstand any strike. 'Cf. K. W. Norris Printing Co., 232 NLRB 985 (1977); Essex Internation- Menius denied, finally, that she showed Sullivan a list al, Inc., 211 NLRB 749 (1974). of employees' names on which their union sympathies BEST PRODUCTS CO., INC. 99 were denoted. On examination by counsel for the Gener- Sauer about the Union, "starting around July." Avila re- al Counsel, however, she grudgingly admitted that Case lated that in one such conversation, at the customer serv- and Ebbensteiner had directed the several department ice desk on July 25, Sauer asked if she wanted to go into managers to "figure out who might be for the Union, the office with him and talk about the Union. To her and who might be against it"; that she had kept a list in- negative answer, Sauer reportedly said that he was sup- dicating whom she thought was of which persuasion; posed to talk to all the employees and get their opinion and that she went over the information on that list with of the Union. Meanor, who was her immediate superior, and with Case Avila responded, so she said, that Sauer already knew and Ebbensteiner. her opinion, prompting Sauer to state that he was not going to use "the propaganda" he had been told to use. 3. Conclusions Avila persisted that she did not "want to discuss it," and To the considerable extent that their versions conflict, Sauer allegedly said: "Let me say just one more thing. Sullivan is credited. His demeanor and the substance of . . [I]f you do not vote, it'll be a vote for the Union." his testimony suggested both competence and conscien- Sauer, while not addressing these particular pieces of tiousness under oath, whereas Menius was often evasive testimony, denied generally that he ever questioned and generally unconvincing. anyone about the Union-"No, sir, we were instructed It is concluded that Menius interrogated Sullivan in not to." violation of Section 8(a)(1) by inquiring of his thoughts 3 Conclusions "about the union campaign" and by asking him if the designations on her list were accurate;? that she imparted Petitt and Avila are credited that Sauer made the re- the impression of surveillance, further violating Section marks attributed to him. Sauer, as previously mentioned, 8(a)(1), by showing and explaining the list to him; 8 and was unconvincing both in testimonial content and demea- that she committed yet another violation of that section nor. Petitt and Avila, in contrast, came across as sincere by remarking that Respondent "would stalemate" bar- and capable witnesses. gaining, thereby forcing a strike and causing the strikers It is concluded that Sauer violated Section 8(a)(1) by to be replaced, which conveyed the notion that represen- asking Petitt how the Union "was going," why it "came tation would be both pointless and destructive of job se- in," and if it "was dying down.'° It also is concluded curity.9 that Sauer in effect interrogated Avila about her union sympathies by the combination of his asking her if she D. Terry Sauer (2) wished to talk to him about the Union and telling her that he was supposed to obtain the employees' "opinion 1. Allegation of the Union"; and that he thereby further violated Sec- The complaint alleges that Sauer, previously identified tion 8(a)(1). as a manager trainee in the toy department, violated Sec- tion 8(a)(1) on July 25, August 2, and two other dates in E. Terry Sauer (3) July or August 1980 by interrogating employees con- The complaint alleges that Sauer violated Section cerning their and their coworkers' union sentiments. 8(a)(1) on about August 2, 1980, by threatening an em- ployee "with the inevitability of a strike and loss of em- ployment" should the Union be voted in. Gary Petitt, previously identified as a sales counselor in the toy department, testified of "a couple of" conver- 2. Evidence sations with Sauer concerning the Union. The first, took Kevin Sullivan, previously identified as a sales coun- place in the department manager's office towards the end selor in the housewares department, testified that on of July. In it, Sauer asked Pettit how the Union "was August 2 while on vacation he went to the store to see going"; Pettit replied that it was "still going strong;" and when Gary Petitt would be getting off. Sullivan was Sauer then asked Petitt's opinion on why the Union wearing a prounion T-shirt. According to Sullivan, Sauer "came in." came up to him and remarked, "Don't you like working The second conversation, as recalled by Petitt, oc- for the Company?" Sullivan assertedly replied that he curred in the same office around the "beginning of did, whereupon Sauer stated that. "if the Union was August." Petitt testified that Sauer, remarking that he voted in," Respondent "would force" the employees had not heard too much about it of late, asked if the "out on strike" and they "wouldn't be coming back." Union was dying down. Petitt assertedly answered that Sauer further stated, as Sullivan recalled, that he the cause had lost a number of people, but that its propo- would "really miss" working with him and his cowork- nents were trying to get them back. ers, because they were a "great group"; and that "even if Mary Avila, also a sales counselor in the toy depart- the Union lost the election" the employees "could still ment, testified that she had "several" conversations with possibly lose" their jobs, for Respondent "would not for- give and forget." E.g.. PPG Industries, Inc., Lexington Plants Fiber Glass Division, 251 Petitt was present during this exchange, according to NLRB 146 (1980); Didde-Glaser, Inc.. 233 NLRB 765 (1977). B Tipton Electric Company, and Professional Furniture Company, 242 Sullivan. Petitt corroborated Sullivan in this regard, and NLRB 202 (1979). ' See fn. 2, supra. '° See fn. 7, supra. 100 BEST PRODUCTS CO., INC. with respect to the salient substantive features of Sulli- Case, the regional personnel manager, about the "prob- van's recital. lems with the door"; and that, while Case said he would Sauer denied participation in any incident of this char- "check on it," nothing changed. acter-"No, sir, we were instructed not to mention any- Gary Petitt corroborated Klopstock that the door thing of that nature." "generally" stayed open before the campaign; and that, though it was frequently closed by the employees during the campaign, "it would always get opened again." For reasons earlier stated, Sullivan and Petitt are cred- Petitt, however, could not identify those opening it- ited that Sauer bespoke himself as they described. It is "I've never seen anybody come out and open it. concluded that Sauer, by indicating that a strike neces- Neither Ebbensteiner nor Davis testified. sarily would follow from Respondent's bargaining pos- ture, with attendant job loss to the strikers, conveyed the 3. Conclusions idea that representation would be at once a futility and a peril; and that he consequently violated Section 8(a)(l)." It is inferable from the recitals just set forth, particu- larly Klopstock's, and absent testimony to the contrary, F. Michael Ebbensteiner that Ebbensteiner was behind the recurrent opening of the door. And, while it might be speculated that his pur- 1. Allegation pose was to ensure that the room's intended use not be The complaint alleges that Ebbensteiner, previously subverted by a certain employee faction, neither he nor identified as the showroom manager, an admitted super- anyone else offered testimony giving substance to such visor, violated Section 8(a)(l) on and after June 24, 1980, speculation. by engaging in surveillance of the employees' union ac- The further inference necessarily follows that Ebben- tivities. steiner's purpose was to eavesdrop, and to impart the im- pression that he was eavesdropping, on the employees' discussions of the Union. It is concluded, therefore, that The Stockton store has a single small lunchroom. It Ebbensteiner violated Section 8(a)(l). has food and drink vending machines, a refrigerator, a microwave oven, a few tables and chairs, a stereophonic CONCLUSIONS OF LAW radio, and sometimes a television set; and is for the use As previously concluded, Respondent violated Section of both management and rank-and-file personnel. Some make purchases there and leave; others spend their (a)( ) by: breaks and/or lunch periods there. The weight of evi- I. Imparting to its employees the impression that dence indicates that it receives considerably more use should the Union be voted in a strike was likely if not from rank-and-file personnel than from management. inevitable; that those striking would lose their jobs; and Ebbensteiner's office is down the hall from the lunch- that the organizational undertaking in general was a futil- room. Virginia Klopstock testified that, when the lunch- ity. room door is open, lunchroom conversations can be 2. Stating or implying to an employee that unioniza- clearly heard in Ebbensteiner's office. tion would result in the employees' "starting from Before the union campaign the lunchroom door was scratch" as concerns seniority, in work schedules becom- propped open most, if not all, of the time. With the cam- ing rigidly binding, and in the employees' no longer paign's onset, employees gathering in the lunchroom rou- being able to talk directly with management. tinely closed the door so that their discussions of issues 3. Forbidding three employees from gathering outside relating to the campaign would not carry outside. Just as the store on their own time, thereby issuing what routinely, the door would be reopened from the outside. amounted to an overly broad no-solicitation rule. Klopstock, who had a desk a few feet from the door, tes- tified that the door was closed and opened in this 4. Interrogating employees about their opinions con- tified that the door was closed and opened in this cerning the Union, and about their and their coworkers' manner "sometimes 10 times a day"; that it "got to be a game"; and that those recurrently opening the door were union sympathies. Ebbensteiner and his secretary, Joyce Davis. 5. Imparting to its employees the impression that their Klopstock further testified that she once told Ebben- union activities were under surveillance, and in fact en- steiner that the employees were "upset about" the con- gaging in surveillance of such activities. tinued reopening of the door, and that he responded that he liked the door open "to hear the music." Before the THE OJECTIONS campaign, according to Klopstock, Ebbensteiner some- The several instances of misconduct above found oc- times turned off the radio in the lunchroom, presumably curred during the "critical period" after the June 30, because it disturbed him. 1980, filing of the election petition. It is concluded that Kevin Sullivan testified that when Joyce Davis once this misconduct is sufficient to overturn the election. opened the door during the campaign she commented that she had been told that the door "must remain open." Sullivan also testified that he once complained to John " See fn. 2, supra. BEST PRODUCTS CO., INC. 101 ORDER' 2 (e) Imparting to employees the impression that their union activities are under surveillance, and in fact engag- The Respondent, Best Products Co., Inc., Stockton, ing in surveillance of such activities. California, its officers, agents, successors, and assigns, (f) In any like or related manner interfering with, re- shall: straining, or coercing employees in their exercise of 1. Cease and desist from: rights under the Act. (a) Imparting to its employees the impression that, 2. Take this affirmative action: should the Union be voted in, a strike is likely if not in- (a) Post at its store in Stockton, California, copies of evitable; that those striking will lose their jobs; and that the notice which is attached and marked "Appendix."' 3 the organizational undertaking in general is a futility. Copies of the notice, on forms provided by the Regional (b) Stating or implying to its employees that unioniza- Director for Region 32, after being duly signed by Re- tion will result in their "starting from scratch" as con- spondent, shall be posted by Respondent immediately cerns seniority, in their work schedules becoming rigidly upon receipt thereof, and be maintained for 60 consecu- binding, and in their no longer being able to talk directly tive days thereafter, in conspicuous places, including all with management. places where notices to employees customarily are (c) Forbidding employees from gathering outside the posted. Reasonable steps shall be taken by Respondent to stor ,on their own time, thereby i.an overly broad .insure that the notices are not altered, defaced, or cov- store on their own time, thereby issuing an overly broa d no-~storeicitatssuingrule.ered by any other material. (b) Notify the Regional Director for Region 32, in (d) Interrogating employees about their opinions con- writing, within 20 days from the date of this Order, what cerning the Union, and about their and their coworkers' steps Respondent has taken to comply herewith. union sympathies. IT IS FURTHER RECOMMENDED that the election of September 16, 1980, be set aside and a new election di- " All outstanding motions inconsistent with this recommended Order rected. hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations '' In the event that this Order is enforced by a Judgment of a United Board, the findings, conclusions, and recommended Order herein shall, as States Court of Appeals, the words in the notice reading "Posted by provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Order of the National Labor Relations Board" shall read "Posted Pursu- Board and become its findings, conclusions, and Order, and all objections ant to a Judgment of the United States Court of Appeals Enforcing an thereto shall be deemed waived for all purposes. Order of the National Labor Relations Board."