Vegas Village Shopping Corp.

VEGAS VILLAGE SHOPPING CORP. Vegas Village Shopping Corporation and Retail Clerks Union, Local 1536, Chartered by the Retail Clerks International Association, AFL-CIO. Cases 31-CA-5721 and 31-RC-3222 April 26, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On November 12, 1976, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Union filed an answering brief and cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, briefs,' and cross-exceptions and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Order. Respondent advanced, inter alia, the following contentions in support of its exceptions: 1. Prior to the hearing in this proceeding, Re- spondent pursued Freedom of Information Act (FOIA) requests for the affidavits of all witnesses which were denied by Deputy Chief Administrative Law Judge James T. Barker and the Board, as well as by the Federal district court.2 These denials deprived Respondent of a fair hearing. 2. The clear preponderance of all the relevant evidence herein established that the credibility determinations of the Administrative Law Judge were erroneous. Illustrative of such error was his crediting of part of employee Dolores Stevens' testimony while at the same time discrediting other parts of her testimony. 3. The Administrative Law Judge found that George Raymond Williams, an assistant store man- ager, violated Section 8(a)(l) of the Act in September 1975 by asking employee Teresa Peterson whether she had signed a union authorization card. In so doing, the Administrative Law Judge erred because this allegation was not included in the complaint and it is further apparent that over 6 months had expired I Respondent's request for oral argument is denied as the record and the documents herein adequately present the issues and positions of the parties. 2 Vegas Village Shopping Corporation v. N.LR.B., 92 LRRM 2683 (D.C.Calif., April 26, 1976), appealed by Respondent to the United States Court of Appeals for the Ninth Circuit. 3 In support of this contention, Respondent cites Queen City Equipment 229 NLRB No. 40 from the time of the alleged statement to the time it was raised at the hearing.3 4. The Administrative Law Judge found that Respondent's unlawful preelection conduct was limited to the unit of selling and nonselling employ- ees in its seven stores. As said conduct did not extend to the unit of warehouse employees, the Administra- tive Law Judge erred in recommending that the election be set aside for that unit.4 For reasons given below, we find no merit in the foregoing contentions: 1. As noted above, Respondent appealed to the Court of Appeals for the Ninth Circuit the decision of the United States district court which held that the statements obtained by the Board in the investigation of possible unfair labor practices were exempt from production under FOIA. The record shows that thereafter the General Counsel and Respondent filed, and the circuit court granted, a joint motion to hold in abeyance Respondent's appeal until the circuit court handed down its decision in Harvey's Wagon Wheel v. N.L.R.B., No. 76-1355, which, like the instant proceeding, involved "the disclosability under FOIA of statements taken by Board investiga- tors in an unfair labor practice proceeding." On December 8, 1976, the circuit court decided in Harvey's Wagon Wheel, 93 LRRM 3068, 79 LC ¶ 11, 792, that the Federal district court properly held that employers against which unfair labor practice pro- ceedings are pending before the Board are not entitled under FOIA to disclosure of sworn employee statements obtained by Board agents because such statements fall under FOIA's exemption "for records compiled for law enforcement purposes." In view of the Board's policy on this issue as well as the circuit court's recent holding in Harvey's Wagon Wheel, supra, we find that Respondent was not entitled under the provisions of FOIA to copies of the affidavits of all witnesses prior to the hearing in the instant proceeding. 2. Contrary to Respondent, we find that the Administrative Law Judge was not required to discount everything employee Stevens said merely because he did not believe all of her testimony. For nothing is more common than to believe some and not all of a witness' testimony. 5 The Board will not overrule an Administrative Law Judge's credibility findings except where the clear Corporation, 211 NLRB 284 (1974), wherein the Board found it unnecessary to rule or rely on an 8(aXl1) finding which was not alleged in the complaint. I As indicated by the Administrative Law Judge. the Union lost the election which was conducted on October 16, 1975, for both units. 5 N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749 (C.A. 2. 1950). 279 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preponderance of all the relevant evidence convinces the Board that the findings are incorrect. 6 We have carefully examined the record and find no basis for reversing his findings. 3. Although there was no allegation in the complaint concerning the statement by Williams to Peterson, the Administrative Law Judge's 8(a)(1) finding with regard thereto was properly made because the matter was fully litigated at the hearing. As this unfair labor practice occurred less than 6 months prior to the filing of the charge herein, we find that it was not barred by Section 10(b) of the Act.7 4. The Administrative Law Judge properly found that Respondent engaged in the following conduct which not only violated Section 8(a)(1) of the Act but also precluded employees in the multistore and warehouse units from exercising their freedom of choice in selecting or rejecting the Union: interrogat- ed employees concerning union sympathies by asking if they signed union authorization cards and were wearing union insignia; threatened employees with loss of benefits, more onerous working condi- tions, and termination if they continued to support the Union; warned employees to stay away from union supporters and organizers; and instructed employees to wear antiunion insignia, to remove prounion insignia, and to deal directly with Respon- dent regarding working conditions rather than selecting the Union as their bargaining representa- tive. Although the foregoing unfair labor practices were directed only to employees in the stores, it is clear that Respondent's unlawful conduct would tend to discourage all employees in the Las Vegas area from voting for the same Union which was on the ballot for both units. As Respondent's unlawful conduct was likely to have a coercive impact on the employees in both units in the Las Vegas area, we agree with the Administrative Law Judge that new elections are necessary for both units so that they may be conducted free from any unlawful or objectionable conduct on the part of Respondent against the Retail Clerks or its adherents in both units.8 However, in the absence of any proof as to the Union's majority in either of the units, we find no merit in the Union's contention that a bargaining order is warranted for the employees in both units. 6 Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). 7 We find that Queen City Equipment Corp., supra, was improperly invoked by Respondent as the Board in that case found it unnecessary to pass on the 8(a)(l) finding and Respondent's opposition thereto. I Contrary to our dissenting colleague, we deem Food Fair Stores of Florida, Inc., 120 NLRB 1669 (1958), to be clearly distinguishable from the ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended; the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Vegas Village Shopping Corporation, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the elections conduct- ed in Case 31-RC-3222 on October 16, 1975, be, and they hereby are, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER WALTHER, dissenting: Although I agree with my colleagues that a second election must be directed in the unit of selling and nonselling employees, I disagree with their conclu- sion that a second election is also necessary in the separate and distinct warehouse unit. The record reveals that Respondent's unlawful threats and interrogations were directed exclusively at employees in the selling and nonselling unit. While such conduct clearly justifies setting aside the election in that unit, it does not necessarily justify setting aside the election in the warehouse unit which the Union lost by an 18-to-3 margin. My colleagues, however, summarily conclude that the warehouse election must also be set aside because "it is clear that Respondent's unlawful conduct would tend" to interfere with the warehouse election. The naked claim that a factual conclusion is "clear" of course does not necessarily make it so, and my colleagues offer nothing in support of their clairvoyance. My reading of the record yields no basis for concluding that the unlawful conduct in the selling and nonselling unit was apt or likely to interfere with the warehouse election. The warehouse operation is separate and distinct from Respondent's retail outlets. Nor is there any evidence pertaining to transfers or other contacts between the employees in the two units. In addition, the nature of the unlawful conduct is not such as would readily give rise to an inference that the statements made in one unit would be communicated to employees in the other unit. Respondent's antiunion campaign was not directed against the Retail Clerks in particular, nor against its officers or representatives, but rather against unioni- situation herein. Thus, that representation proceeding, unlike the instant consolidated unfair labor practice and representation proceeding, involved a different union for each of two units and the employer's coercive conduct was directed against only one of the unions and for the most part concentrated on promises of wage increases for the unit employees sought by that union. 280 VEGAS VILLAGE SHOPPING CORP. zation in general. Had the attack been directed against the Retail Clerks in particular, there might logically be some basis for concluding that the substance of Respondent's remarks would be tran- smitted to the warehouse unit. Such, however, is not the case. This is not the first time that the Board has addressed the issue raised herein. In Food Fair Stores of Florida, Inc., 120 NLRB 1669, 1673 (1958), separate elections were held in a unit of employees in the meat department on the one hand, and in a unit of apparel, drug, hardware, and snackbar employees on the other. Although Respondent's objectionable conduct occurred only in the meat department, the Regional Director recommended setting aside both elections. The Board reversed the Regional Director stating: [I]t can not be assumed that conduct which directly involved only meat department employ- ees and which interfered with their freedom of choice necessarily had the same effect on the employees in a different unit involved in a different election. Accordingly, in the absence of evidence that the conduct was directed against any such employees, we find there is insufficient grounds for setting aside the election in [the apparel, drug, hardware, and snack bar unit]. In my judgment, the instant case cannot meaning- fully be distinguished from Food Fair Stores. My colleagues, unpersuasively in my view, seek to distinguish Food Fair Stores on the basis that in that case two unions were involved, whereas here the same Union was seeking to represent the employees in both units. I fail to see any significance at all in this distinction, particularly in view of the fact that Respondent's campaign was not designed to estab- lish that the Retail Clerks, in contrast with a different labor organization, was unfit to represent the employees, nor do I see any meaningful distinction in the fact that the 8(aX)(l) conduct there took the form of unlawful promises while in the instant case it took the form of threats and interrogations. For the foregoing reasons, I do not agree with my colleagues' decision to set aside the election in the warehouse unit. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Las Vegas, Nevada, on September 14 and 15, 1976.1 The original complaint, issued on December IAll dates hereinafter are within 1975. unless stated to be otherwise. 2 General Counsel moved during heanng to withdraw the allegations set forth in pars. 6(e). (g). and (h) of the complaint. The motion was granted. 31, is based on an original charge filed on November 14 and an amended charge filed on December 29 by Retail Clerks Union, Local 1536, chartered by the Retail Clerks International Association, AFL-CIO, hereinafter referred to as the Union. On October 20 the Union filed objections to an election conducted on October 16 in Case 31-RC- 3222, involving the same parties as those herein. On February 3, 1976, the Regional Director for Region 31 of the National Labor Relations Board issued a supplemental decision on objections and an order of hearing wherein the aforesaid two cases were consolidated, since the issues were related and they involved the same evidence. On May 4, 1976, said Regional Director filed an amended complaint which alleges that Vegas Village Shopping Corporation, hereinafter referred to as Respondent, violated Section 8(a)(1) of the National Labor Relations Act, hereinafter referred to as the Act, as amended. Said two cases were heard at Las Vegas, as aforesaid. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel, Respondent, and the Union. Upon the entire record,2 and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Nevada, with an office and principal place of business located in Las Vegas, Nevada, where it is engaged in the retail grocery and department store business. In the course and conduct of its business operations, Respondent annually purchases and receives goods or services valued in excess of $50,000 directly from suppliers located outside the State of Nevada. In the course and conduct of its business operations, Respondent annually derives gross revenues in excess of $500,000. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local, 1536, chartered by the Retail Clerks International Association, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. I11. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent owns and operates seven stores and a warehouse in the Las Vegas area. Haber Tobler (Tobler) is, and since 1969 has been, Respondent's president, with 281 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corporate offices in Store 3. Stores 1, 3, and 4 encompass a department side and a grocery side. Stores 1, 3, and 4 have management teams each administered by a store manager. Each of those three stores has an assistant store manager for the department side and an assistant store manager for the grocery side. The assistant store manager for the department side of the three stores has seven supervisors, called department heads. Stores 5, 6, and 7 are small-clothing stores. Each has a store manager, with no assistant store manager or depart- ment head. Store 8, called Builder's Village, has a manager and an assistant manager, with no department heads. It sells builders' supplies. The warehouse has a manager. All stores and the warehouse have employees in addition to management personnel described above.3 The Union has represented the grocery clerks in Stores 1, 3, and 4 for several years, but the nongrocery clerks have not been represented. Commencing in February 1975 the Union began organizing all clerks (stores and warehouse) other than grocery clerks, acting primarily through Doris Low (Low), assisted by George Hartwell (Hartwell). Tobler was aware, in the summer of 1975, that the organizational campaign was being conducted, and in the early part of the campaign two meetings were held by him to inform managers and department heads about what they could and could not do and say during the campaign. Tobler attended one meeting, and was at the other meeting a few minutes. Prior to the meetings Tobler talked with Lynn Bunker (Bunker) of his staff, and Respondent's attorney, about what was to be discussed at the two meetings. The meetings were conducted by Bunker and attended by Respondent's attorney. In addition to the two meetings, Tobler and his staff frequently talked with managers and department heads on an informal basis about what they could and could not do and say. Tobler testified: "Of course, our people were informed that they could not interrogate people concerning how they felt or the way they were going to vote .... " The union election was conducted on October 16. Of approximately 262 eligible voters in the selling and nonselling unit, 244 cast ballots, of which 79 were for the Union and 134 were against the Union, with 31 challenged ballots. Of approximately 22 eligible voters in the ware- house unit, 22 cast ballots, of which 3 were for the Union and 18 were against the Union, with I challenged ballot. In each election the challenged ballots are not sufficient to affect the results of the election. The principal issues herein are whether Respondent violated Section 8(a)(1) of the Act, and interfered with the election by interrogations, threats, and other actions prior to and during the election of October 16. Each allegedly illegal action is discussed below. A. Alleged Statement of July 15 Paragraph 6(a) of the complaint alleges that, on or about July 15, Truman Barlow (Barlow), store manager of Store 3 Respondent did not deny in its answer, hence admits, that the following persons at times relevant herein were supervisors within the meaning of the Act; their participation herein is discussed in the text of this decision: Gary Pierce, Ray Williams, Bob Brown, Pauline Novak, John Gallifent, Betty 3, told an employee that no employees with union experience would be hired until the union campaign was completed. Glen Petersen (G. Petersen) testified that he was transferred from another store to Store 3 in early 1975, as a salesman on an hourly basis plus commissions. He said he periodically acted in the place of his supervisor, John Gallifent (Gallifent), for short periods of time. 4 G. Petersen said he was acting for Gallifent on July 15, while the latter was on a l-week vacation, and at or about 8 a.m. on that day Barlow paged all department managers by name, with instructions to come to his desk. Store problems and procedures were discussed, after which Barlow talked about the Union and encouraged the department managers "not to associate with the union people." G. Petersen then testified: The thing that shocked me a little bit was he went on a little bit farther to say that he had applications recently for employment and that all the applications he had received in the last week and a half, the week prior to this, had indicated that they had had union experience or had worked in a place where there had been a union, and considering the circumstances, he would not hire anyone with that type of background. The thing that kind of led into it, we were kind of shorthanded in some of the departments, and they needed some people hired. The comment he made, I recall vividly, was: "I don't care if we have to run with a skeleton crew; we won't hire anyone who has had previous union or has worked in a union place." G. Petersen's pretrial affidavit and his testimony on cross-examination varied somewhat from his testimony on direct examination. He stated on cross-examination, among other things, that he had the impression that Barlow felt the Union was "behind the applications" and that Barlow therefore was not going to hire those persons. Barlow testified that he has not been employed by Respondent since January 2, 1976. He said he regularly held meetings with supervisors when he was manager of Store 3, but he does not remember the conversation related by G. Petersen, although it was possible that personnel matters were discussed at the meeting to which G. Petersen referred. Barlow stated that employees never were hired in groups; that there was no discussion at supervisor meetings about hiring people with union affiliation; that he asked no applicant in July 1975 if that applicant was in favor of, or opposed to, a union; that store applications ask for an employment history but do not ask if the applicant is a union member; that he did not, in July 1975, go through the applications to see whether applicants had worked for companies that had union contracts; and that he never told G. Petersen he was not hiring people because they appeared to come from a unionized company or had previous union experience. Barlow testified that Store 3 was not shorthanded in July 1975. Westover, Truman Barlow, Bob Mangum, Glade Brinkerhoff, Madge Garrison, and Ed Van Bergen. 4 G. Petersen's employee status is discussed below. 282 VEGAS VILLAGE SHOPPING CORP. Discussion Respondent argues that G. Petersen was a supervisor at the time of this incident. However, the record shows otherwise. Barlow testified that G. Petersen was not a supervisor in July 1975, but that he "would come in to some of the supervisors' meetings" as a substitute. G. Petersen testified that, at the times relevant herein, he was a salaried salesmen and that he acted for Gallifent only to the extent of seeing that the department continued to perform while Gallifent temporarily was out of the store. G. Petersen stated he had no authority to hire or fire employees, to make transfers, or to set schedules, that he acted only in accordance with instructions left with him by Gallifent. G. Petersen's testimony on this point was not challenged or contradicted. It is found that G. Petersen was not a supervisor during July 1975. Approximately eight persons attended the July 15 meeting, including one rank-and-file employee other than G. Petersen (Nancy Beville). Barlow denied the statements attributed to him by G. Petersen. Nancy Beville was not called to testify, and no witness corroborated G. Petersen's testimony. The inherent improbability of the alleged statements is apparent. It is not normal business practice for employ- ment applications to show union affiliation or preference, nor is it normal for retail businesses to hire in groups especially in July. These abnormalities are highlighted by Barlow's credited testimony that the normal rush times are Christmas and just prior to school opening. Barlow also credibly testified that Store 3 was not shorthanded in July 1975. Further, G. Petersen testified that Barlow said the alleged applications originated with one employment agency - Snelling and Snelling - but Barlow credibly testified that he obtained employment applications from several agencies. Finally, there is the question of credibility. Barlow no longer works for Respondent, and he was an impressive witness. There is no apparent reason for him to color his statements, and his testimony was straightforward and given without hesitation. G. Petersen's testimony was not of that calibre. Admittedly he was a strong union advocate during July 1975. His testimony contains contradictions, and some of it is contrary to his pretrial affidavit. Based upon observation of the witnesses, their demeanor and the nature of their testimony, Barlow is credited. It is found that General Counsel did not prove this allegation. B. Alleged Interrogation by Novak Paragraph 6(b) of the complaint alleges that, in July 1975, Respondent's agent, Pauline Novak (Novak), interro- gated an employee concerning the Union. Elmira North (North) testified that, in July 1975, she talked about the Union with her then supervisor, Novak, at North's work station where she was a sales clerk in Store 4. North testified: 5 The date was amended at heanng upon General Counsel's motion, granted by the Administrative Law Judge. She had been to a meeting and she came over to me and she says, "I want to get this over with." She says, "What do you think about the Union," and I told her I was very happy where I was and that was the extent of the conversation. Discussion Novak did not testify. Respondent's witness Gary Pierce (Pierce), manager of Store 4, testified that he was informed Novak could not appear as a witness because of illness. Pierce also testified that he had informed Novak and other department managers in May that they were not to question employees about union matters. Determination of this allegation thus depends upon assessment of North's credibility. That credibility amply was demonstrated by North's appearance on the witness stand. She testified in a convincing manner, and was firm on cross-examination. Her testimony is credited. Assuming, arguendo, that Pierce gave instructions to Novak as he testified, there is no basis upon which to find that Novak would not, or could not, make the statement attributed to her. This is not an isolated, trivial piece of "shop-talk" as asserted by Respondent. Against the background of admitted management knowledge of union activity, and attempts by management to obtain a vote favorable to it, apparent throughout the record, it is clear: (a) Novak's statement illustrates management's efforts to obtain a favorable vote, and (b) Novak's statement prima facie is coercive. It is found that the record supports this allegation. C. Alleged Interrogation by Gallifent Paragraph 6(c) of the complaint 5 alleges that, on September 16, 1975, Gallifent interrogated an employee about his vote in the impending election. This allegation involves G. Petersen, who first testified that, on an uncertain date but "I know it is within three or four days of the election date" (note: the election was held on October 16), Gallifent was standing near Petersen and another employee, David Reese (Reese). According to G. Petersen, Gallifent turned to him and said, "Well, I guess I know which way you are going to vote on the election don't I," to which G. Petersen allegedly replied, "Well, maybe you do" or something similar; Gallifent said "Well, you are going to vote 'yes,' aren't you," and G. Petersen shook his head "yes." After being shown his affidavit, G. Petersen changed his testimony and said the conversation occurred on Septem- ber 16, and that he was alone with Gallifent. G. Petersen went on to explain that the first conversation he had reference to, when Reese was present, occurred "three or four days previous to the election," and that, before Gallifent questioned him, Gallifent asked Reese, "How are you going to vote on this union thing, Dave," to which Reese allegedly replied, "Well, you know how I feel, John," and at the same time nodded his head yes. 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later in his testimony G. Petersen said he "vividly" recalled the October 16 conversation attended by Gallifent, Reese, and Petersen. Discussion G. Petersen first having testified that he knew the alleged conversation occurred 3 or 4 days prior to October 16, the later change to September 16 casts doubt upon the conversation itself. That doubt is intensified by the fact that the alleged Petersen-Reese-Gallifent conversation, said to have taken place 3 or 4 days before the election, is not in G. Petersen's affidavit and is not the basis for any allegation in the complaint. Further, this latter testimony must be assessed against G. Petersen's testimony that he "vividly" recalled the Petersen-Reese-Gallifent conversa- tion. There is no question but what management knew, prior to and on September 16, that G. Petersen was one of the principal union organizers. Further, according to the testimony of employees of the snack bar, "vote yes" buttons were worn by most or all of the counter girls since August. Finally, G. Petersen testified that he wore a "vote yes" button from time to time and "probably" was wearing one during the alleged Petersen-Reese-Gallifent conversa- tion. Reasonably it may be inferred that, on September 16, either G. Petersen wore a "vote yes" button, or his views were well known to Gallifent. Under such circumstances, the alleged conversation of September 16 could not be considered coercive. 6 However, regardless of the nature of the alleged conversation, there is too much doubt about it ever having occurred to warrant finding a violation of the Act. That doubt is based upon the above summary, and the general lack of persuasion of G. Petersen's testimony, discussed elsewhere. It is found that this allegation is not supported by the record. D. Alleged Threat by Westover Paragraph 6(d) of the complaint alleges that, on or about August 29, Betty Westover (Westover) interrogated an employee about the Union and threatened loss of econom- ic benefits if the employee supported the Union. This allegation involves Ruth Beisser (Beisser), a clerk at Store 3, whose supervisor during the time relevant herein was Westover. Beisser testified that, on August 29, Westover came to her work station and the following conversation ensued: Ms. Westover came in and said to me the attorneys and management were going to have a meeting on Thursday, and management had told her to ask me how I felt about the Union question. "Are you for the Union or against the Union?" she asked me. I replied, "Betty, I don't believe you should ask a question like that. I am entitled to secret election." She said anyway, management wanted to know what you would lose if the Union got in. You would lose your discount; you would lose the pension plan; you would have a different health plan and you would no longer be able to go to Mr. Barlow, he was at that time the manager. You would no longer be able to ask Mr. Barlow for special favors such as a day off or change of schedule. Instead you would have to go to Glen Petersen. Q. Who is Glen Petersen? A. Yes, that is what I asked her. She said Glen Petersen is a clerk in the radio television department. She said, "Well, Glen has been promised that he will be the Union steward if the Union gets in." I said, "Betty, you know that simply isn't true." She said, "Well, anyway, I want you to know how much we have appreciated your work in the depart- ment; I think you have improved the jewelry section; we value your services." I replied that I thought she was a good supervisor; that I felt kindly towards management, but that I was keeping an open mind on this Union problem. Westover testified that she had been told by Barlow that she could not interrogate employees about union activity, and she denied the interrogation and threats attributed to her by Beisser. Discussion Westover's principal reliance for credit is based upon her contention that she had been instructed by management as outlined above, and that she had no authority to tell an employee that union success would result in loss of store purchase discounts. So far as management instructions are concerned, Westover said she received them a little more than a month, and probably 6 weeks, prior to the election. That date would be about September I or 16; the conversation is alleged to have taken place on August 29. Westover stated that, prior to receiving the instructions, there "wasn't too much" union activity. Finally, Westover acknowledged talking with Beisser about the Union. It seems entirely possible, therefore, that Westover received instructions from management after her talk with Beisser, and that she talked with Beisser during the time when the record shows the organizing campaign was heating up. However, whether she received such instructions is immaterial. Her statements, and not her instructions, are in issue. So far as her authority is concerned, the question is what Westover did or did not say, not whether she had actual authority to remove benefits. When she spoke as a supervisor within the scope of her duty, she spoke for management, even if the subject of her conversation was one for management decision. She had apparent authority to speak, and she did not say that she was only voicing her opinion. What she is alleged to have said constituted a threat. Beisser was a convincing witness who gave her testimony in a calm and dispassionate manner. She appeared sincere 6 Petersen presently is a department manager at Store 1. 284 VEGAS VILLAGE SHOPPING CORP. and truthful, and there is no apparent reason to doubt her statements. She is credited and, based on her testimony and the above summary, it is found that this allegation is proved. E. Alleged Interrogation by Novak Paragraph 6(f) of the complaint alleges that, in Septem- ber 1975, Novak interrogated an employee about her union activities. Violet Woehl (Woehl) is the employee involved in this allegation. Woehl, who still is employed by Respondent, was a clerk at Store 4 in 1975. Woehl testified that she talked with Novak, her supervisor, about union activities approximately the middle of November. Woehl testified she was at her work station when Novak approached her. Woehl stated: She asked about how I felt about the Union, and I told her no one had ever approached me from the Union except to sign a card, I really didn't care to discuss my view about the Union. Discussion Woehl was a sincere, calm witness who gave her testimony in a straightforward and convincing manner. She is credited. The situation concerning Novak's failure to testify, her instructions from management, and the nature of her remarks apply equally here, as in the situation discussed in paragraph B above. This allegation was proved by General Counsel. F. Alleged Warning by Gallifent Paragraph 6(i) of the complaint (as amended) alleges that, on or about September 1, Gallifent warned an employee to stay away from any employees supporting the Union and to stay away from union organizers. This allegation involves Teresa Petersen (T. Petersen), wife of G. Petersen. At the time involved herein her name was Teresa Tuck. She was employed at Store 3 as a clerk from September until December 1975. Her supervisor during the early part of her employment was Gallifent, and later was Jack Casler. T. Petersen testified that, when she applied for a job at Store 3, she first talked with Barlow, who then sent her to talk with Gallifent. She stated that, after a brief interview and a tour of the department, Gallifent took her into the back room, where the following conversation took place: He then said that as of right now they are bringing the Union people into the store; he said there will be some sitting at the snack bar; there was a good portion of the employees that did not want them in and he advised me at that time to try to stay away from them in the snack bar, around that vicinity. Now, the exact words - it's been a year ago; I really couldn't say the exact words. Although she was not on the payroll at the time of the conversation, T. Petersen was an applicant for employment and thus was an employee for the purposes of the Act. Q. As best you can remember, he told you to stay away? A. Yes, he told me the snack bar is where they would try to talk to me and that lasted maybe five minutes, six minutes. After the talk by Gallifent, T. Petersen was taken back to Barlow, who hired her starting the following day. Discussion Gallifent did not testify. Although possibly it could be argued that the warning allegedly given to T. Petersen was one not to use company time for union purposes, the record does not support such an argument. No rule against solicitation was shown, nor is the warning limited to work time. The record shows that the snack bar commonly is used by employees for coffee and meal breaks. It is apparent that the alleged warning was intended to keep T. Petersen from talking with union representatives, and that it is coercive per se. The only question, therefore, is whether T. Petersen's testimony is to be accepted. Based upon her appearance and demeanor as a witness, and absent any contradictory testimony, she is credited. 7 The record supports this allegation. G. Alleged Statement by Gallifent Paragraph 6(j) of the complaint alleges that, on or about September 2, Gallifent told an employee that working conditions would become more onerous if the employees selected the Union as their representative. This paragraph also involves T. Petersen, who testified that she talked with Gallifent at Store 3 the first day she worked for Respondent, on September 2. She said Gallifent pointed out "a few of the union representatives" and: And he says for me, it would be wise to stay away from them. I don't know if it was at this point where he said that it was a comfortable store, a good position to work in, everyone is really friendly, but as soon as they are in, there will no more be a one-to-one person; you will have to go through different channels as the total attitude would completely change. It would no longer be comfortable. Q. Did he clarify what he meant at all? A. Just that - that he didn't want it in and there were other people that felt the same way, they didn't want this uncomfortable feeling; they wanted a more family atmosphere. This is what they had. Q. He said the Union would change that? A. Yes. Discussion Gallifent did not testify, and T. Petersen is credited above. It is clear that this converstaion is a continuing attempt by Gallifent to influence a new employee through coercion and pressure, and to dissuade her from union activity. 285 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The allegation is proved. H. Alleged Threat by Williams Paragraph 6(k) alleges that, in September 1975, Williams threatened an employee with termination or more onerous working conditions if the Union were selected by the employees as their collective-bargaining representative. George Raymond Williams (Williams) is, and has been, assistant store manager of Store 3 at all times relevant herein. T. Petersen testified that Williams took her into the employees' lounge about 2 weeks after she started working, and talked with her in a private conversation. T. Petersen testified: Okay. He kept further asking me if I had talked to them, if I had signed the card, if I was going to vote no or how was I going to vote, and he kept stressing the point that I am now working in a comfortable situation, that if I do vote yes, or if it happens the Union goes in, he says it would not be your comfortable situation any more. T. Petersen testified that Williams took her aside during working hours on an occasion later in September, and: Yes, and Mr. Williams took me aside again and this was after, I believe, this was after I was on the check stand because it was showing that I was more turning to the Union side and I wasn't hiding it. And he took me aside and said, "I hope you know what you are doing." He told me that being with Glen - Q. Glen is your husband? A. My husband. At the time we were not married, and he told me that I shouldn't be with him, and he kept - he was upset with me because he had found out I had gone out. I had gone to lunch with a Union representative, and he had found out about it, and he suggested that I stop seeing these people because I was ruining my chances of promotion, you know. Williams testified that he frequently talked with employ- ees, including T. Petersen, and assisted in training store employees, but he denied T. Petersen's allegations and statements set forth above. Williams said he had no authority to state that T. Petersen could lose benefits and promotion opportunities if the Union got in, and that "management was instructed on what we could do and what we couldn't do." Discussion Resolution of this issue does not depend upon Williams' authority over benefits and promotions, nor upon manage- ' The complaint does not allege that Williams asked T. Petersen if she had signed a union authorization card, but T. Petersen testified that Williams did so question her, to which she replied no. She further testified: He had told me they had been pleased with my work, my performance, and that I was working with some great people and they were good to work with, and that if I had signed a card or continued supporting the Union, that the friends I had made would turn against ment instructions. The only question is whether Williams, as a supervisor, made the alleged statements to T. Petersen. Those statements clearly are coercive, if made. Based upon observation of the two witnesses and their demeanor on the stand, T. Petersen was the more convincing. It is recognized that she but recently married one of the principal union activists involved herein, and that she was engaged in a common cause with him and may have some bias; however, T. Petersen appeared straightforward and truthful, and there is no compelling basis upon which to doubt her testimony. She is credited, and it is found that this allegation is proved by the record.8 I. Alleged Interrogation and Instructions by Gallifent Paragraph 60) of the complaint alleges that, in Septem- ber and October, Gallifent interrogated an employee about her union sympathies and instructed her to wear a "vote no" badge. She testified that Gallifent asked her at least once each day how she was going to vote in the union election. T. Petersen also testified that the following incident occurred the latter part of September: Q. Mr. Gallifent - A. He came over; he handed me a red sticker that had "Vote No" on it. And he handed it to me. He said, "Here, I want you to wear this." I was busy and I stuck it into my pocket and I said, okay, and I went right back to what I was doing. I did not have it on and maybe an hour to an hour and a half later, he came back over and noticed I was not wearing my badge. And he said, "How come?" And I said, "I just haven't had time to put it on." He kept after me and I finally told him I had lost it, which I had, I had thrown it away. I told him I had lost it; he handed me another one. Discussion As discussed above, Gallifent did not testify and T. Petersen is credited. The activities of Gallifent outlined by T. Petersen are coercive and clearly contrary to the Act. This allegation is proved. J. Alleged Interrogation by Mangum Paragraph 6(m) of the complaint alleges that, in early October 1975, Mangum interrogated an employee about her proposed vote in the union election. This allegation involves Debra Price (Price), a counter girl at the snack bar of Store I during the period of time relevant herein. Price testified that, in late September 1975, she talked at the snack bar with Bob Mangum (Mangum), me, or I could no longer find interest in them; it would all around me just become miserable. Williams denied asking T. Petersen if she had signed a union authonza- tion card. This subject was fully litigated, and T. Petersen is credited. An 8(aX 1) violation by interrogation is found. 286 VEGAS VILLAGE SHOPPING CORP. store manager of the grocery side at Store 1. The snack bar is part of the grocery side of the store. Price testified: Well, at the time I was wearing a "vote yes" button and he saw it, and he said, "So you are voting for the union?" And I said, "Yes," I was. Q. Did he say anything after that? A. No. Q. How long did the whole conversation last? A. I'd say about 30 seconds. Mangum testified that he never asked Price prior to the election how she planned to vote in the union election. Discussion A credibility resolution on this issue is not necessary since the remark, even if made, could not have been coercive nor could it have been an interrogation about how Price planned to vote. It is clear from Price's testimony that Mangum's statement was no more than an observation of an obvious fact. Price was wearing a "vote yes" button at the time and manifestly did not feel any necessity to secrete her feelings. She could not be coerced at that point, and Mangum's remark showed that he recognized Price's display of the button in the manner she intended. She wanted everyone, including Mangum, to know how she felt. It is reasonable to infer that Price was pleased, rather than apprehensive, when Mangum acknowledged that he had received her message. Further, the record shows that Mangum said nothing prior to or after the conversation, and that the 30-second incident was wholly isolated in nature. Under such circumstances, Mangum's testimony that he did not ask Price how she planned to vote in the election is factual and is credited. Mangum's testimony that he did not recall seeing Price wearing a "vote yes" badge at the time of the incident is immaterial. First, he said he was not sure whether or not he saw the badge. Second, Price and other witnesses testified that all snack bar employees wore "vote yes" badges. Third, any doubt raised by this equivocal portion of Mangum's testimony must be resolved against Price, since she is the claimant and her claim is grounded upon her testimony that she was wearing the badge. The record does not support this allegation. K. Alleged Threat by Brinkerhoff Paragraph 6(n) of the complaint alleges that, in October 1975, Glade Brinkerhoff (Brinkerhoff) threatened an employee with changed working conditions should the Union be selected by the employees as their collective- bargaining representative. This allegation involves Price and Brinkerhoff, who was manager of the department side of Store I at times relevant herein. Price said she talked with Brinkerhoff at the snack bar after she had punched out on a date shortly prior to the election. Price stated: Somehow we got to talking about the election, and he said, "Just think about all the headaches you will have if the union gets in." And I said, "It couldn't be any worse than what it is now." He just shook his head and walked off. Q. Was anyone else present during this part of the conversation? A. No. Q. How long did this conversation last? A. No longer than a minute. Brinkerhoff testified: I don't recall talking to the snack bar employees at all about the union. Q. Not even during the course of a conversation? A. They were not under my jurisdiction. Q.. Do you remember saying anything to Miss Price about the headaches if the union got in or there would be a lot of headaches or anything like that? A. I don't even remember Debbie Price; I don't recall the conversation at all. On cross-examination Brinkerhoff testified about Price "I don't recall her at all." He also stated that he did not eat meals at the snack bar, but that "occasionally" he took breaks there. Discussion The circumstances under which this alleged incident took place do not instill confidence in Price's testimony. Brinkerhoff was manager of the department side of the store, with no authority over, or business relationship with, the snack bar. The conversation allegedly took place after the snack bar was closed at night, when ordinarily Brinkerhoff would not be there for any reason. Price only stated the conversation was with Brinkerhoff; she made no further identification, nor did she explain why she knew Brinkerhoff, or why Brinkerhoff was at the snack bar at such an unusual hour, after the counter was closed and chairs were being placed on top of the counter. Brinkerhoff was an impressive witness, who testified in a convincing manner and who is credited. He stated that he did not recall Price "at all," which is consistent with the record showing that Brinkerhoff had no managerial relationship with the snack bar. There is no apparent reason, nor can one be inferred from the evidence, why Brinkerhoff would come to the snack bar after it was closed to engage an employee he did not know and with whom he had no business relationship, in a conversation about the Union. The alleged incident is too inconsistent with normal conduct to be credited without corroboration. It is found that the evidence does not provide support for this allegation. L. Alleged Threat by Brinkerhoff Paragraph 6(o) of the complaint alleges that, sometime in September 1975, Brinkerhoff threatened an employee with trouble for supporting the Union. 287 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This allegation involves Dolores Stevens (Stevens), who at times relevant herein, worked as a counter girl at the snack bar of Store I. Stevens testified that, on a date she thinks was in September 1975, she was talking with Theresa Smith (Smith), a store employee, in the snack bar area. Stevens said she was talking about the Union and mentioned George Hartwell's name. When she said "He is a union representative," Brinkerhoff, who was passing by, walked up and stated "You are messing with trouble." Brinkerhoff then was paged and had to leave, after looking at Smith "kind of funny." Brinkerhoff said he knew Stevens and Smith, but he denied Stevens' allegation. He said he did not recall ever seeing Smith and Stevens talking together, nor did he recall Stevens ever talking about Hartwell. Q. Did you ever ask any employees why they were wearing a Vote Yes or Vote No button? A. Not to my knowledge, no. Q. Did you ever tell an employee to take the Vote Yes button off? A. No, sir, absolutely not. . * * Q. Did you ever tell Delores Stevens that you thought it was ridiculous for her wearing a Vote Yes badge? A. Absolutely not, no sir. Q. Did you ever ask her to take a badge off? A. No, sir. Discussion Smith was not called to testify. Stevens was not an impressive or convincing witness. Her testimony sometimes was confused and contradictory.9 Brinkerhoff had no business relationship with Stevens, and there is no apparent reason for him to be in the snack bar area during working time. Resolution of this issue is possible only by assessment of credibility. Based upon observation of the witnesses and their demeanor on the stand, in the absence of corrobora- tion of Stevens' testimony, and in view of the circumstanc- es of the alleged incident, Brinkerhoff is credited, and it is found that General Counsel did not meet his burden of proving this allegation. M. Alleged Instruction by Mangum to Remove a Prounion Badge Paragraph 6(p) of the complaint alleges that, in Septem- ber or October 1975, Mangum instructed an employee to remove a prounion badge. This allegation involves Stevens, who testified that, about a week before the election, Mangum came to the snack bar to eat lunch. Stevens said she was wearing her "vote yes" badge at the time, and she testified: He told me it was ridiculous for me to wear that because we weren't going to win anyway. I just looked at him and I fixed his hamburger and he asked me to take it off. Q. Did you take it off? A. No, I didn't. Q. Did he say anything else after that and during the rest of the meal? A. No. Mangum testified: Q. Did you ever ask her - do you recall if she was wearing a Vote Yes or Vote No button? A. I do not recall; I have given it a great deal of thought and I cannot recall seeing it either way. 9 For example, initially she said Brinkerhoff was "just passing by" at the time of the incident, and she later stated he had been standing there "but Discussion Mangum's area of responsibility during relevant times included the snack bar, which he frequently patronized and which he administered through a supervisor, Helen Lyons (Lyons). His presence at the snack bar and a conversation with Stevens would be consistent with his position in Store I. Respondent contends that all management personnel were instructed concerning what they could not do during the union organizational campaign, and argues therefrom that such personnel either could not or would not commit the violations ascribed to them. However, as pointed out above, that argument is not controlling. The only question is whether or not the statements were made as alleged. There is no corroboration for Stevens' testimony, hence a credibility choice is necessary. The testimony of both Stevens and Mangum leaves much to be desired; neither was totally convincing. However, in view of Mangum's position in the Company, the sharpness of the campaign, the obvious desire of Respondent to have a nonunion department store and snack bar operation, and based upon observation of the witnesses and their demeanor, Stevens is credited. Respondent argues that Mangum should be credited because he "took a demotion" before he testified and therefore "had a reason to 'get even' " with Respondent, if anyone did. However, this argument is invalid since, as Mangum testified, he "took a demotion . . . because I wanted more personal life of my own." It is found that the record supports this allegation. N. Alleged Threat by Garrison Paragraph 6(q) of the complaint alleges that, on or about October 2, Madge Garrison (Garrison who at times relevant herein was variety department manager at Store 1) instructed an employee to remove a prounion badge. This allegation also involves Stevens, who testified that, about a month or 6 weeks prior to the election, she was talking with Carol Jackson (Jackson), a fellow employee, near the cosmetics counter on the department side of the store. Stevens said she had gone over to see Jackson to talk about the Union, and the two of them started to go to the snack bar on Jackson's break. Stevens said Garrison, who not very long." Further, Stevens could not remember the words Brinkerhoff used. 288 VEGAS VILLAGE SHOPPING CORP. had heard some of her conversation with Jackson, and who was Jackson's supervisor, stated as Stevens and Jackson started to leave that, if Jackson voted for the Union or got involved with the Union, she was sure to be fired. Garrison denied that she ever told Jackson in Stevens' presence that, if the Union got in, Jackson was sure to be fired. Jackson did not testify. Discussion The situation in this instance is much like that in paragraph 6(p) above. Garrison was Jackson's supervisor, and part of the defense to this allegation is the contention that management's instruction precluded Garrison from making the alleged statement. Further, neither the testimo- ny of Stevens nor Garrison instilled a great amount of confidence, and Stevens' testimony was not corroborated. However, based upon the general situation at Store 1, outlined above, and upon observation of witnesses and their demeanor, Stevens is credited, and it is found that the allegation is proved. It appears most likely that Garrison made the statement attributed to her, or that she made some similar statement to Stevens and Jackson. The fact that the statement was directed to Jackson is immaterial, since Stevens heard the remark and Garrison represented management. The coercive effect of the statement would be as profound on Stevens as on Jackson. The defense relating to instructions is discussed above. O. Alleged Statement by Van Bergen Paragraph 6(r) alleges that, in late August 1975, Edward Van Bergen (Van Bergen, who at times relevant herein was supervisor of the sporting goods department of Store 3) instructed employees to deal with Respondent directly regarding work-related problems, rather than to select the Union as their bargaining representative. The employees involved in this allegation are Susan Turco (Turco, who was employed at times relevant herein as a snack bar counter girl at Store 3) and Mary Lou Jennings (Jennings, who at times relevant herein also was employed as a snack bar counter girl at Store 3). Both employees testified to incidents involving Van Bergen, alleged to have occurred in August and September 1975, at the snack bar. Turco testified that she and Van Bergen sat next to each other at the snack bar counter in September, and that the following occurred: Well, when he had come back to the snack bar I, fooling around, said, "What do you want?" He got a little mad and then he came over and apologized. Q. How do you mean he got mad? A. Well, he said, "Oh, you always say that when I come up here," something like that. But, you know, I was only fooling around. He came over to me and apologized and then he started to say something about you girls at the snack bar really do a 0O At the time involved herein Jennings was acting as manager of the snack bar on a temporary basis. There is no evidence of supervisory status, good job here and you should work out your differenc- es with management and not bring the union into it. So I didn't say anything, I just sat there and listened. Turco said Van Bergen made the same general statement "about three times," rephrasing it differently each time, but meaning the same thing. Jennings 0 testified that Van Bergen came to the snack bar in August, as he usually did on his breaks and at meal time, and that she was wearing a "vote yes" badge at the time. She stated: He said, "Don't you think you girls would be better off speaking to the company and trying to work out your problem that way instead of going to the union?" I told him I didn't speak about the union while I was working. Q. Then what did he say? A. He said, "Well, the union is no good, anyway." Van Bergen testified that he went to the snack bar on break and for lunch "quite often," but that he did not remember Jennings or Turco. He testified that he talked with employees of the snack bar about the Union on one occasion. He stated: Q. Did you talk with the employees at the snack bar? A. One time I did, and I don't recall whether it was any of these people that you mentioned, but they were all wearing their little badges, Vote Yes, and I didn't say why are you wearing it or anything. We just got in a conversation, and they told me, they said, well, we are unhappy with this and with that in general; one of them, not all of them. And I said, what are you unhappy about, why don't you talk to your bosses. Go talk to them, see what they say and use your own mind. I said, you are wearing that button and you have got a right to wear it, wear it all you want, think nothing of it, but if you have got something that is bothering you, go talk to your immediate boss, supervisor. Q. Do you remember how the conversation start- ed? Did you start it? A. No, I think it was somebody else, just one of those little bull sessions that you get into that you can't say how it started or how it ended; you just can't put your finger on it. Van Bergen also said he had been instructed by manage- ment relative to what supervisors could and could not do during the campaign, and that he followed those instruc- tions "to the letter." Discussion Turco and Jennings gave the impression of being sincere, truthful witnesses. Their appearance and demeanor on the and it is found that Jennings was a rank-and-file employee at the time of this incident. 289 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stand were impressive and instilled confidence in their testimony. They are credited. The statements made by Van Bergen were made in the midst of a union campaign and were addressed to employees on duty. Although Van Bergen was not their supervisor, he was a known supervisor and he frequently took his breaks and lunch periods at the snack bar. His statements clearly were an attempt to undercut the Union by encouraging employees to deal directly with manage- ment, and they were coercive by reason of his position as well as by the nature of the remarks. The fact that he had been instructed by management relative to union activity is immaterial, as discussed above. This allegation is supported by the evidence. P. Alleged Interrogation by Williams Paragraph 6(s) of the complaint alleges that, in Septem- ber or October 1975, Williams asked an employee why she was wearing union insignia. The employee referred to in this allegation is Judy Boyer (Boyer), a snack bar counter girl at Store 3 during the time relevant herein. Boyer testified that she talked with Williams in August 1975 when Williams was eating at the snack bar. She stated: We were talking. He come up and asked me, "Why are you wearing the 'vote yes' button?" And I didn't answer him. I just said, "Why are you wearing the 'no' button?" And he didn't answer me. Q. Was he wearing a "vote no" button? A. Uh-huh. JUDGE STEVENS: Answer yes or no, please. THE WITNESS: Yes. Williams testified: Q. During the course before the union election, were some of the employees in the snack bar wearing Vote Yes buttons? Do you recall? A. I think most or some of the gals or men, either one, were wearing union Vote Yes buttons. Q. Did you ever ask any individual why he or she might have been wearing a Vote Yes button? A. I don't know. Here again, I would have no reason to be asking unless I wasjust curious. Discussion Williams did not deny the alleged statement; he only stated "I don't know" when asked if he made it. Based on Boyer's appearance and demeanor on the stand, she is credited. The only question is whether the statement was coercive. The question was asked at the height of the union campaign, by a person known to Boyer as a supervisor. Although no conversation followed the question, Boyer had no way to know that before the fact and, further, the question being propounded by a representative of manage- " Electrical Wheel Company, Division of The Firestone Tire & Rubber Company, 120 NLRB 1644, 1646(1958). 12 Larkwood Farms, a Division of the Pillsbury Company, 178 NLRB 226 (1969). ment, it had to be considered a challenge. The remark was not an idle observation, nor was it made in a joking manner. The belligerency apparent in such circumstances was coercive, and this allegation is proved. Objections to the Election I. Objection I states: The Employer performed acts of coercion and duress upon voting employees. In view of the findings herein, it is found that the conclusions stated in this objection are supported by the evidence. 2. Objection 2 was withdrawn. 3. Objection 3 states: The Employer allowed certain employees, supervisors and managers, to wear information on buttons worn during voting hours. Said buttons told employees not to vote for the union. Primarily involved in this objection is conduct testified to by G. Petersen, a union observer at the election. He stated that six employees from the accounting office voted in the election and that each of those employees had a handwrit- ten document pinned on his back displayed while voting. The document was entitled "My Reason for Voting No" and contained a short statement. Petersen testified that he was able to read the signs from his station as an observer, and that the print was large enough to be read throughout the polling room. He also testified that at the bottom of each document were the words "Vote No." There is no evidence that any observer or any other person objected to the signs at the time of the voting nor is there any evidence that Respondent made the signs or knew anything about them in advance of the voting. Generally, the wearing at polls by observers of buttons or other insignia bearing the name of a union is not prejudicial to the fair conduct of an election." The impact on voters is not materially different whether the observers wear prounion or antiunion insignia. 12 Further, an employ- er may not unduly restrict permissible union activity during the critical 24-hour period prior to the election.13 Factual situations differ in many instances. In McKibbon Brothers, Inc., d/b/a Mar-Jack Poultry Company, 123 NLRB 1571 (1959), the employer closed down its opera- tions one-half hour before voting on election day, and some employees walked around the plant at such time wearing handmade paper hats lettered with words "Vote No." An objection to the election on this ground was found to be without merit. In Delaware Mills, Inc., 123 NLRB 943 (1959), an employee, whose vote had been challenged, was required to sit at the polling place. She wore a coat, which was unbuttoned, revealing a T-shirt which bore the printed letters "IWUA," and on her coat she wore a button with words "Vote Yes." An objection primarily based on this behavior was overruled, the Board finding that her 13 Gamble-Skogmo, Inc., d/b/a Tempo Discount Center, 226 NLRB 40 (1976). 290 VEGAS VILLAGE SHOPPING CORP. presence, "even if she in fact waved and smiled at the voters," did not tend to so influence the voters as to warrant setting aside the election. In Sewanee Coal Operators' Association, Inc., 146 NLRB 1145, 1147 (1964), the Board held that the presence of a crowd or a massing of voters at the entrance to the polling place and placard- electioneering by unidentified persons on behalf of a union in the area outside the polls, standing alone, did not impair the exercise of free choice in the election. The wearing of T- shirts by union observers, bearing the union name and emblem in such a manner as to be visible to the voters, and the congregating of persons in an area of the polls during the election wearing the same type shirts were raised by way of objection in R. H. Osbrink Manufacturing Company, 114 NLRB 940 (1955), but found without merit. The Board has consistently held that wearing stickers, buttons, and similar campaign insignia by participants as well as observers at an election is, without more, not prejudicial. See also Furniture City Upholstery Company, 115 NLRB 1433(1956). A distinction must be drawn between the situation involved in the above cases and one in which the employer makes badges or other campaign insignia available to employees. Illustrative of the latter is Macklanburg-Duncan Compa- ny, 179 NLRB 848 (1969), where the employer not only utilized its supervisory personnel in furtherance of its campaign by having them wear buttons and T-shirts displaying proemployer and antiunion propaganda, but intended via the supervisors to make the antiunion materials readily available to employees who, by electing whether or not to wear them, would disclose their respective choices. The Board found such tactics consti- tuted unlawful interference with the election. See also Garland Knitting Mills of Beaufort, South Carolina, Inc., 170 NLRB 821 (1968), enfd. in material part 414 F.2d 1214 (C.A.D.C., 1969); The Chas. V. Weise Co., 133 NLRB 765 (1961). It appears, therefore, that the only distinction between this case and those wherein the Board has found that the wearing of insignia at the polling place is not objectionable is that here, the reason for the six employees' "no" vote was spelled out on the signs in a short statement. There is no apparent reason to consider the short statements on the signs to be any more forceful or persuasive than the message "vote no," which clearly is allowable in the voting area. Of interest is G. Petersen's reaction to the signs. He testified "... I thought it was kind of humorous at the time then." It is found that this objection is without merit. 4. Objection 4 states: The Employer informed the employees that certain benefits would be eliminated if the Union won the election; namely, employee discounts and insurance. This allegation is also made in paragraph 6(d) of the complaint, discussed above. It was found that Westover threatened Beisser with loss of benefits, thus any remedy recommended for this Objection 4 is embodied in the remedy for the 8(a)(1) violations found herein, and for objection 1. Apparently this objection refers to alleged statements by Tobler, in addition to those of Westover. Tobler testified that employees in the department side of the stores are given discounts on the purchase of merchandise, amount- ing to 10 percent after 6 months of employment, with increases thereafter to a maximum of 20 percent after 2 years. Grocery rank-and-file employees receive no dis- count. Respondent has other benefits for employees, including vacations, holidays, pensions, and insurance. G. Petersen testified that, at a meeting for employees held by Tobler on October 10, Tobler discussed benefits. G. Petersen testified: He said the discount privilege was something they had given to the nonunion employees and pointed out that the grocery or union people did not have it, and that as far as he knew, no union had ever negotiated for a discount privilege. At that time I confronted him and - no, he went on further. He said that under a union contract, we would lose that benefit. He said - I am trying to think of more or less the exact words - that it had never been negotiated; it wouldn't be negotiated, and the employ- ees would lose their discount. Q. Excuse me. Did you say employees would lose their discount? A. Yes. He did say that, prefaced by under a union arrangement or union contract, we would lose the discount. Q. Did he say anything about insurance benefits as to what might or might not happen to them? A. He discussed the differences only, as I recall, in major medical in regards to the limit of the coverage of one over the other, but I don't recall anything specific. G. Petersen explained his testimony after reading his pretrial affidavit, and stated: On review of that paragraph, what took place was on this blackboard side by side comparison, on base of that, I raised the question of whether we would lose our discount privilege, and he said it had never been negotiated, a union had never negotiated it and it would not be negotiated. Q. Did Mr. Tobler at this meeting say anything about group medical insurance? A. Yes. He was quite proud of it, said it was one of the best any company offered in the industry or in any industry, and that we would be losing these benefits if we voted in favor of the union. On cross-examination G. Petersen stated: Q. Now, turning your attention to Mr. Tobler's meeting where you asked the question, the middle part of October 1975, isn't it true that Mr. Tobler said the union doesn't bargain for employee discounts? A. That was what he said. It was not a negotiable matter. Q. They would rather negotiate for other terms and conditions for employees, higher wages, for instance? 291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Basically, yes. Q. And this is what he said was his belief what the union would do? A. Exactly. Q. And from your experience in the supermarket end of the business, for lack of better words, those employees don't have the employee discount under their collective-bargaining agreement? A. That's correct. If the people selected the union as the representative of the employees in the department-store side, isn't it accurate to say that Mr. Tobler, during the meeting, said whatever benefits you would get through a union contract would have to be negotiated between the union and the company? A. To my knowledge, something of that nature was said; specifically what, I can't put into words. Q. Something of the knowledge that everything is up on the bargaining table and you have to bargain for what you get? A. Yes. Q. Did he ever say that if the union won the election that the company would refuse to bargain with the union? A. No. Relative to insurance, G. Petersen testified: Q. Now, what did he say, not what you thought he was trying to get across. A. The insurance program the company had offered would not be the one negotiated, that the benefits negotiated - no, that is not his exact words. Q. Did he say that the union would negotiate for their own insurance plan? A. Yes. Q. So that the union wouldn't want to negotiate the company's insurance plan because they had one of their own? A. Yes. That would be correct. Q. But he didn't say that if the union wanted to accept the company's insurance plan that he wouldn't allow it to be accepted? A. I don't recall whether he said anything of that nature or not. Tobler testified that discounts and other benefits were discussed in all group meetings with employees. He stated: Q. What did you generally respond at these meetings if the question was asked? A. My reply was at this time no one, ourselves or the union, could tell them what the wage would be or benefits would be, that they would have to be negotiated at such time; or if it occurred that the union was voted in as a representative body. I did indicate to them the Retail Clerks had not as yet made that a negotiable item in their contract on the other side of the store. Q. The other side being the grocery side? A. The grocery side. It had never been made an item of negotiation on the super market side; I did indicate that to them. Q. At any time during the course of the campaign, did you ever tell any employee that if the union won, you were not going to negotiate with the union regarding company discount? A. Heavens, no, I didn't. Q. Is it fair to say that you, in response or while you were talking, said, if the union comes in, you don't have any benefits until something is negotiated? A. No, that isn't what I said. I said the employees would naturally continue to enjoy everything they had until such point as the new contract was signed, if that did come about, naturally they would have the benefits they enjoy until such time as the contract would be negotiated. Discussion It is seen from the foregoing that G. Petersen corrobo- rates Tobler on several points in the latter's testimony. Based upon observation of the witnesses and their demeanor, Tobler is credited to the extent that his testimony differs from that of G. Petersen, and it is found that this objection is without merit to the extent that it involves Tobler. It is clear that Tobler made no threat during the group employee meeting testified to by G. Petersen, and that Tobler did no more than to state that, if the Union got in, all points of a contract would have to be negotiated. IV. REQUESTED BARGAINING ORDER In his brief, counsel for the Charging Party requests a bargaining order "because the Union lost its majority status as a result of unfair labor practices of the Employer" that were coercive and pervasive. The Supreme Court observed in Gisse114 that, in exceptional cases marked by outrageous and pervasive unfair labor practices, a bargaining order may be the only effective remedy. However, under Board law a bargaining order must be predicated upon majority status.'5 In this case the election involved employees of seven stores and a warehouse. Unfair labor practices have been found in only three stores. The Union lost the election by a substantial number of votes; i.e., 134 to 79, with 31 challenged ballots from a total of 262 eligible voters in one unit, and 18 to 3 with I challenged ballot from a total of 22 eligible voters in the warehouse unit. The unfair labor practices alleged and found consist entirely of 8(aX1) violations, none or all of which can be considered "outrageous." Thus, this is not an "exceptional" case, since the unfair labor practices are neither outrageous nor pervasive. More important, a union majority not having been shown to exist 14 N.L. R B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 292 15 The Contract Knitter, Inc., 220 NLRB 558 (1975). VEGAS VILLAGE SHOPPING CORP. at any time relevant herein, a bargaining order is not appropriate. V. OBJECTIONS TO THE ELECTION Certain of Respondent's conduct, discussed above, occurred during the critical preelection period and preclud- ed employees from exercising their freedom of choice in selecting or rejecting the Union. That conduct constitutes substantial interference with the election. Even though some conduct may have been outside the critical period, it is considered to show Respondent's motives and intent. I shall, therefore, recommend that the election of October 16 in Case 31-RC-3222 be set aside and that the case be remanded to the Regional Director for Region 31 for the purpose of conducting a new election at such time as he feels the circumstances permit the free choice of a bargaining representative. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(aXI) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom and, from any other manner, infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectuate policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. Vegas Village Shopping Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 1536, chartered by the Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively threatening, warning, interrogating, and instructing employees concerning their union activi- ties, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. '6 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. 4. Respondent did not, through alleged conduct, violate Section 8(aX)() of the Act in any manner other than found therein. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 The Respondent, Vegas Village Shopping Corporation, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Coercively threatening, warning, interrogating, and instructing employees concerning their union activities, specifically as follows: (1) Interrogating employees concerning their union sympathies and activities, asking employees if they have signed union authorization cards, and asking employees why they are wearing union insignia. (2) Threatening employees with loss of benefits, more onerous working conditions, and termination if they continue to support the Union or if the Union is selected as the exclusive-bargaining representative of the employees. (3) Warning employees to stay away from union supporters and union organizers. (4) Instructing employees to wear antiunion insignia, to remove prounion insignia, and to deal directly with Respondent regarding working conditions rather than selecting a union as their bargaining representative. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed to them under Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its seven Las Vegas, Nevada, stores and warehouse, described herein, copies of the attached notice marked "Appendix."17 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's authorized representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed to the extent that it alleges violations other than those found herein. '7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 293 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER RECOMMENDED that the election conducted on October 16, 1975, in Case 31-RC-3222 be set aside and that said case be remanded to the Regional Director for Region 31 to conduct a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to carry out the Order of the Board and to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through representa- tives of their choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT coercively threaten, interrogate, warn, and instruct employees in order to discourage member- ship in or activities on behalf of Retail Clerks Union, Local 1536, chartered by the Retail Clerks Internation- al Association, AFL-CIO, or any other labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. VEGAS VILLAGE SHOPPING CORPORATION 294