Danzansky-Goldberg Memorial Chapels, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Danzansky-Goldberg Memorial Chapels, Inc. and Drivers, Chauffeurs & Helpers Local Union 639, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Danzansky-Goldberg Memorial Chapels, Inc. and Jeffrey Walter Jenkins, Petitioner and Drivers, Chauffeurs, and Helpers Local Union 639, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 5-CA-11956, 5- CA-11971, 5-CA-12943, 5-CA-13052, and 5- RD-681 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On February 11, 1982, Administrative Law Judge Stephen J. Gross issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent filed an answering brief, cross-ex- ceptions, and a brief in support thereof. 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, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 'In absence of exceptions thereto, we adopt, pro forma, the Adminis- trative Law Judge's dismissal of the complaint's allegation that the Re- spondent violated Sec. 8(a)(l) by expressing anger because an employee informed her union and the Board about certain statements made by the Respondent. The Respondenit and the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products, Inc., 91 NL.RB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings 2 The Administrative Law Judge stated that employee Robert Ontko worked 40 hours a week at a local hospital in addition to his job with the Respondent. The record, however, indicates only that Ontko worked a minimum of 16 hours a week at the hospital. We find the error to be non- prejudicial as the record supports the Administrative Law Judge's finding that Ontko's job at the hospital adversely affected his performance at the Respondent. Further, the Administrative Law Judge, in finding Respondent Man- ager Tickner's remark that employee Burchell had "stabbed him in the back" by voting for the Unionl to be unlawful, erroneously stated that the remark was made to employee Ontko, whereas the record indicates that it was made to Burchell. a In light of the Respondent's unopposed motion to partially vacate the Decision of the Administrative Law Judge and to revoke the Union's certification based on the Union's letter of June 22, 1982, which dis- claimed any interest in representing the Respondent's employees, we shall 264 NLRB No. 112 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Danzansky-Goldberg Memorial Chapels, Inc., Rockville, Maryland, its officers, agents, succes- sors, and assigns, shall take the action set forth in the recommended Order. Substitute the following for the final two para- graphs of the Administrative Law Judge's Deci- sion: "IT IS FURTHER ORDERED that the petition in Case 5-RD-681 is dismissed. "IT IS FURTHER ORDERED that any petition filed by the Union within 6 months from this date will not be entertained unless good cause is shown to the contrary. Moreover, in the event the Union makes a claim for recognition upon the Respondent within 6 months from this date, a motion by the Petitioner in Case 5-RD-681 requesting reinstate- ment of said petition will be entertained." IT IS FURTHER ORDERED that the Union's Certifi- cation of Representative issued on August 7, 1978, in Case 5-RC-10505, is revoked. dismiss the proceeding in Case 5-RD-681 and shall revoke the Union's certification. DECISION 1. INTRODUCTION STEPHEN J. GROSS, Administrative Law Judge: Re- spondent Danzansky-Goldberg Memorial Chapels, Inc., is a Rockville, Maryland, funeral home. This is a consoli- dated proceeding involving (1) a series of charges filed against Respondent by Teamsters Local 639 (the Union) between February 22, 1980, and April 6, 1981; (2) two complaints dated September 29, 1980 (in Cases 5-CA- 11956, 5-CA-11971, and 5-CA-12443), and April 8, 1981 (Case 5-CA-13052); and (3) objections by the Union, dated July 23, 1980, to a decertification election held July 16, 1980 (Case 5-RD-681).' I heard the case in Washington, D.C., on July 13 through 17, July 20, and September 1 through 3, 1981. The General Counsel and Respondent have filed briefs. The case stands ready for decision. 1. RESPONDENT'S ELECTRONIC SURVEILLANCE OF ITS EMPLOYEES Herman Goldberg is Respondent's largest shareholder and its chief executive officer. Early in 1979 Goldberg i All parties agree that Respondent is an employer engaged in com- merce for purposes of Sec. 2(2) and (6) of the National Labor Relations Act (the Act) and that the Union is a labor organization within the mean- ing of Sec. 2(5) of the Act. 840 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC. secretly placed a microphone in a vent in the funeral home's employee lounge. Goldberg's admitted purpose was to get more information about telephone calls that he suspected some of Respondent's employees were making to their union hall. As it turned out, the micro- phone failed to work. The following two sections outline the facts regarding this attempted eavesdropping-first (in sec. A) as de- scribed by the General Counsel's witnesses and then (in sec. B) as related by witnesses called by Respondent. Section C discusses why I have concluded that Respond- ent's attempted eavesdropping violated the Act. A. The General Counsel Witnesses' Testimony About the "Bugging" Local 639 was certified as the bargaining representa- tive of Respondent's employees on August 7, 1978. But the Union and Respondent were unable to come to an agreement over the terms of a collective-bargaining agreement, and in November 1978 six of Respondent's employees went out on strike. Respondent continued to operate during the strike. Respondent and the Union en- tered into a collective-bargaining agreement in mid-Janu- ary 1979 and the strike ended. All striking employees re- turned to work. Respondent hired William Reyer while the strike was still in progress: and Reyer worked during the strike. Reyer never joined the Union. During the time period in question the employee lounge in the funeral home had only one heating/air-conditioning vent: in the ceiling near the center of the room. Reyer testified that while the strike against Respondent was still in progress he en- tered the employee lounge and found the funeral home's janitor, Henry Kosh, in the midst of working on the vent. The vent's cover was off, and there, dangling from the vent, was a microphone. Kosh, after telling Reyer not to say anything about the microphone, replaced the cover, and the incident ended. Reyer never saw the microphone again. But on at least one occasion, in late March 1979, Goldberg reacted in a way that convinced Reyer that Goldberg had used the microphone to eavesdrop on a conversation among em- ployees in the lounge. The incident involved Goldberg unexpectedly asking Reyer where he was going as Reyer was leaving the funeral home at the end of the day. On that day, and only that day, Reyer was en route to a secret meeting with Union Steward Gordon Martin that Reyer and Martin had set up in the course of a discus- sion in the lounge. On February 21, 1980 (about a year after his discovery of the microphone), Reyer visited Martin at his home. Two other prounion employees, Bobby Gene Fanning and Robert Ontko, were also there. Reyer took that oc- casion to talk about "the bug." Fanning immediately telephoned the union hall with the news. A day later Fanning undertook to determine whether the micro- phone was still in the vent. Waiting for a moment when he was alone in the lounge, Fanning hurriedly peered into the vent with the help of a flashlight. According to his testimony he saw a microphone suspended on a black cord above the vent cover. The microphone, Fanning said, was the thin, cone-shaped kind associated with home tape recorders. (Fanning's freehand sketch of what he said he saw is included in the record as Resp. Exh. 1.) Local 639 filed an unfair labor practice charge (in Case 5-CA-1 1971) against Respondent a few days later alleg- ing that "the employer planted an electronic listening device in the . . . vent of the employees lounge to spy on their union activities." Both Fanning and Ontko testified to events that, simi- lar to Reyer's encounter with Goldberg, seemed to them to be further proof of Goldberg's eavesdropping. In one, GColdberg met with the employees to advise them of the illegality of wildcat strikes soon after Fanning had pro- posed just such a strike to a small group of employees. In another, Goldberg strode into the employee lounge and verbally attacked Ontko for his criticism of Re- spondenl's employee health insurance coverage while Ontko was discussing the matter with a few other em- ployees. B. Respondent's Witnesses' Testimony About the Hidden Microphone Employee Jeffrey Jenkins is, and always has been, an- tiunion. There is no dispute that Jenkins frequently told Goldberg about his coworkers' actions or statements that he felt were adverse to the interests of the funeral home. According to Goldberg, soon after the end of the strike Jenkins told Goldberg that prounion employees were using the telephone in the employee lounge to call the union hall. Another nonunion employee, Earl Stitt, con- firmed Jenkins' account. The news upset Goldberg be- cause, he testified, in his view the collective-bargaining agreement that he and Local 639 had recently negotiated specifically prohibited employees from making such calls. (The agreement provides that employees may not transact "Union business on company time or on compa- ny premises."2) Goldberg testified that, in order to get the goods on the employees who were making such tele- phone calls, he decided to place a secret listening device in the lounge. Accordingly, said Goldberg, one evening in early March 1979 he took the cover off the vent in the em- ployee lounge, ran wires from a tape recorder in his office into the vent, connected the wires to a small, rec- tangular, general purpose microphone, and replaced the vent cover. As thus installed, the microphone rested on the vent cover. Goldberg was assisted in this effort by Patricia Gorman, a part-time receptionist at the funeral home and a family friend of the Goldbergs. Respondent called Gorman as a witness, and her testimony wholly supported Goldberg's. Both Gorman and Goldberg testified that they tested the system as soon as they completed its installation. And both testified that it failed to work. The microphone could not pick up conversation in the lounge. Respond- ent's manager, Howard Tickner, testified that sometime in March or April 1979 Goldberg referred to the micro- phone in the lounge and had Tickner listen to the sys- tem's output. Tickner said that he heard only static. 2 Art. 12 of the collective-bargaining agreement (GC. Exh. 2); see also art. 6 (limiting specified stewards' activities to "non-working hours"). 841 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goldberg and Gorman agreed that they left the micro- phone in place even though it did not work. But in mid- April 1979, Respondent's secretary/bookkeeper, Carol Dubin-who had known about the microphone-told Goldberg that it had been discovered by Kosh and Reyer. In addition, Goldberg knew that personnel from an air conditioner service company would soon be arriv- ing to work on, among other things, the vent in the em- ployee lounge. Goldberg accordingly removed the mi- crophone in late April 1979. A few days after that, the air conditioner service personnel did arrive. One of the servicemen, Nicholas Piantedosi, testified. He confirmed that he did work on the vent in the employee lounge, that he would have seen a microphone if one had been in the vent, and that he saw no microphone or anything like a microphone. C. Respondent's Secret Electronic Surveillance of the Employee Lounge-Conclusion Several points are in issue: When was the microphone installed and when was it removed: did it work; what did Goldberg hope to gain by installing it; was Gold- berg's action a violation of the Act, assuming a timely filing of an unfair labor practice charge; and, finally, was a timely charge filed. The discussion below will deal with these issues seriatim. When was the microphone installed; did it work; when was it removed. I credit Goldberg and Gorman that the microphone was installed in March 1979-not during the strike (January or before) as Reyer testified. Reyer agreed that he had trouble remembering dates. And Gorman and Goldberg were convincing on this point. The microphone did not work, in the sense that the system Goldberg and Gorman installed did not permit its users to overhear conversations in the employee lounge. There was nothing about the demeanor of Goldberg, Gorman, or Tickner when they testified on this point that suggested fabrication. And the actions by Goldberg that Fanning, Ontko, and Reyer thought indicated eaves- dropping did not result from electronically obtained in- formation. On the day of Reyer's planned meeting with Martin, Reyer forsook his usual end-of-the-day routine. Since Goldberg is the kind of manager who tends to be suspicious about any nonroutine employee behavior, he naturally asked Reyer about the change. As for Gold- berg's comments about wildcat strikes soon after the em- ployees had discussed one, Jenkins had overheard the conversation and had told Goldberg about it. Finally, Goldberg was in the lounge (for nonculpable reasons) during part of Ontko's complaining about Respondent's employee health insurance coverage. Goldberg frequent- ly lost his temper in his dealings with the home's em- ployees, and especially with Ontko. The minute or two of Ontko's complaining that Goldberg overheard was enough to infuriate him and to cause him to react sharp- ly. As for the microphone's removal, the record is conclu- sive that Goldberg did remove it in late April 1979, a month or so after he had installed it. The only question is whether Goldberg subsequently installed another (and different type of) microphone system. That is what must have happened if Fanning's testimony about seeing a mi- crophone in the vent in February 1980 is accurate. But Goldberg said that his removal of the microphone in April 1979 ended his eavesdropping efforts. And in order to believe Fanning's account, one would have to find that Goldberg chose to reinstall a microphone in the vent in the employee lounge after Reyer and Kosh had discovered a microphone in that same vent. While I think Fanning probably thought he saw a microphone in the vent (in February 1980), he was looking hurriedly into a dark vent with the expectation of finding a micro- phone. Under these circumstances anyone might see the microphone that one expected, and hoped, was there, whether or not it actually was. And throughout his testi- mony, Fanning showed himself to be especially suscepti- ble to confusing what he wished had happened with what in fact had happened. I accordingly find that a microphone was in place in the employee lounge only from late March through the end of April 1979. Respondent's motives in installing the microphone. If it would have been unlawful for Respondent to have in- stalled an effective eavesdropping system in the employ- ee lounge, the fact that the system happened not to work does not make Respondent's efforts less unlawful. See, e.g., Ronald L. Blanchard d/b/a Blanchard Construction Company, 234 NLRB 1035 (1978), enforcement denied 108 LRRM 2104 (9th Cir. 1980). But an employer's secret surveillance of its employees, electronic or other- wise, violates the Act only if the purpose of the surveil- lance is to gain information about, or otherwise to in- trude upon, the employees' protected activities: See Flite Chief Inc., et al., 220 NLRB 1112, 1118-19 (1975), enfd. 566 F.2d 1182 (9th Cir. 1977); hIeights Funeral Home, Inc., 159 NLRB 723 (1966), enfd. in part 385 F.2d 879 (5th Cir. 1967); International Irailer Co., 133 NLRB 1527 (1961), enfd. sub nom. N.L.R.B. v. Gibraltar Industries, Inc., 307 F.2d 428 (4th Cir. 1962). That puts into issue Respondent's motives for placing the microphone in the vent in the funeral home's employee lounge. As discussed earlier, Respondent's collective-bargain- ing agreement with the Union specified that employees were not to transact "Union business on company time or on company premises." Goldberg interpreted that as precluding employees from calling the Union from the funeral home. His only reason for installing the micro- phone, he said, was to get proof that some of Respond- ent's employees were making such calls. It may be assumed, for present purposes, that employ- ees may waive their right to make any telephone calls whatsoever from their employer's premises to their union hall.3 But waivers are to be carefully construed. And the only agreement here was that the employees were not to transact union business on Respondent's premises. That language no doubt prohibits some kinds of telephone calls to the union hall. Action by an employer to prevent that specific kind of call accordingly would not violate the Act. Cf. Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956). But there is no reason to assume that the par- ties to the agreement here at issue intended that the limi- :1 Rut sete NI..R.B. v. Magnavox Co of Tennes'ee, 415 U.S. 322 (1974). 842 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC. tation should include such calls to the union hall as em- ployees reporting suspected violations of the Act or re- questing information about their Section 7 rights. When Goldberg decided to place a secret microphone in the employee lounge, he did not distinguish between the kinds of calls to the union hall that were prohibited by the agreement and those that were not. For that reason alone, therefore, the installation of the eavesdrop- ping system violated the Act. Moreover I would have to conclude that the installa- tion of the microphone was unlawful even assuming that all calls to the union hall were prohibited by the collec- tive-bargaining agreement. An employer's electronic eavesdropping in an employee lounge is sufficiently in- imical to the maintenance of the employees' Section 7 rights that it ought to take more than a supervisor's after-the-fact statement to prove that the employer's mo- tives for the eavesdropping were wholly lawful. Yet the only evidence here that Goldberg's motives were as lim- ited as he claims is Goldberg's own testimony. Indeed the only other indications of the nature of Respondent's motives cut the other way. For one thing, the micro- phone was placed much closer to the locus of general employee discussion than it was to the telephone: It was placed directly over the sole table in the lounge but at least 15 feet (horizontal distance) from the telephone. For another, the record in this proceeding makes it clear that Goldberg was the kind of suspicious, inquisitive manager who would want to know as much as he could about all of the employees' activities and viewpoints. And lastly, Goldberg detested the presence of the Union at the funeral home. The timeliness of Local 639's charge. Section 10(b) of the Act provides that: ". . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board .... " No charge relating to the electronic eaves- dropping was filed until February 1080. That vwas 10 months after the microphone was removed from the vent. Looking no further than the face of the statute, therefore, Section 10(b) precludes any finding that Re- spondent violated the Act by its attempted eavesdrop- ping. But the very essence of eavesdropping is secrecy. Re- spondent installed the system covertly and then removed it covertly. The Charging Party, Local 639, thus had no way of knowing of the eavesdropping attempt until Feb- ruary 1980 (when Reyer told three prounion employees about it). In these circumstances the 6-month limitation period was not tolled until Local 639 acquired knowl- edge of Respondent's actions: NIL.R.B. v. Don Burgess Construction Corp., 596 F.2d 378 (9th Cir.), cert. denied 444 U.S. 940 (1979) ("limitation period begins to run when the claimant discovers, or in the exercise of reason- able diligence should have discovered, the alleged viola- tion"); N.L.R.B. v. Allied Products Corp.. Richard Broth- ers Division, 548 F.2d 644, 650 (6th Cir., 1977)("six month limitation period does not begin to run until the employ- er's unlawful activity . . . has become known to the Charging Party"); International Ladies' Garment Workers [McLoughlin Manufacturing Corporation] v. ANL.R.B., 463 F.2d 907, 922 (D.C. Cir. 1972); Pacific Intercom Co., 255 NLRB 184 (1981); cf. Local Lodge No. 1424, Internation- al Association of Machinists, AFL-CIO [Bryan Manufac- turing Co.] v N.L.R.B., 332 U.S. 411, fn. 19 (1960). Since Local 639 filed its unfair labor practice charge within a few days of learning of the microphone, Re- spondent's 10(b) defense fails. 4 Accordingly, for the rea- sons stated above Respondent violated the Act by plac- ing a microphone in the vent in the employee lounge in an attempt to eavesdrop on its employees' protected ac- tivities. 111. BOBBY (iENE FANNING'S JOB ASSIGNMENTS A. Background Bobby Fanning has been employed by Respondent since 1969 as a licensed funeral director-embalmer. (Re- spondent also employs apprentice funeral director-em- balmers. I will refer to both categories of employees as "funeral directors" except where the distinction between the two categories is relevant.) Fanning helped organize Respondent's employees in 1978 and, since that time, has been either steward or alternate steward. The General Counsel claims that "since on or about January 24, 1980 Respondent discriminatorily assigned . . . Bobby Fanning . . . to undesirable tasks such as parking lot detail, making shiva calls and cleaning of the chapels, all because of [his] assistance to and activities on behalf of the Union." ' This part of the Decision will dis- cuss the evidence relating to that allegation and why I have concluded that the allegation is not supported by the record. B. The Shift in Fanning' .Assignments lihe record includes statistics showing funeral director assignments in 1978 and in 1980 (but not in 1979).6 Fhose statistics show that there were two significant changes in Fanning's assignments. Comparing 1980 to 1978: Respondent assigned Fanning the lead car job much less frequently in 1980 than it had in 1978; 7 and it assigned him parking lot duty much more frequently.8 [hat amounts to a change in job assignments that was materially for the worse. I hree members of the bargaining unit learned of the attempted eavesdropping well within the 10(b) period: Gorman (who helped install the microphone), Kosh (who discovered it in April 1979). and Reyer. And it may be assumed, arguendo, that timely knowledge by union sup- porters of the attempted eavesdropping would have precluded any tolling of the limitation period. But that consideration is inapplicable here since none of the three was prounion: See, e g., V L.R.B. .lied Products Corp. supra. Pacific Interrcom Co.. supra. I G.C Br. at pp 1-2. See infra of the duties, including parking lot detail and shisa calls." that Respondent routinely assigns to funeral di- rectors. r Resp. Exhs 19 and 20. The statistics relating to Fanning cover only jobs associated with funerals (and not jobs such as shiva calls). Moreover the statistics show assignments only for a 6-month period in 1978, May I through October 31. But no one contends that either set of statistics is unrcpresentative of its respective year in respect to the jobs it purports to cover In 1978 Fanning drove the lead car in 20 out of every 100 funerals conducted by Respondent The comparable figure in 1980 was 6 or 7 out of every 10) funerals 8 In 1978 Fanning drew parking lot duty at 9 of every 100 funerals. In 1980 that figure Jumped to 17 to 18 out of every 100 funerals. 843 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tasks Routinely Handled By Respondent's Funeral Directors Limousine Driving: "Your limousine driver has a great deal of family contact. He [picks] up the family probably an hour before the service time. He is with them into the funeral home. He stays with them after the service, through the procession to the cemetery, returns them home again. He is prob- ably in contact closely with the entire family for about two hours."9 Lead Car Driving: Leading procession from fu- neral home to cemetery. Clergyman generally rides in the lead car. Responsible for assuring that events at cemetery flow smoothly. Directing Graveside Services: Graveside services are held entirely at the cemetery (no service at fu- neral home). Graveside services are small (in terms of number of people involved), simple, and short. Embalming and Cosmetology: Using procedures to preserve the corpse and enhance its appearance. The most technically demanding tasks done by fu- neral directors. Ushering: Assigned job for funeral directors only for funerals involving a service in Respondent's chapel at which attendance is unusually large. Hearse Driving: Driving hearse from funeral home to cemetery. Routine job.' "Removals": Taking corpse from place at which death occurred to funeral home. Routine job. "Shiva Calls": Many Jews observe a period of mourning called "shiva," after the death of a close relative. Shiva services involve the use of such ap- purtenances as prayer books, candles, special seat- ing, yarmulkes, and the like. A "shiva call" is the delivery of those items to the family on the day of the funeral and the pickup of the materials a week later. Routine, "non-professional," job. Cleaning: Embalmer routinely cleans embalming area upon completion of task. Funeral directors pe- riodically clean embalming area extra thoroughly. Miscellaneous Errands: Using a company vehicle to pickup or deliver everything from office supplies to death certificates. Routine, non-professional, jobs. Parking Lot Duty: Always assigned where service is held at funeral home. Involves assisting drivers into and out of the home's parking lot. Unpopular job. Washing And Waxing Funeral Home's Vehicles: Unpopular job. But that change was unrelated to Fanning's protected activity. The January 1980 date to which the General Counsel refers as the start of Respondent's discrimination I Testimony of witness Tickner. "0 Occasionally involves long-haul driving, as where death occurs in the Washington, D.C., area and burial is to be in the New York City area. In such cases the job is a preferred one since it can produce consid- erable overtime. against Fanning was not a significant one in terms of any change in Fanning's support for the Union or communi- cations to the National Labor Relations Board or the like. And the record supports Respondent's contention that the change was due to management's conclusion that Fanning's behavior and appearance were sufficiently unattractive to require a reduction in his access to Re- spondent's clientele. '' The weight of the evidence shows that Fanning is sloppy in dress when at work and cannot be counted on to be gracious toward Respondent's clientele. In addi- tion, Fanning has some mannerisms that Respondent felt its clientele would find unattractive.l2 As a result Re- spondent had always tried to avoid assigning Fanning to jobs that required extensive contact with the public, such as limousine driving. Then, in 1979, some unsavory com- ments by Fanning plus the arrival of a new manager re- sulted in further exclusion of Fanning from jobs involv- ing public contact. On a number of occasions Fanning made anti-semitic remarks in the course of conversations with his fellow employees. Three of those remarks-the earliest of the three occurring in mid-1979-were reported to manage- ment. While Fanning did not make the comments in the presence of anyone but employees of the funeral home, remarks of that nature might well have had an adverse impact on any employer's willingness to trust Fanning with the public. And Respondent's concern could be ex- pected to be especially acute since its clientele is entirely Jewish. As for Respondent's new manager, Howard Tickner, he arrived during the November 1978-January 1979 strike. From his arrival forward, Tickner handled the as- signing of jobs to the home's funeral directors. Tickner was demanding in his standards of appearance and be- havior and quickly decided that Fanning should be kept away from public contact as much as possible. On the other hand, Tickner recognized Fanning's skills as an embalmer-cosmetologist and permitted Fanning to do considerably more embalming-a nonpublic-contact job but one that Fanning liked-than any of Respondent's other funeral directors. In light of the state of the record concerning Fanning's appearance, behavior, and anti-Semitic comments, it I' I have considered Fanning's claim that Respondent also discriminat- ed against him by not allowing him to handle "arrangements" (i.e., dis- cussions with representatives of the deceased about the kind of services that should be held); by increasing the number of shiva calls he had to make; by ordering him to clean the funeral home's chapel; and by reduc- ing the amount of overtime work (long-distance hearse driving) that Re- spondent assigned to him. But the record fails to show any such discrimi- nation. In fact, the record generally affirmatively shows that such changes did not occur. For example, Fanning was on vacation on the I day that Respondent ordered its funeral directors to clean the chapel: See sec. VII, below. "a The following exchange occurred at the hearing: Q. [By Respondent's counsel] Did Mr. Tickner ever tell you that Mr. Goldberg did not want Mr. Fanning to represent the funeral home in public because of his mannerisms? THE WITNESS [G.C. witness Burchell]: Many times, sir. JUDGE GROSS: What was he referring to . . . when you talked about Fanning's mannerisms? THE WITNESS: Because Bobby [Fanning] is a homosexual and that reflected poorly upon the funeral home. 844 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC. would take some unambiguous evidence to indicate that Respondent's assignment of an increased number of park- ing lot stints to Fanning was connected with Fanning's protected activity. But no such evidence was introduced. It is true that there is evidence of Respondent's union animus: Goldberg is antiunion; and Tickner was of course aware of that. Further, Tickner believed that union representation of employees, while appropriate in some settings, was out of place at funeral homes. (See sec. VIII, below.) But the record as a whole suggests that Tickner's views about unionism at funeral homes did not interfere with his relationships with any of Respondent's employ- ees. Moreover, Fanning was a member of the Union from the start (in 1978), as management knew. And the General Counsel's allegation is that the discriminatory treatment of Fanning began in early 1980. Thus, one must look beyond union animus to find a basis for the change in Fanning's job assignments. Fanning testified that Respondent's discrimination against him began as soon as the strike ended, in January 1979. But that was still long after Fanning began supporting the Union. Fi- nally, January 1979 was when Fanning first started re- ceiving assignments from Tickner. Fanning's testimony about the timing of the discriminatory treatment (that it started in early 1979) not only fails to square with the General Counsel's allegation (that it started in early 1980), it also fails to take into account that a new pattern of job assignments does not independently suggest an- tiunion discrimination if it first occurs when a new man- ager arrives on the scene: See Mid Island Textile Indus- tries, Inc., 214 NLRB 484, 493 (1974). I accordingly conclude that the General Counsel has failed to show that Respondent's assignment of jobs to Fanning violated the Act in any respect. IV. THE ALL.EGATIONS THAT RESPONDENT UNLAWFULL Y DISCRIMINATED AGAINST ROBERT ONTKO A. Introduction Respondent hired Robert Ontko as a full-time employ- ee in June 1978. Ontko walked the picket line for the full duration of the November 1978-January 1979 strike against Respondent. And he continued thereafter to be an active supporter of the Union. Respondent fired Ontko in November 1980. The General Counsel claims that Respondent fired Ontko because of Ontko's support for and activities on behalf of the Union. The General Counsel also claims that, as in the case of Fanning, beginning in early 1980 Respondent discriminatorily assigned Ontko to undesira- ble tasks. B. Ontko's Performance, Pre-1980 Ontko's performance as an employee always had irri- tating elements to it. But all agree that prior to 1980 those elements were outweighed by some very favorable ones. In that latter respect all witnesses agreed-and again, this relates to period prior to 1980-that Ontko worked extremely well with Respondent's clientele, Ontko has good diction, a polished voice, and, at that time, was "a very snappy dresser, neat precise dresser, always well groomed, always made a good appear- ance." I3 Turning to Ontko's less attractive qualities, the main one is that, on the job at least, he behaved as though he were scatterbrained. All of Respondent's employees were frequently called upon to use company vehicles to run errands. Ontko had a knack of getting lost while on those errands. As Tickner credibly put it, Ontko . . .seemed to have a way of getting lost when he was out on errands in which he was by himself. Such as shiva deliveries, pick-ups, the routine er- rands . .. . Any of these things seemed to take Bob twice as long as anybody else. He would come back usually explaining how he had a terrible time find- ing an address. A related problem was that Ontko tended to forget or overlook things when out on errands. And when that oc- curred Respondent had to use additional manpower to repeat the errand. Two other of Ontko's qualities had more to do with his relationship with management than his performance of tasks. One was that Ontko seemingly was unable to admit error or to apologize. No matter what went wrong when Ontko was out on an errand or the like, it was, from Ontko's point of view, never his fault. He did his job, Ontko would say, but unforeseeable and insurmount- able circumstances kept him from completing it as planned. Second, Ontko not infrequently treated oral communication with Goldberg as a "confrontation." Goldberg often is unpleasant in the manner in which he speaks with his employees. Ontko tended to respond by criticizing Goldberg for the way Goldberg addressed him. Not surprisingly, that infuriated Goldberg. Throughout 1978 and 1979 and into early 1980 Re- spondent appeared willing to accept these kinds of prob- lems. Thus, in that period of time Ontko was disciplined only once, and that had to do with an entirely different kind of problem: In September 1979 Ontko behaved in- appropriately with respect to one of Respondent's female employees, for which behavior Ontko received a I-week suspension without pay. C. Ontko's 1980 Record Ontko's nighttime job and the resulting problems. Some- time around the beginning of 1980 Ontko concluded that his income as a funeral home employee was insufficient to enable him to support his family. And in March 1980 he began working 8-hour shifts at a local hospital. His working hours there generally were from I I p.m. until 7 a.m., but some of the time were from 3 until 11 p.m. Ontko did not inform Respondent about his second job. (Ontko was sometimes able to work the 3-11 p.m. shift because on 2 days of the week Respondent allowed Ontko the afternoons off so that Ontko could, Respond- ent thought, attend classes in mortuary science. That will be covered in further detail below.) Ontko worked a full 40 hours per week, or something close to it, at the hospi- L3 Testimony of witness Tickner. 845 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tal. What that adds up to is that starting in early 1980 Ontko committed himself to working about 70 hours a week. That was a commitment he could not handle. The deterioration in Ontko's performance. Ontko's long- standing disorganization and ability to get lost continued at full force throughout 1980. At the same time Ontko's appearance took a decided turn for the worse and he de- veloped a generally unkempt appearance. On top of all that Ontko routinely was either absent or late. During the period February 29 through April 11 (slightly over 30 working days), Ontko was absent 28- 1/2 days. Then between the end of April and mid-Sep- tember, he was absent another 11 days. On the days he was at work during that period, moreover, he was often late. Generally, his tardiness was a matter of a few min- utes. But on one occasion Ontko was nearly an hour late; on another, 1-1/2 hours late; and, on a third, 2-1/2 hours late. On several occasions Ontko received written warnings about his absenteeism and tardiness, and one of the warn- ings explicitly threatened Ontko with discharge if either his absenteeism or tardiness continued. Ontko brought in physicians' statements covering most of the absences. And he advised Respondent that the major instances of lateness were caused by car problems. But only three funeral directors were scheduled to be at work at the funeral home on any given day. Given a work force of such small size, Ontko's absenteeism and lateness presented real problems for Respondent.14 Moreover Respondent was dubious about the validity of the physicians' statements, a suspicion that, as it turned out, was warranted. Mortuary School Issues. Respondent's operations are regulated by the State of Maryland's Board of Morti- cians. Under state law certain mortuary tasks must be done or supervised by a licensed funeral director. In order to become a licensed funeral director one must, among other things, be sponsored by someone with a li- cense, be certified as an apprentice funeral director, and take a series of courses in mortuary science. As the table below indicates, Respondent's hourly pay scale did not differentiate significantly between licensed funeral directors and apprentices. Respondent did, how- ever, pay "helpers" considerably less than either appren- tice or licensed funeral directors. Licensed funeral director-embalmer-$6.70 Apprentice funeral director-embalmer less than 6 months' seniority-$5.95 more than 6 months' seniority--$6.70 Helpers-$4. 30 14 On October 23, 1980, Goldherg wrote up Ontko as arriving at 8 :32 a nm. rather than 8:30 The General Counsel points to this as an example of Respondent having pretextually seized upon trivial mistakes by Ontko But In fact Oniko sas supposed to have been dressed and ready for work at 8:30, not merely at the funeral home He vas not ready until 8:48. And given his absentee and tardiness record over the prior 6 months. Re- spondent's decision to record the incident formally proves nothing Tickner sponsored Ontko as an apprentice applicant in the spring of 1979. And as noted earlier, Respondent per- mitted Ontko two afternoons per week off in order to attend mortuary science classes. Ontko began attending mortuary science school in 1979. He received six credits for his course work that year. But in 1980 Ontko did not attend any classes. And he refrained from advising management of that fact. Sometime around June 1980 Tickner happened on the fact that Ontko was not, and had not been, attending mortuary science classes even though he had been leav- ing work at noon 2 days a week purportedly to go to those classes. The situation infuriated Tickner. As Tickner saw things, attendance at those classes was a re- quirement for being designated an apprentice. And since Ontko was not attending classes he should not be consid- ered an apprentice. Tickner felt that under these circum- stances Ontko was defrauding Respondent by accepting the higher rate of pay that Respondent paid to appren- tice funeral directors (as contrasted to helpers). The situ- ation was especially galling to Tickner, moreover, since he had sponsored Ontko. Tickner vainly attempted to have the Board of Morti- cians revoke Ontko's apprentice license. When that failed Tickner demanded that Ontko prove that he was attend- ing classes. Ontko refused ahd the Board of Morticians again backed Ontko. (Ontko had earlier advised the board that, because of emotional difficulties that, he said, were brought on by stress at the funeral home, he had decided to "audit" the classes rather than take them for credit. But it is unclear whether Ontko had advised the board that he was working at a second full-time job and that, accordingly, his difficulties might be attributable to 70-hour workweeks.) In sum, by late 1980 Ontko was on very thin ice. His past weaknesses as an employee continued and new ones had cropped up. His strong points had vanished. He had alienated Tickner. His usual inability to get along with Goldberg continued. And his attendance and tardiness records were sufficiently bad for Respondent to have warned him that further absence or lateness would result in discharge. D. Ontko's Discharge on November 3, 1980 Ontko's performance. Shiva materials were scheduled to be picked up from two homes on November 3, 1980. As was Respondent's usual practice, the pickup instruc- tions for each home were written on a separate card. The instructions for one of the homes, on Basset Lane, specified that the pickup was to be made prior to 11 a.m. The card covering the pickup at the other home, on Blaine Drive, said nothing about a time limitation for the pickup. On the morning of November 3, Goldberg told Ontko to make the pickups, and he gave the two cards to Ontko. Ontko set out first for the Basset Lane home, at which the pickup was to be made before 11 a.m. The employee who had delivered the shiva materials to that home had had no trouble finding it. But Ontko got lost. Ultimately, however, he did find the home and picked up the equip- ment. 846 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC. Ontko proceeded (after stopping for lunch) to the locale in which he believed the Blaine Drive home was located. He was wrong, had to retrace his tracks, and then did locate the address. No one was home and a neighbor said the occupants were out of town. It was then about 12:30 p.m. Two hours had elapsed since Ontko had left the funeral home. Ontko called the funeral home, reached Goldberg, told Goldberg that he could not make the pickup from the Blaine Drive ad- dress, and went on to criticize Goldberg for sending him to make a pickup from a family that was not at home.' 5 Goldberg blew up and jumped to the erroneous con- clusions that: (1) it was the Blaine Drive home that had left instructions for the pickup to be made before 11 a.m.; and (2) Ontko had missed the pickup there because he had carelessly gone first to the home that had no time limitation for the pickup. Ontko did not clear up that misconception-he may not have been aware of Gold- berg's misunderstanding-and instead responded to Goldberg's anger by criticizing Goldberg for his discour- teous way of speaking. That did little to calm Goldberg, and after some further misunderstandings Goldberg an- grily told Ontko to return immediately to the funeral home. ' At that point Goldberg decided that Ontko ought to be fired and proposed that course of action to Tickner. Tickner concurred, and Ontko was fired that day. Respondent's stated reasons for firing Ontko. As of the date of the hearing Goldberg still was under the errone- ous impression that Ontko missed the pickup at the home that had given instructions for the pickup to be made prior to 11 a.m. Goldberg agreed that he did not check the cards to determine whether that in fact was the case but had arrived at his position "by deduction." As for the reasons that Ontko was discharged, Goldberg said that it was because of . . . Several reasons culminating into one. Number one is constant absenteeism; number two, his con- stantly being late for work. Number three, his shoddy appearance in his clothing. Number four, his failure to carry out an assigned duty that the other employees could do in half the time.... Number five, his being sent out to call for a family in the limousine and he didn't report on time and the family left in a private car, and they were quite dis- turbed. 1 7 Tickner knew about Ontko's performance on Novem- ber 3 only secondhand, from Goldberg. And Tickner's 'I Witness Ontko testified: I said, why did you send me on two pickups when I did not have the accurate address on the first one, and the second one the family is out of town, without having checked? I was disturbed that I had difficulty on both addresses. 'e As Ontko testified: Hie [Goldberg] was [talkingl so loud, so fast, and appeared to be using large-syllable words that I could not really understand him. except that he demanded I get back to the funeral home after I asked him the second time what he said. " Goldberg's mention of Ontko's failure to call for a family on time is a reference to a July 1, 1980, incident that caused Respondent consider- able embarrassment. testimony indicates that he thought that Ontko failed to make either of the assigned pickups. As for the reasons for Ontko's discharge, Tickner testified that the . . .immediate reason was his failure to complete an hour and a half errand in about two and half hours; however the major reason was his great long record of absenteeism, lateness, general failure to complete most errands in the time he should have, his falling down in his appearance, his general . . . deterioration-slipping in his alertness. His whole aspect was bad. I had enough [of] Ontko's going out, getting lost, being late, tying up cars, manpower in the name of himself, for undue [lengths] of time. Evidence of animus. Tickner, not long prior to the dis- charge, had told Ontko something on the order of: "I live every day for the opportunity to have your license revoked." And one of Ontko's co-employees, Burchell, testified credibly that Tickner had told Burchell that Goldberg could not stand Ontko, that Goldberg wanted to fire Ontko and was out to get him. Burchell went on to testify that after Ontko's discharge Tickner had told Burchell that Goldberg had "got Ontko" and that Gold- berg "was glad to be rid of him." But that testimony says little about animus. While all of those statements could in other circumstances have been implicit references to Ontko's union activities: (1) Tickner had made it clear that he was actively seeking to have Ontko's license revoked because of Ontko's failure to live up to his commitments regarding schooling: (2) as for Goldberg's wanting to "get" Ontko, not only had Ontko been performing poorly all through 1980, Ontko's responses to Goldberg's communications, whether or not justified by the way Goldberg communicated, were often extremely provocative. On the other hand, there is probably sufficient evi- dence in the record to support the conclusion that Ontko was discharged for unlawful reasons had Ontko's dis- charge been otherwise inexplicable. To begin with it is clear that the unionization of Respondent's employees upset and angered Goldberg. And as noted earlier, Tickner admittedly thought that a funeral home was no place for a union. As will be discussed in more detail in section V, below, moreover, when employee Burchell was hired in May 1980 Tickner portrayed employees Fanning and Ontko to her as troublemakers, people to stay away from. And Ontko's protected activities were a factor in Tickner's labeling of Ontko that way. Ontko's discharge, conclusion. Notwithstanding Re- spondent's union animus, I cannot conclude that Ontko's discharge was related to his membership in, support for, or activities on behalf of the Union, or to any other of Ontko's protected activities. Respondent did not dis- criminate against Ontko in 1979. And beginning in 1980 Ontko's performance deteriorated substantially. In addi- tion, Ontko's lack of forthrightness about his schooling 847 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was particularly upsetting to Tickner. It is clear, in fact, that Respondent kept Ontko on as long as it did only be- cause it recognized that it would inevitably have to liti- gate Ontko's discharge before the National Labor Rela- tions Board. And there was no union activity just prior to November 3 by Ontko or any other employee that would make discharge on that date suspicious. As for Goldberg's misunderstanding of what went wrong on November 3, Ontko's manner of communicat- ing with Goldberg almost ensured that the mixup would not be resolved. All in all, by November 1980 various facets of Ontko's performance and behavior had irritated both Goldberg and Tickner nearly beyond their endurance. And Ontko's performance on November 3 epitomized everything about Ontko that irritated them: getting lost; taking too long; failing to get the job done; not taking responsibility for those failures and, indeed, blaming Goldberg for them; and on top of everything else, criticizing Gold- berg-who was, after all, chief executive and majority shareholder of the funeral home-for his lack of courtesy in the way he talked about the situation with Ontko. It was more than enough for both Goldberg and Tickner to conclude that, litigation or no, they were unwilling to have Ontko around any longer. E. Respondent s Alleged Discriminatory Assignment of Jobs to Ontko The General Counsel claims that, as in the case of Fanning, beginning in early 1980 Respondent assigned undesirable jobs to Ontko because of Ontko's support for the Union. One such issue in that respect is why Tickner assigned Ontko and co-employee Burchell to clean the funeral home's chapel on July 17, 1980. That will be dis- cussed in section VII, below. As for other kinds of job discrimination, it is noteworthy that Ontko drew more parking lot duty in 1980 than in 1978 even though, as discussed above, his hours of work declined sharply. And looking at limousine duty (one of the more prestig- ious jobs), he was assigned that much less often in 1980 than in 1978.18 The only other evidence in point is testimony by Ontko indicating that he felt that Goldberg singled him out for extra work and for menial jobs (such as car washing). But as for Ontko's testimony, he tended to see ,himself as being picked on and singled out no matter what the circumstances. And while his testimony indi- cates that he truly believed that to be the case, it is not otherwise reliable. As for the statistics, Ontko's performance in 1980 was not such as to command the gratitude or respect of his employer. It is not surprising under those circumstances that his parking lot duties increased and his limousine duties decreased. And for all that, employee Jenkins, who was a staunch opponent of the Union, drew more parking lot duty in 1980 than did Ontko. In sum, the General Counsel has failed to prove his contention that Ontko's job assignments in 1980 were a product of Respondent's union animus. I' Based on statistics from Resp. Exhs. 19 and 20. V. THE GENERAL COUNSEL'S ALLEGATIONS RELATING TO RESPONDENT'S EMPLOYMENT OF JOANNE BURCHELL A. Introduction JoAnne Burchell began working at Respondent's fu- neral home in May 1980. She was fired about 6 months later. The General Counsel claims that the discharge was discriminatorily motivated, and that allegation will be covered in section VI, below. This part of the Decision will cover the General Counsel's allegations that Tickner and Goldberg made statements to and about her that vio- lated Section 8(a)(l) of the Act; and that "on various dates since on or about July 14, 1980," Respondent dis- criminatorily assigned Burchell to "undesirable job duties such as parking lot details and making shiva calls in order to dissuade her in her support of the Union." B. Statements Made by Tickner During the Employment Process According to Burchell, during a preemployment inter- view Tickner asked her how she felt about unions; re- ferred to the union sympathies of Fanning and Ontko and said that Goldberg wanted to get rid of both em- ployees; warned her that Fanning and Ontko would hound her to join the Union; drew dark pictures of Fan- ning and Ontko; told her that after August I the Union would be out anyway; and told her that if she "sided with management" she would "go far in the business." Finally, Burchell testified, during that employment inter- view Tickner advised her that while Respondent did maintain health insurance coverage for those of its em- ployees who wanted it, Respondent planned to improve that coverage after the Union was voted out and that Burchell accordingly would do well to wait until August before asking for coverage under Respondent's health in- surance plan. Respondent's witness Tickner denied that he made any of the above statements. I find that the facts relating to Burchell's employment interviews were as follows. At Burchell's first job interview Tickner discussed the duties of funeral directors and showed her around the fu- neral home. He was impressed by Burchell, and a day or two later he called her to offer her a job. Burchell ac- cepted, and Tickner and Burchell agreed that while Bur- chell should give her then present employer 2 weeks' notice she should meet with Tickner again in the near future. That meeting occurred on April 17. Going into that meeting Tickner had to decide what, if anything, to tell Burchell about the various interrelation- ships at the funeral home. Tickner liked Burchell and thought she would be a good addition to Respondent's staff. On the other hand, there were some negative as- pects to the circumstances at the funeral home that Tickner felt a prospective employee ought to be told about. The situation at the funeral home was tense. Goldberg was strongly antiunion, yet a union was in place at the funeral home. Fanning's appearance and mannerisms were sufficiently unattractive for Tickner to feel that Fanning should be kept away from the public. 848 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC Ontko and Goldberg could not communicate without getting into an altercation. Goldberg was always ready to believe the worst of his employees. And that attitude was mirrored by Fanning and Ontko, each of whom tended to see any management decision adversely affect- ing them as a product of management's antiunion views. Jenkins was antiunion and would frequently discuss with mangement the activities of the prounion employees- behind their backs. Jenkins accordingly was not on speaking terms with Fanning. And Fanning and Ontko, as Tickner saw it, were inevitably going to attempt to convince Burchell to see things from their point of view and to recruit Burchell into the Union. That would be a problem for Burchell not only because of Goldberg's an- tiunion views, but more importantly because by May 1980 Fanning and Ontko were in most respects very poor role models. Tickner's response to all this, after Burchell had ac- cepted the job offer Tickner had made, was to tell her about the collective-bargaining agreement in place at the funeral home; to let her know that she could join the Union but did not have to (since the collective-bargain- ing agreement did not require union membership); and then, as a way of determining how to proceed further, to ask how she felt about unions. When Burchell responded that she was antiunion, Tickner mentioned Goldberg's similar bias; described, accurately, some of the shortcom- ings of Fanning and Ontko; and warned Burchell that Fanning and Ontko would attempt to recruit Burchell into the Union. Tickner believed, and indicated to Bur- chell, that given the situation at the funeral home it would be a mistake for Burchell to become a union member and thereby join forces with Fanning and Ontko. And because of his concern for Burchell, Tickner asked her to let him know if either Fanning or Ontko harassed her in any way, including about union member- ship.' 9 C. The Period May Through June 1980 Once Burchell began working for Respondent, Tickner assigned her jobs as he would any other employ- ee, without any favoritism or discrimination. Tickner nonetheless remained concerned that Ontko or Fanning might harass Burchell into joining the Union even though she opposed it. Tickner accordingly asked Bur- chell about that several times, again mentioned that she ought to tell him if that occurred, and continued to speak of Fanning's and Ontko's shortcomings. The General Counsel claims that during this same period Tickner and Goldberg promised Burchell special benefits that they tied to her antiunion position. The record shows the following in this respect. Tuition for mortuary science school. Shortly after Bur- chell was hired, Goldberg had a discussion with her about mortuary science school. (As discussed earlier, completion of various courses in mortuary science is a prerequisite for becoming a licensed funeral director.) In the course of the conversation Burchell said that she 'i As for the General Counsel's contentions regarding coercive state- ments in respect to medical insurance, the subject came up, but Tickner did not connect it in any way with union matters. And Tickner said noth- ing about an election to be held in July or August. would like to start taking the requisite courses, but that it "depended upon my financial situation." 20 Goldberg re- sponded that Burchell need not "worry about the money," that when the time came "the money will be there for you." Goldberg went on to say that he had given Jenkins money in order to enable Jenkins to attend school. The cleaning contract. Burchell, together with other members of her family, ran a house-cleaning service. Goldberg found out about that cleaning service by acci- dent and spoke to Burchell about it. Goldberg told Bur- chell that the cleaning of the funeral home was then being done by a person who had been doing the work for many years but now was nearing retirement age. Goldberg suggested that should that person retire Re- spondent could perhaps use Burchell's cleaning service. But Goldberg thought better of the idea when he real- ized that it would mean additional compensation for Bur- chell by Respondent and, perhaps, additional working hours; and that, in turn, might present problems under both the collective-bargaining agreement and wage and hour laws. Contrary to the General Counsel's allegations, Goldberg did not tie Respondent's contracting with Bur- chell's house-cleaning service to the employees voting in favor of decertification of the Union, or to Burchell stay- ing out of the Union, or the like. D. The Period July-September 1980 The second decertification election was held on July 16, 1980. Tickner learned somehow that Burchell had voted for the Union. And not long thereafter Burchell misinterpreted something that Tickner said to her about Ontko (regarding Tickner's trying to lift Ontko's appren- tice license21) and informed the Union and, subsequently, the Board, about Tickner's comments. Ever since Burchell had begun working at the funeral home in May, Tickner had treated Burchell protectively and as a confidant and, further, had assumed that her po- sition regarding the Union was as she described it to him in April: that is, very much opposed to it. Burchell's vote and her subsequent communication to the Union and the Board about Tickner's comments about Ontko accordingly seemed to him to be a betrayal. He respond- ed by telling Burchell that he knew that she had voted for the Union and that he considered that she had "stabbed him in the back."22 And Tickner later told Ontko that he felt that Burchell had betrayed him by publicly disclosing things that he had told her confiden- tially. Tickner also told Ontko that Burchell had been highly considered by Goldberg and himself "and if she had only learned to keep her mouth shut she would have had it made."'2 Finally, Tickner had a somewhat similar conversation about Burchell in mid-October, this time with Fanning. Fanning opened the conversation by telling Tickner that Burchell was upset by the change in the relationship be- tween Tickner and Burchell. Fanning said that, as for the 'o Testimony of witness Burchell. " See sec. IV, above. as Testimony of witness Burchell. a2 Testimony of witness Ontko. 849 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information about Tickner that Burchell had passed on to the Union, she had not meant that personally and hoped that he did not take it personally. Tickner re- sponded by saying that he did indeed take that action by Burchell personally, particularly since what she had said about him was a fabrication. The above findings are based largely on the testimony of Burchell, Fanning, and Ontko. I credit that testimony, notwithstanding the fact that all three witnesses general- ly showed themselves to be inaccurate in their recount- ing of facts, because that credited testimony squares with the way I think Tickner would have behaved in the situ- ation he was facing at the time. The General Counsel's witnesses also testified that Tickner acted on his feelings of betrayal by, among other things: (1) threatening to hand out more onerous work assignments to Burchell, and then actually doing so; (2) threatening to do what he could to make Burchell look bad; and (3) telling Burchell that she was finished in the funeral business and suggesting that she had better quit. But none of that testimony was credible. 24 E. Statements of Respondent's Supervisors to and About Burchell-Conclusion The earlv days of Burchell's employment at the funeral home. Respondent violated the Act when Tickner, an ad- mitted supervisor: (1) asked Burchell how she felt about unions; (2) warned Burchell that Fanning and Ontko would try to recruit her into the Union and suggested to Burchell that she let Tickner know if she was harassed in that way; (3) told Burchell that Goldberg was opposed to the presence of the Union at the funeral home; and (4) advised Burchell to stay out of the Union. Tickner made those statements as much as a friend as a supervisor, and he had Burchell's best interests in his mind. But that does not obviate the coerciveness of his statements given Bur- chell's vulnerable status at the time Tickner made them: She was just beginning her employment at the funeral home. As for Goldberg's remark about school financing, Goldberg referred to having supported Jenkins in that way, and Jenkins was the only nonunion funeral director employed by Respondent. While that alone would not be enough to have made Goldberg's comment coercive, Goldberg's union animus and Jenkins' antiunion views were notorious. Under the circumstances it was inevita- ble that Burchell would hear the comment as a promise of benefits for staying out of the Union. Goldberg's re- marks accordingly violated Section 8(a)(l). But since Goldberg's discussion about the cleaning contract could not reasonably have been heard to carry any similar promise with it, it did not violate the Act. The postelection period. Respondent violated the Act when Tickner told Burchell that he knew that she had voted for the Union. Stanford Seed Co., 245 NLRB 1064, 1067 (1979). And Tickner's remark to Ontko that Bur- chell had "stabbed him in the back" by, among other things, voting in favor of the Union also violated the 24 One of the job assignments that Burchell was sure was associated with her prounion position was Tickner's order that she help clean the funeral home's chapel. That particular assignment will be discussed below, in sec. VII. Act. Tickner ordinarily had no quarrel with employees who favored union representation. But in April Burchell had told Tickner that she was antiunion and had never let him know that her views had changed. Thus the "stabbed in the back" remark was Tickner's reaction to having been misled rather than to Burchell's voting pref- erence. Nonetheless, a supervisor's expression of anger over an employee's prounion vote is inherently coercive. Wilker Bros. Co., Inc., 236 NLRB 1371, 1384 (1978), modified 652 F.2d 660 (6th Cir. 1981). Similarly, Tickner's comment that if "[Burchell] had only learned to keep her mouth shut she would have had it made" stemmed from Burchell having misused some- thing Tickner had told her in confidence, not merely from the fact that Burchell complained to the Union and the Board about Tickner. But the comment suggests that Respondent planned to treat Burchell less favorably as a direct result of her having communicated to her union about something her supervisor had said. Again, that is too inherently coercive to be permitted. On the other hand, Tickner's comment to Fanning, in response to Fanning's question, that he did indeed take personally the fact that Burchell had informed the Union (and, subsequently, the Board) about a remark he had made to her in confidence did not violate the Act. Em- ployees cannot reasonably be coerced by a supervisor's expression of anger, even if connected with an employ- ee's complaint about the supervisor to a union or the Board, where: (1) the supervisor's anger is the inevitable result of the nature of the employee's action, and (2) the supervisor does not threaten to take action based on that anger. Both criteria apply to Tickner's comment to Fan- ning. Vt. BURCHELL'S DISCHARGE Carol Dubin is Respondent's sole full-time secretary and its bookkeeper. All of Respondent's employees, in- cluding Burchell, were told by management that in the absence of any supervisor they should follow Dubin's di- rections. And at the funeral home Dubin did from time to time hand out assignments. Moreover she was consid- ered the "office manager," had a close working relation- ship with Goldberg, and gave out paychecks and the like to the employees. Dubin opposed the Union, and Dubin disliked Burchell to the point of using epithets when re- ferring to Burchell (as Burchell knew). On the morning of November 13, 1980, Dubin made a request of Tickner. An out-of-town friend of Dubin's was visiting her and had to leave that day. The day was a quiet one and Dubin asked Tickner for the use of a limousine (and driver) so that Dubin could take her friend to a local airport. Tickner assented. Burchell was the only employee available that morning who was quali- fied to drive the limousine. As a result Tickner assigned the driving job to Burchell even though Tickner knew that Burchell and Dubin disliked each other. Burchell and Dubin left the funeral home about 10:30 a.m. As they were leaving Tickner said to "have a good time." 25 25 Testimony of Burchell. 850 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC. Burchell and Dubin uneventfully picked up Dubin's friend (and a friend of that friend) and got them to the airport, where Dubin saw them off. At that point, probably around 12:30, Dubin and Bur- chell decided to stop at the airport bar for a drink. Dubin ordered what was the first of a considerable number of cocktails. Burchell opted for beer. Tickner, back at the funeral home, knew that Dubin had scheduled a meeting at the funeral home at 1:30 with one of Respondent's shareholders and assumed that Bur- chell and Dubin would return well in advance of that time. They did not. Instead, about 1:30 Tickner got a telephone call from Dubin. Dubin told Tickner that she was calling from the airport and that "she was having an awful problem. She could not get Mrs. Burchell to leave the bar." 26 (As it turned out, Dubin was at least as re- sponsible as Burchell for their lengthy sojourn at the bar. But Tickner did not then realize that.) Tickner told Dubin that he wanted to speak to Burchell. And when Burchell picked up the telephone he asked her what was happening. Burchell said that she was "having a good time." 2 7 Tickner responded with an angry "come back [to the funeral home] at once." Burchell answered "yes, sir," and the conversation ended. Burchell told Dubin about Tickner's order. But Dubin said she wanted to stay at the bar. Burchell stayed with her. It takes about 45 minutes to drive from the airport to Respondent's funeral home. Tickner accordingly expect- ed the limousine back by about 2:15. But Burchell and Dubin did not return to the funeral home until just before 4 p.m. Dubin was so intoxicated she could not seem to get herself out of the limousine. And while Bur- chell was in better shape than that, she was obviously af- fected by the alcohol she had been consuming (as by being unable to stop laughing when she arrived back at the funeral home). Tickner, in fact, considered Burchell to be drunk, and told her so. Given the condition of Burchell and Dubin, Tickner decided that there was nothing further he could say or do at that time, and sent Burchell home. (While Tickner was in the process of telling Burchell to go home, Dubin organized herself enough to get into her own car and drive away.) Both Dubin and Burchell came into work on Novem- ber 15, Saturday, and Tickner spoke separately to each about the airport incident. And each claimed that the problem was that the other would not leave the airport bar. Tickner telephoned Goldberg about the situation. And on Monday Tickner fired both Dubin and Burchell. With Fanning present (in his position as union steward), Tickner told Burchell that she was being fired because he could not tolerate her sitting in a bar during working hours and because she had failed to follow his direct order to return to the funeral home. Burchell asked for a written statement regarding her discharge. She was given a letter that read: 26 Testimony of Tickner 2a Testimony of Burchell Effective this date you are hereby terminated from employment, for reasons of drinking during work- ing hours and direct disobeying my statement to return to work after a period of 2-1/2 hours lapse. 2 8 In late February 1981-about 3 months after Burchell's and Dubin's discharge-Fanning asked Tickner about Respondent's decision to fire Burchell. Tickner told Fan- ning that he thought Burchell had been an excellent worker. Tickner also said that he had considered sus- pending Burchell and Dubin, but that he decided against it because when the two came back from their suspen- sion there would have been "hell to pay." 2 9 A. The Claimed Reasons for Burchell's Termination Burchell's testimony. Burchell testified that, as far as she was concerned, Tickner's assigning her to drive Dubin to the airport was part of a deliberate setup to get her; and that even if that were not the case, her prounion activities had to be at the source of Respondent's action against her since her behavior clearly did not merit dis- charge. For one thing, testified Burchell, on November 10 she overheard Tickner say to Dubin that "he was going to get Burchell . . . give me two weeks and she will be out of here." (When Burchell "confronted" Tickner about that remark, Tickner replied, said Burchell: "you didn't hear what you think you heard.") For another, Tickner had frequently told Burchell that he considered her to be an outstanding funeral director apprentice and that Goldberg felt the same way. Third, she had only one beer while at the airport, and Respondent had at other times made it clear that an oc- casional drink while at work was acceptable (as during the course of lunches with Tickner and Goldberg during out-of-town trips). Fourth, when Burchell told Dubin, after the 1:30 tele- phone conversation with Tickner, that they had to leave, Dubin refused to go; and not only had Burchell previ- ously been instructed to follow Dubin's orders, but in ad- dition Burchell felt that it would have been wrong to leave a fellow employee under such circumstances. Bur- chell recognized, she said, that a telephone call to Tickner would have been in order at that point, but she had no money at all with which to make the call. Tickner's and Goldberg's testimony. Tickner testified that, while he thought that Burchell's work at the funer- al home had been good, her behavior on November 13 necessitated discharge. She disobeyed a direct order, she drank on company time, and she drove a company car while under the influence of alcohol. Moreover, . . .if I am going to let a six month's apprentice ignore my orders, I might as well leave. She was the newest apprentice that I [had]. If I am going to let her go out and spend an afternoon, ignore a 2R G.C. Exh. 13. The letter was signed by Tickner. 29 Testimony of witness Fanning. Fanning testified that Tickner went on to say that Respondent was unwilling to take Burchell back because of her union activities I do not credit that testimony 851 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direct order to return to the shop, who am I going to tell what to do? As for the relative levels of wrongdoing by Burchell and Dubin, Tickner said that he was faced with a situation in which Burchell and Dubin each said that the other was primarily responsible for the problem. Accordingly, Tickner testified, after the incident he telephoned Goldberg (who was away on vacation), de- scribed Burchell's and Dubin's behavior, and said that he thought "that whatever we did to one, had to be done to both." Tickner testified that Goldberg agreed with his assessment, and that Goldberg went on to say that he thought that both Dubin and Burchell "have to go." Goldberg's testimony, in turn, supported Tickner's ver- sion. As last matters, Tickner testified credibly that Burchell never told him that she wanted to call him from the air- port but did not have the change to do so. And Tickner noted that, when he talked to Burchell during that 1:30 p.m. telephone call, Dubin had just told him that she could not get Burchell to leave. He accordingly did not consider the possibility that Dubin might be unwilling to leave. If he had, he said, he would have told Burchell to return immediately even if Dubin was not willing to do so, and Burchell "might still be working" for Respond- ent. B. Burchell's Termination-Conclusion The General Counsel contends that Respondent fired Burchell, rather than giving her a lighter form of disci- pline, because of her support for the Union. Reyer, who left about the time Burchell was hired, was not a union member and did not support the Union. When Reyer left, argues the General Counsel, Respondent looked for someone who would be a replacement for Reyer both as a worker and as an antiunion voter. The General Coun- sel claims that Burchell appeared to fit that bill and was hired at least in part because of her antiunion views. But when she switched her position, and, on top of that, sup- ported the Union in its contentions that Respondent had violated the Act, Respondent looked for a way to get rid of her. The November 13 incident, says the General Counsel, provided the excuse. As for Dubin, she admittedly opposed the Union. But, the General Counsel argues, Respondent was willing to sacrifice Dubin in order to strengthen its position regard- ing Burchell. The General Counsel contends that Dubin's misbehavior on November 13 clearly was worse than Burchell's: She got more intoxicated; she-not Bur- chell-missed a meeting with one of Respondent's owners; and while Burchell understandably, in the Gen- eral Counsel's view, was reluctant to disobey Dubin's instructions to remain at the airport (since Respondent had told its employees that they should follow Dubin's orders), Dubin had no comparable excuse. Since Dubin's actions were more reprehensible than Burchell's, Respondent allegedly recognized that firing Burchell without firing Dubin would have been a give- away regarding the union animus behind Burchell's dis- charge. The General Counsel argues that it was only for that reason that Dubin was fired. And since she would not have been fired absent the union animus behind Bur- chell's discharge, the General Counsel goes on to claim that Dubin's discharge also violated the Act, notwith- standing Dubin's staunch antiunion views. But the General Counsel's contentions do not seem to me to be persuasive. Burchell's claim that the whole incident was a setup to get her shows only the extent of the bitterness that per- vaded the funeral home. On the other hand there is the fact of Goldberg's antiunion feelings and of Tickner's views about tbe inappropriateness of unions at funeral homes. The question that remains, however, is whether Respondent would have fired Burchell and Dubin even absent Respondent's union animus. And my conclusion is that Respondent would have. From management's viewpoint Burchell's and Dubin's behavior was outrageous. The two employees were due to be back at the funeral home by 1:30 p.m.-not only because that would given them ample time to have had a leisurely ride to and from the airport but also because of Dubin's appointment with one of Respondent's owners. Instead, at the time Tickner expected them back he learned that they were still at the airport and, moreover, in its bar. Tickner then gave both a direct order to return. Had they followed that order they would have returned about 2:15 p.m. But they did not in fact get back until almost 4 p.m., more than 1-1/2 hours after their expected arrival time. And when they did finally return both showed the effects of alcoholic consumption: Dubin could hardly stand up, and Burchell could not seem to stop laughing notwithstanding the fact that, given the sit- uation at hand, that response was less than appropriate. (I do not credit Burchell's claim that her alcoholic intake that afternoon was limited to one beer.) To make matters worse, in terms of the disciplinary situation facing Respondent, Burchell and Dubin each blamed the other. And there had been no love lost be- tween them even prior to this incident. The personnel situation at the funeral home accordingly would have bordered on the impossible had the two been allowed to return to work, whether or not after a period of suspen- sion. Under all those circumstances Respondent's decision to fire both Burchell and Dubin was predictable. As for the General Counsel's claim that Burchell rea- sonably thought that she had to take orders from Dubin, it is clear that Tickner did not see things that way. In any case, given Tickner's direct order to return, the situ- ation would not have been an ambiguous one to an em- ployee interested in doing what he or she was supposed to do. Moreover an order by an already intoxicated Dubin to remain in a bar was not one that required care- ful consideration. Turning to the lack of money with which to make a telephone call, Burchell is both capable and resourceful. Had she wanted to get in touch with Tickner she very quickly would have found a way to do so. Finally, the willingness of Tickner and Goldberg to have a drink with Burchell when taking breaks in the course of long automobile drives hardly shows a general- 852 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC. ized approval of employees' intoxication during business hours. As for Respondent's action against Dubin, the General Counsel's contention that Dubin's discharge violated the Act rests on the premise that Respondent's action against Burchell was a product of Respondent's animus. Since that premise has not been shown to be valid, the General Counsel's case in respect to Dubin also fails. VII. THE CHAPEI CLEANING On July 16, 1980, the Board conducted a rerun of the decertification election held on February 25, 1980. (The vote, which was announced that same day, was four votes for the Union, four votes against the Union, and three challenged ballots.) The following day was a slow one. No funerals were scheduled to be held, and there was only one embalming to be done. Three funeral directors were on duty: Bur- chell, Jenkins, and Ontko. Tickner ordered Burchell and Ontko to give the chapel-the room at the funeral home in which services were held-a "stem to stern" cleaning. In the meantime Tickner sent Jenkins on an errand. But when Jenkins returned, Tickner ordered him to clean the four bathrooms at the funeral home that were used by the public. Burchell and Ontko spent most of the day cleaning the chapel. Jenkins spent about 3 hours cleaning the bath- rooms. The General Counsel claims that it "is obvious" that Tickner's order to Burchell and Ontko to clean the chapel was "in retaliation for their votes." The General Counsel does not dispute that the chapel was dirty and needed cleaning, or that the cleaning improved the ap- pearance of the chapel. But he claims that the task was one for a janitor to do, not funeral directors; that funeral directors had never before been assigned the job; and that in any case Tickner's failure to assign Jenkins to the job shows that the assignment was a discriminatory one. Tickner, on the other hand, testified that he "made that assignment because the chapel was getting filthy in my estimation and we had no services that day. It looked like a good day to do it." The record fails to support the General Counsel's con- tentions. The chapel was dirty and the day was slow. Jenkins, who was antiunion, was assigned at least as onerous a task as prounion employees Burchell and Ontko, albeit for a shorter period. And Respondent's management said nothing that would indicate that the chapel cleaning had any connection with any protected activity. As for timing of the assignment, it did occur I day after Respondent learned that Burchell supported the Union. But Ontko's vote at the July 16 election had little meaning: Respondent had known for nearly 2 years that Ontko favored the Union. And Tickner chose July 17 to have the chapel cleaned knowing that the Union's most active supporter, Fanning, was on vacation. (Fanning testified that he participated in the chapel cleaning. But it is clear that his testimony was wrong.) VIII. THE OCTOBER 31 "BULI. SESSION" A. The Facts On October 31, 1980, employees Burchell, Fanning, Kosh, and Ontko were relaxing in the funeral home's locker room after cleaning the embalming room. Kosh, it may be recalled, is the janitor who came across the mi- crophone in the vent in the employee lounge (see sec. II, above) and told Reyer not to say anything about it. Kosh had crossed the picket line during the November 1978- January 1979 strike at the funeral home. Burchell, Fan- ning, and Ontko were openly prounion. Tickner hap- pened by, and an informal and friendly "bull session"30 ensued. The discussion ranged widely. It included such topics as Tickner's background in the funeral business; the rampant antagonisms at the funeral home that put ev- eryone there under considerable tension; why Tickner was willing to stay on in such circumstances; Tickner's views about unionization of funeral home employees; and a suggestion by Tickner that the employees find jobs elsewhere. As for Tickner's comments about unions and funeral homes, he said that he "didn't think" that unions be- longed in funeral homes. Tickner continued: Most funeral homes are small. They're very close, personally held, and in many cases, family operated. The whole thing just doesn't work out well. The employer is bound to take it as a direct slap in the face when employees bring somebody else in to help him run the business for him, somebody that doesn't know anything about it. Tickner went on to say that he felt that, on the other hand, "there is a definite place for unions in a larger or- ganization [such as] UPS or . . . the mines, General Motors." Turning to Tickner's suggestion that the employees find work elsewhere, the comment was related to the discussion about the tension that everyone felt at the fu- neral home. Three weeks earlier Tickner had called Re- spondent's employees together and ordered a "cease fire" to the infighting between them. Continuing in that vein, Tickner had said that: He wanted the aggravation stopped, the running [to him], the tattle tale-Bobby did this, JoAnne did that, Robert did this. He wanted it stopped. He was tired of it.31 When the subject of tension among the employees again came up, this time in the informal setting of the October 31 gathering, Tickner opined that the tension was a product of the various strongly held views about unionization and suggested that Burchell, Fanning, Kosh, and Ontko would all be better off in a less antagonism- filled atmosphere elsewhere. ,O The term is Tickner's. SL Testimony of witness Burchell 853 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Conclusion For present purposes it can be assumed that Respond- ent would have violated Section 8(a)(l) had Tickner told Burchell, Fanning, and Ontko that they, as union sup- porters, should find jobs elsewhere: Rolligon Corporation, 254 NLRB 22 (1981); 726 Seventeen Inc., t/a Sans Souci Restaurant, 235 NLRB 604, 606 (1978). But Tickner in- cluded Kosh in his suggestion that the employees find jobs elsewhere, and Kosh was not considered a union supporter. Moreover Tickner's remark came on the heels of the employees' comments about the uncomfortable degree of tension at the funeral home and an employee's question about Tickner's leaving. And a few weeks before Tickner had expressed his irritation at the tattling by and backbiting among all of Respondent's employees, both prounion and antiunion. Under these circumstances it should have been evident that Tickner's suggestion that the employees find jobs elsewhere was merely an expression of his opinion about how the employees might best advance their own well-being. Concomitantly Tickner's remark could not reasonably have been deemed to have threatening overtones. It accordingly did not violate the Act.3 2 IX. THE GENERAL COUNSEL'S ALLEGATIONS REGARDING RESPONDENT RESTRICTING UNION ADHERENTS TO THE EMPLOYEE LOUNGE Beginning at least as far back as January 1979, and perhaps even earlier, Respondent had a stated policy of requiring employees to remain in the funeral home's em- ployee lounge when they were not actually engaged in assigned work. By the summer of 1980 there were only four funeral directors in the bargaining unit: Burchell, Fanning, and Ontko, each of whom supported the Union; and Jenkins, who was antiunion and, in addition, regular- ly reported to management about any activities and state- ments of the union members that he felt were contrary to Respondent's interests. Because they knew that Jenkins served as an informer to management, Burchell and Fan- ning, and to a lesser extent Ontko, disliked Jenkins and preferred not to have him nearby. And Jenkins, on his part, felt very uncomfortable in the presence of Burchell and Fanning. The result of that set of relationships is that, notwith- standing Respondent's policy, Jenkins avoided the em- ployee lounge. (On breaks Jenkins would use one of the other rooms in the funeral home for relaxation or would volunteer for bookkeeping-type work in the office.) On August 2, 1980, Jenkins fell asleep while resting in the funeral home's "small chapel." Burchell and Assist- ant Manager Ford came across Jenkins and reported the incident to Goldberg. Goldberg, in turn, told Jenkins, 3' Neither the complaint nor the General Counsel's brief alleges that Respondent violated the Act when Tickner commented about the place of unions in funeral homes and about the reaction of funeral home owners to unions. Accordingly, the question of whether those comments were an allowable expression of opinion or an impermissible interference with the employees' Sec. 7 rights need not be decided. Even assuming that Tickner's comments come within the protection of Sec. 8(c), howev- er, it is appropriate to take them into account in considering Respond- ent's behavior in other circumstances (see S. S. Kresge Company, 197 NLRB 1011, 1012 (1972)), and I have done so throughout this Decision. that same day, not to let it happen again. Then, the fol- lowing day, Goldberg called a meeting of Respondent's funeral directors. At that meeting Goldberg again told the employees that only the employee lounge was to be used for relaxation. About that same time management posted a memorandum that stated: We seem to be developing a problem, of the em- ployees using the furniture in the Viewing Room and upstairs Viewing Room to lounge . . . We will not tolerate this! There is a lounge for the employ- ees, and it will be used for this purpose. The View- ing Rooms, as well as the entire first floor furnished area are not for the purposes of relaxation. Should you feel otherwise, we would suggest your notifying management and permission will be granted for you to sign out! 33 Notwithstanding Goldberg's comments and the memo- randum, Jenkins continued to spend his free time in rooms other than the lounge. And Burchell, Fanning, and Ontko all felt that Respondent allowed Jenkins to do so because of his antiunion position. The question is whether Respondent violated the Act when Goldberg made the use-the-lounge statements on August 3 or when, despite its stated policy to the con- trary, Respondent allowed Jenkins to spend his non- worktime in areas other than the lounge. While the issue is a close one, my conclusion is that Respondent did not violate the Act in either of these respects. On the one hand, Goldberg was antiunion, so that it was easy for the prounion employees to connect manage- ment's tacit grant of permission to Jenkins to remain out of the lounge to Jenkins' opposition to the Union. But too many factors cut the other way to conclude that Respondent was motivated by union animus in its August 3 statements or when it permitted Jenkins to spend his free time in areas other than the lounge; or to conclude that Respondent's actions reasonably tended to coerce, interfere with, or restrain the employees in the exercise of their Section 7 rights. For one thing, the August 3 use-the-lounge policy statements about which the General Counsel complains were precipitated by management having learned that a nonunion employee-Jenkins-had fallen asleep in one of the other rooms of the funeral home. And Respondent's employees all knew that. For another, the prounion em- ployees did not like having Jenkins arour.d. In fact, they preferred that Jenkins stay out of the lounge when they were in it. And they had not tried to hide their feelings on the subject from management. Finally, the record does not indicate that subsequent to the August 3 meet- ing Respondent ever disciplined any employee, prounion or otherwise, for using any area of the funeral home other than the lounge for relaxation. X. THE GENERAL COUNSEL'S IMPRESSION OF SURVEILLANCE CONTENTION The first decertification election was held on February 25, 1980. Four days prior to that election Goldberg got sS G.C. Exh. 4. 854 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC. into an argument with Ontko in the employee lounge. Employees Fanning and Reyer were also present. (The argument was over the medical coverage that Respond- ent provided to its employees: See sec. II, above.) Gold- berg broke off the argument, stormed out of the lounge, entered the funeral home's office (which is just down the hall from the lounge), and shouted something like: "I'm getting tired of all this shit. Pretty soon it will be all over." The General Counsel claims that, given the argument that had just taken place and that fact that the decertifi- cation election was coming up, Respondent's employees reasonably inferred from Goldberg's statement that: he knew how the employees would vote; he knew that a majority was going to vote against the Union; and he had concluded that he accordingly would soon not have to put up with complaints of the kind Ontko had just made about health insurance coverage. Respondent contends, on the other hand, that even as- suming that Goldberg did make the quoted comment, it was a mere prediction of the election's outcome. And since it was not accompanied by any remark or activity suggesting surveillance, it was entitled to the protection of Section 8(c) of the Act.34 It can be assumed that Respondent would have violat- ed the Act had Goldberg said that he soon would not have to put up with comments like Ontko's because he knew how each employee was going to vote and the ma- jority were going to vote for the Union's ouster.35 But Goldberg said nothing like that. Instead, in a fit of anger he made an ambiguous remark that at most amounted to a generalized prediction about the outcome of the elec- tion. At the time Goldberg made the remark Reyer be- lieved, reasonably albeit erroneously, that Goldberg was using electronic equipment to eavesdrop on the employ- ees. And soon thereafter Fanning and Ontko developed the same point of view. (See sec. II, above.) Moreover all three employees knew about Jenkins' activities as an informer. That background must be taken into account in evaluating the lawfulness of Goldberg's comment. None- theless I cannot conclude that the comment violated the Act: The comment was not addressed to the employees; it did not refer to the election; it contained no explicit reference to the views of the employees on union repre- sentation; it contained no reference to any surveillance by Respondent; and it is far from clear that the comment had anything to do with a possible ouster of the Union from the funeral home. In sum, the remark was not one that could reasonably tend to coerce employees in the exercise of their Section 7 rights. Xl. THE OBJECTIONS As touched on earlier, a decertification election among Respondent's employees was held on February 25, 1980. Local 639 filed objections to Respondent's preelection conduct (based on Respondent's electronic eavesdrop- ping) and a second decertification election was held on July 16, 1980. Local 639 again filed objections, and the 34 Goldberg denied making any such statement. But I credit Reyer. 35 See, e.g., Ste-Mel Signs. Inc., 246 NL.RB 1110 (1979) Board's Regional Director for Region 5 consolidated the decertification proceeding with the unfair labor practice cases that have been considered in the previous pages of this Decision. As discussed in section V of this Decision, during the period April through June 1980, Respondent's supervi- sors violated Section 8(a)(1) when they (1) asked Bur- chell about her position regarding unions; (2) advised her that Respondent's senior officer-Goldberg-was antiun- ion; (3) advised her to refrain from joining the Union; (4) asked her to report to management if prounion employ- ees were "harassing" her; and (5) linked the possibility of Respondent paying for Burchell's schooling to her an- tiunion position. Those violations involved but one em- ployee and were relatively modest in their coerciveness. On the other hand, they occurred during the critical preelection period (in this case February 25 through July 16, 1980: See The Singer Company. Wood Products Divi- sion, 161 NLRB 956, fn. 2 (1966)). And the bargaining unit is a small one, about I 11 employees. The Board's "normal policy is to direct a new election whenever an unfair labor practice occurs during the critical period."3 6 In fact, the "only recognized excep- tion to this policy is where the violations are such that it is virtually impossible to conclude that they could have affected the results of the election." 3 7 Under all the cir- cumstances, and particularly in view of the small size of the bargaining unit, I cannot find that Respondent's vio- lations of the Act did not affect the results of the elec- tion. I accordingly shall recommend that the July 16, 1980, election be set aside. CONCL USIONS OF LAW 1. Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(l) of the Act, by the following actions: (a) Covertly installing a microphone for the purpose of recording the conversations of its employees while they engaged in protected activity. (b) Interrogating an employee concerning her union sympathies. (c) Interrogating an employee concerning the protect- ed activities of other employees (viz, efforts by union members to convince the employee to join the Union). (d) Advising a newly hired employee that Respond- ent's chief executive officer opposed the unionization of its employees and further advising the employee to re- frain from joining the Union. (e) Giving an employee the impression that the votes in a Board-held election of individual employees were under Respondent's surveillance. (f) Expressing hostility to the prounion vote of an em- ployee. (g) Promising financial assistance (reimbursement of tuition costs) to an employee, conditioned on her refrain- ing from becoming a member of the Union. 36 Super Thrift Markers. Inc. t/a Enola Super Thrift, 233 NLRB 409 (1977) :'7 Id 855 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (h) Indicating that Respondent was going to treat an employee less favorably because the employee informed her Union and the Board of actions by Respondent that she deemed to be violative of the rights of Respondent's employees. 2. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) and Section 10(a) of the Act. 3. There has been no showing that Respondent violat- ed the Act in any other respect. 4. The unfair labor practices enumerated in paragraphs l(b), 1(c), l(d), and l(g) of this section interfered with the rights of Respondent's employees to a free and un- trammeled choice in the election conducted in Case 5- RD-681 on July 16, 1980, and have tainted the results of that election. THE REMEDY I shall recommend that: 1. Respondent be ordered to: (a) Cease and desist from engaging in the unfair labor practices referred to in section XII, above. (b) Post appropriate notices. 2. The Regional Director for Region 5 conduct a rerun election in Case 5--RD-681. ORDER3 8 The Respondent, Danzansky-Goldberg Memorial Chapels, Inc., Rockville, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Covertly recording, or attempting to record, the conversations of its employees when engaged in protect- ed activity. (b) Interrogating employees about their union sympa- thies. (c) Interrogating employees about the union activities of other employees. (d) Telling newly hired employees that management opposes unionization of its employees and advising such employees not to join the Union. (e) Giving employees the impression that Respondent has under its surveillance the votes in Board-held elec- tions of individual employees. (f) Expressing hostility to the prounion votes of em- ployees. (g) Promising future financial reward conditioned on an employee refraining from joining a union. (h) Indicating to employees that Respondent is going to treat an employee less favorably because the employee informed the Union or the Board of actions of Respond- ent the employee deemed violative of the employees' Section 7 rights. 38 This recommended Order is being issued pursuant to Sec. 10 (c) of the Act. 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. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which is nec- essary to effectuate the policies of the Act: (a) Post in its premises copies of the attached notice marked "Appendix." 3 9 Copies of this notice, on forms provided by the Regional Director for Region 5, after being signed by a representative of Respondent, shall be posted by Respondent immediately upon their receipt and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply with this Order. IT IS FURTHER ORDERED that the complaint be dis- missed in all other respects. IT IS FURTHER ORDERED that Case 5-RD-681 be re- manded to the Regional Director; that the election con- ducted in that case on July 16, 1980, be set aside; and that the Regional Director conduct a rerun election at such time as he deems that the circumstances will permit Respondent's employees to choose freely whether they want to decertify Drivers, Chauffeurs and Helpers Local Union 639 as their collective-bargaining representative. 39 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYH-S POSTED BY ORDER OF IHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and ordered us to post this notice. WE WILL NOT interrogate our employees con- cerning their union sympathies. WE WILL NOT interrogate our employees con- cerning the union activities of other employees. WE WILL NOT try to secretly record your con- versations when you are engaged in union or other protected activity. WE WILL NOT try to intimidate newly hired em- ployees about joining a union. WE WILL NOT give employees the impression that we are keeping track of how each employee voted in elections conducted by the National Labor Relations Board. 856 DANZANSKY-GOLDBERG MEMORIAL CHAPELS, INC. WE WIILL NOT express hostility to employees for voting in favor of a union. WE WILL NOl promise financial assistance to em- ployees conditioned on their remaining nonunion. WE WILL NOT threaten less favorable treatment of employees because they informed their Union or the National Labor Relations Board about actions by us that they feel violated their rights. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them in Sec- tion 7 of the National Labor Relations Act, includ- ing the right of employees: To engage in self-organization To form, join, or help a union To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any of these things. DANZANSKY-GOLDBERG MEMORIAI CHAP- ELS, INC. 857