Raley's

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 25 382 Raley’s and Independent Drug Clerks Association Raley’s (United Wholesalers & Retailers Union, Party to the Contract) and United Food and Commer- cial Workers Union, Local 588, United Food and Commercial Workers International Union1 United Wholesalers & Retailers Union (Raley’s) and Chris Zicarelli and United Food and Commer- cial Workers Union, Local 588, United Food and Commercial Workers International Union and Thomas Moore. Cases 20–CA–24973, 20–CA– 25354, 20–CA–25649, 20–CA–26294, 20–CB– 9623, 20–CB–9742, and 20–CB–9932 September 29, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW On November 29, 2000, Administrative Law Judge Timothy D. Nelson issued the attached decision. The General Counsel and Charging Party United Food and Commercial Workers Union, Local 588 (Local 588) filed exceptions and supporting briefs; and Respondents Raley’s and United Wholesalers & Retailers Union (UWRU) filed cross-exceptions and supporting briefs. All parties also filed responding briefs to the opposing exceptions and reply briefs in support of their own ex- ceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 1 We have amended the caption to reflect the disaffiliation of the United Food and Commercial Workers International Union from the AFL–CIO effective July 29, 2005. 2 The General Counsel and Local 588 have, in essence, excepted to some of the judge’s credibility findings. The Board’s established pol- icy is not to overrule an administrative law judge’s credibility resolu- tions unless the clear preponderance of all the relevant evidence con- vinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care- fully examined the record and find no basis for reversing the findings. In addition, Local 588 contends that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examina- tion of the judge’s decision and the entire record, we are satisfied that this contention is without merit. However, we do not rely on the judge’s negative characterizations of some of the General Counsel’s and Local 588’s arguments. We also do not rely on other comments by the judge which are not necessary to his decision. For example, we do not rely on his statement that the Sec. 7 right of employees to circulate union petitions or other literature in areas of the workplace “has no presumptive application to an em- ployee’s cooptation of the employer’s internal communications media (fax machines, in this case) to transmit such materials to their co- As explained more fully below, we adopt the judge’s findings that (1) specific actions by Raley’s at some of its individual stores in September 1993 did not unlawfully assist UWRU, an independent union then named United Drug Center Employees Association (UDCEA);4 (2) Raley’s did not unlawfully assist UDCEA in September 19935 in obtaining a unit majority of signatures from Raley’s drug clerks authorizing UDCEA to represent them, and did not unlawfully recognize UDCEA;6 and (3) Raley’s and UDCEA lawfully entered into a collec- tive-bargaining relationship and enforced UDCEA’s dues-paying requirements.7 Finally, we adopt the judge’s findings that the Respondents are not entitled to attorney fees from the General Counsel. I. BACKGROUND A. Events Preceding the Formation of UDCEA The underlying dispute in this case, as limited by the parties’ exceptions, was the competition between Local 588 and UDCEA for the right to replace the Independent Drug Clerks Association (IDCA) as the bargaining repre- sentative for the drug clerks who worked in the pharmacy departments of Raley’s stores, after IDCA disclaimed in- terest in that representation on September 14, 1993. By 1992, Local 588 represented the grocery employees in separate bargaining units at most of Raley’s stores. Beginning in October 1992, almost a year before the IDCA disclaimer, IDCA’s president, Gilbert Eidam, en- tered into an alliance with Local 588 whereby Local 588’s staff began to participate in IDCA’s negotiations with Raley’s for a new contract. At around that time, Local 588’s staff also attempted to make in-store contact with IDCA-represented drug clerks at many of Raley’s stores. On several occasions those attempts resulted in confrontations with store managers and the ejection of workers.” That statement implicates issues that are currently pending before the Board. 3 With respect to the introductory section of the remedial notice, we will substitute new language in accordance with our decision in Ishi- kawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). With respect to actions by Raley’s that the judge found lawful, as discussed below, we reject his recommended supplementary notice language and will substitute a new notice. 4 At the time of nearly all the events concerning UWRU at issue, the Respondent Union went by the name of UDCEA. (As recounted in the judge’s decision, UDCEA changed its name to UWRU in October 1993.) For consistency, we henceforth refer to the Respondent Union as UDCEA except when addressing later events, as did the judge. 5 All subsequent dates refer to 1993, unless otherwise noted. 6 As discussed below, the judge found that in September 1993 Raley’s violated Sec. 8(a)(1) in only a few comparatively isolated in- stances at its stores in Fair Oaks and Placerville. Raley’s does not except to these findings. 7 We also adopt the judge’s dismissal of the allegation that Raley’s unlawfully assisted UDCEA when Henry Telfeian, its former counsel, became counsel to UDCEA with respect to certain matters. RALEY’S 383 Local 588’s staff from stores.8 IDCA-represented drug clerks were divided on the subject of Local 588’s in- volvement, with some strongly favoring it and others, including Edwin (Ed) Wright, opposed. This internal division continued over the following year while IDCA, with Local 588’s assistance, continued to try to reach a new agreement with Raley’s. On September 14, 1993, having failed to reach agree- ment on a new contract, IDCA President Eidam sent a letter to Raley’s management disclaiming IDCA’s inter- est in representing the drug clerks, “effective immedi- ately.”9 The following day, immediately upon learning of the disclaimer, Ed Wright, one of the leaders of the faction opposed to Local 588’s ongoing involvement in the unit’s representation, decided to organize another independent union for the drug clerks and seek recogni- tion on its behalf from Raley’s as IDCA’s successor. As the judge found, Wright called Raley’s management to inform it of his intention, and was told that Raley’s “would recognize the new organization if it could secure evidence of support from a majority of the drug clerks.”10 8 In addition to the allegations cited above, the final amended con- solidated complaint alleged that Raley’s violated Sec. 8(a)(1), (3), and (5) with respect to Local 588 and IDCA President Eidam during late 1992 and early 1993. The judge found only one violation based on these allegations: that Raley’s gave Eidam an unlawful disciplinary warning on April 6, 1993, in violation of Sec. 8(a)(3). Raley’s does not except to that finding. The General Counsel does not except to the judge’s dismissal of the other allegations pertaining to events in late 1992 and early 1993. Local 588 similarly does not except to those dismissals, except with respect to a memo Raley’s issued to its drug clerks on October 23, 1992, expressing its disapproval of Local 588’s involvement with IDCA. We agree with the judge, for the reasons he states, that this memo was not unlawfully coercive. In Member Liebman’s view, there is some tension between the Board’s finding that Raley’s memo to employees of October 23, 1992, was not unlawful and the decision in Armored Transport, Inc., 339 NLRB 374 (2003), and her partial dissent in Alan Ritchey, Inc., 346 NLRB No. 26 (2006). However, because the complaint does not allege that the memo intruded into a union’s internal affairs in violation of Sec. 8(a)(2), nor does Local 588 make that argument, Member Liebman reluctantly joins in the dismissal of the allegation that the memo vio- lated Sec. 8(a)(1). 9 Although the issue of Eidam’s authority to make this disclaimer on behalf of IDCA was disputed at the hearing, there is no dispute that the disclaimer was effective. 10 On September 16, the day after receiving Eidam’s letter of dis- claimer, Raley’s management circulated an internal memo to its store managers emphasizing that “Local #588 members and agents have no right to interfere with Drug Center employees while on duty,” and that “Local #588 Business Agents or Organizers have no right to visit with our Drug Center employees” or “[to have] access to our break rooms or back room.” The memo also stated that “Raley’s has been approached by a group of Raley’s Drug employees who want to represent the Drug Center employees in their own union. . . . That group has the right to demand recognition from Raley’s, [but w]e have to be convinced that they have a majority of the Drug Center employees before we recog- nize them.” We agree with the judge, for his stated reasons, that this With this goal, Wright—who was then on disability leave—had petitions printed in the name of UDCEA and began an outreach campaign to the drug clerks at Raley’s stores. B. UDCEA’s Campaign and Raley’s’ Recognition of UDCEA Over the 9-day period from September 15 to 23, Wright and the drug clerks allied with him engaged in intensive activity to secure employee signatures on the UDCEA petition. Much of this activity occurred at Raley’s stores, including those in Grass Valley (where Wright was employed), Benicia, Fair Oaks, and Placer- ville. As discussed below, this campaign activity in- volved in-store visits, telephone calls to other stores, and the faxing of copies of the petition to employee support- ers, often using Raley’s telephones and fax machines. Some of this activity also occurred on employees’ work- time. Meanwhile, in contrast to UDCEA’s aggressive cam- paign, Local 588 did little or no solicitation of employee signatures by person-to-person contact before Raley’s recognized UDCEA on September 23. Local 588 did send a mass mailing of literature with enclosed authori- zation cards to unit employees on September 17, but it engaged in almost no other organizing activity during this period until September 20, when its organizers were instructed to visit the stores, distribute cards, and mobi- lize support among employees. The judge found, how- ever, that from the time of Eidam’s disclaimer on Sep- tember 14 until September 23, a number of drug clerks who favored Local 588 engaged in concerted activity on its behalf and against the UDCEA campaign on their worktime, in almost all cases without interference from Raley’s management. As they gathered signatures, Wright and his allies for- warded their UDCEA petitions to Raley’s management, usually by fax. On September 23, Wright sent a letter to Raley’s management declaring that UDCEA had submit- ted signatures from more than a majority of the former IDCA-represented bargaining unit and demanding rec- ognition. Raley’s management responded later that day with a letter to Wright recognizing UDCEA. The judge ultimately found that UDCEA had submitted 355 valid signatures out of a unit of 673 employees—18 more sig- natures than required for a majority.11 On October 24, memo’s references to “members” of Local 588 did not include Raley’s employees and did not convey an unlawful instruction to assist UDCEA’s campaign. 11 In calculating the total number of employees in the unit, Raley’s did not include six employees at a new store in Elk Grove that had not yet opened. Raley’s also counted five petition signatures from other stores, which Local 588 contends were invalid. We adopt the judge’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384 1993, UDCEA (by that time renamed UWRU) and Raley’s entered into a 3-year contract for the drug clerks.12 II. ALLEGED MISCONDUCT AT INDIVIDUAL STORES Raley’s’ alleged misconduct at the Grass Valley and Benicia stores is the only basis on which the General Counsel contends, on exceptions, that unlawful actions tainted UDCEA’s majority showing. Local 588, how- ever, appears to contend that these and other actions by Raley’s, in their totality, effected a generalized taint of UDCEA’s majority showing extending beyond the 35 signatures UDCEA gathered at those two stores. We will first examine the alleged misconduct addressed in both the General Counsel’s and Local 588’s exceptions. We will then examine Local 588’s contention of more gener- alized, corporatewide taint. For the reasons discussed below, we adopt the judge’s findings that Raley’s’ actions at the Grass Valley and Benicia stores, at which UDCEA obtained a combined total of 35 employee signatures, did not violate Section 8(a)(2) or taint any of those signatures. We also adopt the judge’s findings that certain actions by Raley’s that violated Section 8(a)(1) at the Fair Oaks and Placerville stores, from which UDCEA did not obtain any employee signatures, did not violate Section 8(a)(2) or taint UDCEA’s majority showing. A. Grass Valley During his first campaign visit to the Grass Valley store, Wright obtained signatures from several employ- ees on their worktime, made calls on Raley’s internal telephone system to prospective allies employed at other stores, and used a Raley’s fax machine to send copies of the petition to those employees. In the course of solicit- ing signatures, Wright separately approached Lori Janatsch and Caren Skipper, two of the store’s “second assistant managers” who the judge found were agents of Raley’s, in the belief that they were eligible members of the bargaining unit. Janatsch and Skipper both declined to sign Wright’s petition. On subsequent days, Wright returned to the Grass Valley store and engaged in addi- tional campaign activity. On September 18, Wright was informally warned by Grass Valley management not to finding that Raley’s and UDCEA intended by their agreement to estab- lish a bargaining relationship for the identical unit of employees for- merly represented by IDCA, with a contract provision identical to the one in the preceding IDCA contract permitting the addition of new stores to the unit upon a showing of majority support at each store. We therefore agree that the exclusion of the Elk Grove employees from the unit was proper. For the reasons explained by the judge, we also agree that the five disputed signatures were properly counted. 12 In November 1995, UDCEA and Raley’s signed a “superseding” contract effectively extending their agreement to September 1998. use store equipment for “unauthorized” purposes. On September 21, he was given a written disciplinary warn- ing when he was again discovered using store equipment to campaign. We adopt the judge’s finding from the credited record that, except for the two occasions when Wright was warned and then disciplined, Grass Valley management was not contemporaneously aware of his specific orga- nizing activities in the store and did not encourage or “condone” them. We agree with the judge, for the rea- sons he stated, that Raley’s second assistant managers were shown to be employer agents with respect to other employees. Janatsch’s and Skipper’s knowledge of Wright’s respective attempts to solicit them can therefore be attributed to Raley’s management.13 However, we also agree with the judge that Raley’s would not violate the Act by permitting pro-UDCEA employees to engage in union activity on worktime or to use store equipment for that purpose, unless it restricted employees opposing UDCEA or supporting another union from engaging in similar activity. As the judge repeatedly found, there was no showing that Raley’s imposed any greater restric- tions in this respect on employees who supported Local 588 than on employees who supported UDCEA, at the Grass Valley store or at any other store. On the contrary, the judge found that drug clerks who supported Local 588 were permitted to campaign to the same extent as those who supported UDCEA.14 The knowledge of Wright’s solicitation of Janatsch and Skipper that can be attributed to Raley’s therefore does not establish that Raley’s acted unlawfully. Accordingly, we adopt the judge’s findings that Raley’s did not violate Section 8(a)(2) at the Grass Val- ley store, and that none of the 19 UDCEA signatures gathered at that store was shown to have been tainted. B. Benicia Wright visited the Benicia store on September 18 and spoke with 10 unit employees in succession. These con- versations took place in a small upstairs office adjoining 13 We therefore do not rely, as did the judge, on the absence of evi- dence that Janatsch and Skipper actually reported Wright’s solicitation to upper management. Because both were Raley’s’ agents, their knowledge can be attributed to Raley’s without additional evidence. Chairman Battista does not reach the issue of whether the second as- sistant managers were Raley’s agents for the purpose of communicating information concerning employees’ union activity to management. However, regardless of whether the second assistant managers were agents, he agrees with the judge that Raley’s conduct at Grass Valley did not violate Sec. 8(a)(2). 14 In fact, as the judge found, the only established instance of an em- ployee being disciplined simply for using company equipment for a nonwork purpose was the disciplinary warning given to Wright, the leader of the UDCEA organizing drive, at Grass Valley. RALEY’S 385 the “bookkeeping” office, where one of Wright’s em- ployee allies regularly spent part of her worktime. Wright stayed in this office for about 2 hours while meet- ing with the drug clerks who came to talk to him.15 One of those employees, Albert Hernandez, was on worktime when he spoke to Wright. Hernandez learned of Wright’s presence at the store from Second Assistant Manager Mike Wallis, who was also a personal friend. Wallis called Hernandez into a back room, informed him that a “union guy” was “upstairs” and wanted to “talk” to him, and told Hernandez to “go ahead and take all the time [he] need[ed].” Hernandez then went upstairs and had a conversation with Wright, during which he signed a UDCEA petition. The other nine employees who met with Wright on this occasion also signed petitions and at least some of them, like Hernandez, did so on their work- time. Again, we agree with the judge that Wallis’s exchange with Hernandez and Wright’s activity did not, under the circumstances, taint the 16 UDCEA signatures Wright collected at the Benicia store. The judge found from the credited evidence that even though Wallis, as a second assistant manager, was a Raley’s agent, he was speaking in his capacity as a personal friend rather than as a man- agement agent when he told Hernandez to speak with Wright.16 We see no basis for reversing that finding. Accordingly, Wallis’ comments to Hernandez were not unlawfully coercive under the circumstances. In addition, as the judge found, the record does not show that Wallis told any other employees to meet with Wright or that he or Hernandez related the conversation to other employees. His comments to Hernandez could therefore not have tainted any signature other than Her- nandez’, even if those comments had been unlawful. As the judge also found, with the exception of the Wallis- Hernandez exchange, there is no evidence that Raley’s management was contemporaneously aware that Wright was engaging in organizing activities on Benicia em- ployees’ worktime, nor was it shown that Raley’s had reason to believe that Wright was engaging in worktime conversation or using the store facility beyond the extent normally permitted for nonwork activity. The judge was therefore correct in finding that Raley’s did not know- ingly “permit” Wright to make any special use of the 15 The General Counsel contended that Wright’s conversations with at least five of these employees occurred in a “group meeting,” but the judge found that such a meeting was not established by the credited evidence. 16 As previously explained, Chairman Battista does not reach the is- sue of whether second assistant managers were Raley’s agents in this context. See fn. 13, supra. However, he otherwise agrees with his colleagues in the dismissal of the 8(a)(2) allegations concerning the Benicia store. Benicia facility for organizing activity that was or would have been denied to employees supporting Local 588.17 Raley’s was therefore not shown to have violated Sec- tion 8(a)(2) by enforcing its worktime or facility rules in a discriminatory manner favoring UDCEA at the Benicia store. C. Fair Oaks The judge found that a Raley’s supervisor at the Fair Oaks store told employee Tim Lee to remove his Local 588 button, and that the same supervisor also removed Local 588 authorization cards from the breakroom table and bulletin board, in both instances violating Section 8(a)(1). The General Counsel excepts to the judge’s fail- ure to find that these actions also assisted UDCEA in violation of Section 8(a)(2). We agree with the judge’s implicit finding that these two isolated violations of Section 8(a)(1), committed against Local 588, did not in themselves establish unlaw- ful assistance to UDCEA. Moreover, even apart from the absence of evidence of unlawful support, there is no evidence that these violations of Section 8(a)(1), commit- ted at a store at which no UDCEA signatures were col- lected, were disseminated to employees at other stores. We therefore adopt the judge’s finding that these viola- tions could not have tainted UDCEA’s majority showing. D. Placerville The judge found that Placerville Store Manager Tanya Beard, at some point after IDCA’s September 14 dis- claimer but before Raley’s September 23 recognition of UDCEA, called employee Gary Miser into her office during his lunchbreak and “wondered aloud in irritated tones why no one had signed the [union] petition [that was lying on the break room table].” Beard “opined fur- ther that it was in the employees’ own ‘best interests’ to be represented by a union.” Miser disagreed with Beard and soon left her office. He did not sign the petition, which had disappeared from the breakroom by the end of the day. The judge found that Beard’s comments violated Sec- tion 8(a)(1), but that the General Counsel had not shown that Beard was attempting specifically to assist UDCEA, since it was unclear from the record whether this conver- sation occurred before Local 588 began to campaign for recognition. Consequently, the judge found, Beard did not violate Section 8(a)(2). Miser was the sole witness with respect to this allega- tion, and no evidence establishes either the date of the 17 In fact, the judge found that a “practice” had been “institutional- ized” at Benicia and other Raley’s stores of permitting employees to discuss union-related matters on the clock; and such discussions had occurred while the unit was represented by IDCA. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386 conversation or that Beard was referring specifically to UDCEA. Moreover, there was no evidence that Beard’s comment was disseminated to other employees. We therefore adopt the judge’s findings that Beard’s com- ment was not shown to have been made specifically in support of UDCEA and therefore did not violate Section 8(a)(2), and that the comment did not taint any signatures collected by UDCEA at other stores. III. ALLEGED UNITWIDE MISCONDUCT Having adopted the judge’s dismissal of most of the complaint’s allegations of unlawful conduct at particular Raley’s stores, we also adopt the judge’s broader find- ings that Raley’s did not, as a matter of unitwide policy, unlawfully provide store access or support for UDCEA while withholding such access or support from Local 588. There is no dispute that Raley’s viewed Local 588 with hostility and preferred UDCEA as a successor to IDCA, that it communicated this preference to its drug clerks, that it did not permit Local 588’s staff any greater access to store facilities than (as discussed below) they were entitled to have as a matter of law, and that it promptly extended recognition to UDCEA as soon as UDCEA had made a colorable showing of majority sup- port. However, this does not establish that Raley’s acted unlawfully in any respect beyond the few isolated viola- tions of Section 8(a)(1) the judge found. First, there is no evidence in the credited record of any policy or pattern of activity by Raley’s to support UDCEA by unlawful means. In addition, as already noted, there was an established practice in Raley’s stores of permitting employees to use company telephones and fax machines for personal business as long as this privi- lege was not “abused.” To the extent that Raley’s had a central policy of restricting the nonwork use of store equipment, there is no evidence in the record that any employee had been disciplined simply for using store equipment prior to the warning that Wright, the leader of the UDCEA drive, was given on September 18.18 The judge also found from the record that store managers sometimes exercised their “discretionary powers” in ways that were not consistent with “official” policy, in- cluding the toleration of employees’ use of in-store phones and fax machines for “personal” business. On these grounds, we agree with the judge that Raley’s man- agement was not shown to have permitted or been con- temporaneously aware of any use of store equipment by UDCEA supporters that exceeded normally permitted nonwork use. 18 The unlawful warning given to IDCA President Eidam 5 months earlier was purportedly for receiving an excessive number of union- related phone calls while at work. Similarly, as noted above, the judge found that em- ployees were generally permitted to engage in some nonwork activity on worktime, and specifically that Raley’s had previously allowed employees to engage in IDCA-related activity on the clock. Some store manag- ers had even “institutionalized such a practice . . . over the course of many years.”19 Again, the record estab- lishes that during the period between the IDCA dis- claimer and Raley’s recognition of UDCEA, employee supporters of Local 588 were permitted to engage in on- site union activity to the same extent as UDCEA sup- porters. In addition, the judge found that with the few excep- tions noted above, the credited record did not show that Raley’s was contemporaneously aware of specific in- store activity by UDCEA supporters. Certainly Raley’s was aware from the day after the IDCA disclaimer that UDCEA, led by Wright, was campaigning for majority support. However, as the judge found, local managers could not continuously monitor all of their store areas for such activity, and when pro-UDCEA employees from other stores came to solicit local employees for signa- tures, local managers did not immediately become aware of their presence or their activity. The judge was also correct in distinguishing between off-duty employees’ right of access to their workplace to engage in Section 7 activity and nonemployee union supporters’ more limited rights of access. The General Counsel’s and Local 588’s generalized contention that Raley’s gave discriminatory campaign access to UDCEA is based largely on Raley’s exclusion of Local 588’s staff members who visited stores to meet with drug clerks. However, it is well established that, except in specific circumstances not present here, an employer may ex- clude nonemployees from engaging in union activity on its property. E.g., Lechmere, Inc. v. NLRB, 502 U.S. 527, 537 (1992); New York New York Hotel & Casino, 334 NLRB 762 (2001), enfd. denied on other grounds 313 F.3d 585 (D.C. Cir. 2002); Leslie Homes, Inc., 316 NLRB 123, 126–127 (1995).20 An employer is also not required to give a union’s nonemployee supporters the same degree of campaign access as it gives its own em- 19 In view of the divergent practices of local managers from store to store, we decline to find that an occasional discrepancy of action be- tween individual stores establishes a pattern of disparate enforcement by Raley’s. Accordingly, we do not find that the unlawful removal of Local 588 buttons from the breakroom table at the Fair Oaks store, in contrast with Beard’s tolerance of the union petition that lay on the breakroom table for several hours at the Placerville store (even assum- ing the petition was from UDCEA), establishes disparate enforcement. 20 The General Counsel concedes that Raley’s had the right to ex- clude Local 588’s staff organizers from its property under Lechmere. Local 588’s briefs do not address Lechmere. RALEY’S 387 ployees to support either the same or a different union.21 With the exception of the violations at the Fair Oaks store, all the incidents cited by the General Counsel and Local 588 in which the latter’s supporters were shown to have been restricted or ejected involved Local 588’s staff, not Raley’s employees.22 On the other hand, as previously noted, Raley’s employees who supported Lo- cal 588 were permitted the same degree of campaign access as pro-UDCEA employees.23 For these reasons, we adopt the judge’s ultimate find- ings that Raley’s did not unlawfully assist UDCEA, that UDCEA’s majority showing was not tainted by unlawful conduct, that Raley’s recognition of UDCEA was conse- quently lawful, and that Raley’s and UDCEA acted law- fully in executing their first and succeeding collective- bargaining agreements.24 IV. UDCEA/UWRU’S DUES-RELATED “LATE FEE” The terms of the contract made between Raley’s and UDCEA (by that time renamed UWRU) on October 24, 1993, were largely identical to those in the previous con- tract between Raley’s and IDCA, including a union- security provision. UWRU also adopted a union consti- tution that contained a provision authorizing a “fee” to be imposed on unit members who fell behind in their dues, 21 It is true that under one exception to the Lechmere rule, when two unions are competing to represent a unit, an employer may not give discriminatory access to one union’s nonemployee supporters while barring the other union’s nonemployee supporters. Lechmere, supra, 502 U.S. at 535; Nicks’, 326 NLRB 997, 1000 (1998), enfd. denied on other grounds sub nom. Food & Commercial Workers Local 400 v. NLRB, 222 F.3d 1030 (D.C. Cir. 2000). However, since all of UDCEA’s active supporters were Raley’s employees, that exception is not applicable here. 22 Moreover, as the judge noted, the record does not show that Raley’s had previously given store access to other nonemployees to engage in solicitation for other purposes. 23 The General Counsel and Local 588 cite New England Motor Freight, 297 NLRB 848 (1990), and other cases for the assertion that even minor acts of support for one union can violate Sec. 8(a)(2) where a second union is competing for employee support. Again, however, the premise underlying such unlawful discrimination is that the em- ployer is treating similarly situated individuals differently. As ex- plained above, that is not the case here. 24 We also agree with the judge, for the reasons he explained, that Raley’s did not violate Sec. 8(a)(2) when Henry Telfeian, a contract attorney, ceased representing Raley’s in September 1993 and within a matter of days became counsel to UDCEA with respect to certain mat- ters. As the judge found from the credited record, Telfeian was acting on his own initiative in this context, not as an agent of Raley’s, and Raley’s in fact expressed disapproval of his action but did not have the authority to bar him from representing UDCEA. Accordingly, even if a conflict of interest arguably existed for Telfeian, as Local 588 contends, that conflict would not have implicated Raley’s. Moreover, as the judge also found, Telfeian did not represent Raley’s and UDCEA si- multaneously, and the particular services he performed for UDCEA during the 2-month period at issue were confined to matters in which Raley’s had no interest or involvement. in the amount of $5 for each month of delinquency. UWRU and Raley’s subsequently imposed the late fee on delinquent members from March 1994 to March 1995, with URWU characterizing the fee in its related corre- spondence with those members alternately as a “late fee” and a “reinstatement fee.” We agree with the judge that, because Raley’s recogni- tion of UDCEA and the parties’ subsequent entry into a contract were lawful actions, the enforcement of the con- tract’s union-security provision was also lawful. We also agree that the late fee was not a “penalty” or “assess- ment” but rather a legitimate component of “periodic dues” within the meaning of Section 8(a)(3). Particularly considering that the Respondents’ contract did not in- clude a checkoff requirement, the $5 late fee was not disproportionate to the cost UDCEA incurred in collect- ing late dues and was not an arbitrary, excessive, or ir- regular assessment that would fall outside 8(a)(3)’s pro- tection.25 Accordingly, UWRU’s imposition of the fee on mem- bers in arrears did not violate Section 8(b)(1)(A) or (2), and Raley’s enforcement of payment pursuant to the un- ion-security clause of the Respondents’ contract did not violate Section 8(a)(3). V. THE JUDGE’S RECOMMENDED ADDITIONAL NOTICE LANGUAGE Having dismissed most of the complaint allegations, the judge opined that in view of the length and duration of the proceeding, the remedial notice for the violations he had found should include language indicating that Raley’s’ actions in recognizing and entering into a col- lective-bargaining agreement with UDCEA/UWRU and enforcing the contract’s union-security provision with respect to the Union’s late fee had been found lawful. The General Counsel excepts. We agree with the General Counsel that the judge’s additional notice language is unwarranted and does not conform to established Board procedure. The purpose of the remedial notice is to inform employees that the Re- spondent has been found to have committed certain un- fair labor practices and is being required to take specified remedial action. This purpose does not include inform- ing employees that other actions taken by the respondent were lawful. As the Board noted in Ishikawa Gasket, supra, a Board notice informs employees of “the unlaw- ful acts of respondent employers or unions.” 337 NLRB at 176 (emphasis added). Under Section 10(c), notice- 25 See Retail Store Employees Local 322 (Ramey Supermarkets), 226 NLRB 80, 90–91 (1976); Teamsters Local 959 (RCA Service Co.), 167 NLRB 1042 (1967); Machinists Lodge 1345 (Cobak Tool), 157 NLRB 1020 (1966). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388 posting is an “affirmative action” remedy necessary to “effectuate the policies of th[e] Act.” The requisite ne- cessity to effectuate the Act’s policies arises only from violations of the Act, not from compliance with it. There is, or at least there should be, nothing notice-worthy about complying with the law. We will revise the judge’s notice accordingly. VI. THE RESPONDENTS’ REQUEST FOR TIIDEE SANCTIONS Both Respondents assert that they are eligible for at- torney fees from the General Counsel under the authority the Board exercised in Tiidee Products, 194 NLRB 1234 (1972), enfd. 502 F.2d 349 (D.C. Cir. 1974). There the Board, relying on its “inherent authority” to control its own proceedings, awarded attorney fees to the charging party union against the respondent employer on the ground that the respondent had engaged in “frivolous” litigation. The Respondents contend that the General Counsel, in essence, abused the trial process to conduct a postcomplaint investigation and pursued frivolous theo- ries of liability, and they request that the issue of sanc- tions against the General Counsel be remanded to the judge for additional factfinding. The judge, citing Irwin Industries, 325 NLRB 796 (1998), rejected the Respondents’ claims for Tiidee sanc- tions, finding that the postdecision procedure established by the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, is the exclusive mechanism for an award of attor- ney fees to respondents in agency proceedings. We agree with the judge that the Respondents are not eligible for Tiidee sanctions against the General Counsel as a matter of sovereign immunity. However, we also find, on the basis of the present record, that the Respon- dents would not be entitled to attorney fees from the General Counsel even if they were otherwise eligible to seek them.26 A. Eligibility It is well established that the United States has sover- eign immunity, and that claims can be asserted against it only to the extent that it has explicitly waived that im- munity. E.g., Library of Congress v. Shaw, 478 U.S. 310 26 Chairman Battista agrees with his colleagues that the Respondents would not be entitled to attorney fees under Tiidee because the litiga- tion by the General Counsel in this proceeding was not frivolous or brought in bad faith. Therefore, he finds it unnecessary to reach the issue of whether Tiidee sanctions against the General Counsel would be appropriate if the prosecution were frivolous or in bad faith. In addi- tion, because neither Respondent seeks or could seek EAJA fees at this time, Chairman Battista does not pass on any EAJA issues. Finally, because neither Respondent seeks reimbursement on any other basis, Chairman Battista finds it unnecessary to pass on whether the doctrine of sovereign immunity precludes reimbursement on any such basis. (1986);27 Grumman Data Systems Corp. v. U.S., 28 Fed.Cl. 803, 810 (1993). Accordingly, “[a]s a general rule, absent specific legislation to the contrary, the costs of litigation . . . are not recoverable against the United States.” Grumman Data Systems, supra, 28 Fed.Cl. at 810. It follows that, absent “specific legislation” author- izing their claims, the Respondents are not eligible to seek attorney fees from the General Counsel.28 The only “specific legislation” that could bear upon the Respondents’ potential eligibility is EAJA. As a statutory waiver of sovereign immunity, however, EAJA “must be strictly construed in favor of the United States.” Ardestani v. I.N.S., 502 U.S. 129, 137 (1991); see also Arneson v. Callahan, 128 F.3d 1243, 1245 (8th Cir. 1997). We note first that EAJA does not, by its terms, specifi- cally authorize or even recognize nonstatutory sanctions in favor of any respondent against a Federal agency. Moreover, far from implying that extra-statutory sanc- tions are available beyond the statutory sanctions it au- thorizes, EAJA clearly operates to limit eligibility to its own prescribed sanctions. EAJA makes no provision for litigants who do not meet its specific eligibility criteria. Thus, strictly construing EAJA in favor of the United States, it is clear that only those respondents who meet EAJA’s explicit eligibility requirements are entitled to seek attorney fees from the United States, and that (in the absence of any other applicable statutory waiver of sov- ereign immunity) Congress intended EAJA to be the sole avenue for respondents to pursue attorney fees against the General Counsel. Accordingly, and properly, the Board has never before exercised its inherent authority to control its proceedings to award attorney fees against the General Counsel. With respect to EAJA claims, both EAJA and the Board’s implementing rules require an eligible party to wait until the agency issues its final decision in the un- derlying case before applying for attorney fees. 5 U.S.C. § 504(a)(2); Board Rules and Regulations §§ 102.143– 155. Accordingly, the Respondents may not seek attor- ney fees until the Board issues its final decision in the case, and then only pursuant to EAJA’s other require- ments. In Irwin Industries, supra, on which the judge relied, the Board rejected a respondent employer’s claim for attorney fees against the charging party union, finding that Section 10(c) of the Act did not authorize an award 27 Shaw was subsequently superseded with respect to other issues by the Civil Rights Act of 1991. 28 In addition, the “American Rule” generally bars awards of attor- ney fees to prevailing parties. Alyeska Pipeline Service Co. v. Wilder- ness Society, 421 U.S. 240, 247, 265–271 (1975). RALEY’S 389 of attorney fees against any party not named in the com- plaint as a respondent. 325 NLRB at 797 fn. 9. The Re- spondents contend that Irwin’s holding with respect to fee-award eligibility was limited to determining the scope of Section 10(c), and that Irwin did not preclude an award of attorney fees to respondents under the Board’s inherent power to control its own proceeding. The Re- spondents also cite Lake Holiday Manor, 325 NLRB 469 fn. 5 (1998), in which the Board relied on that inherent power to award attorney fees to the charging party union against a respondent employer who had engaged in “bad- faith” litigation. However, neither Irwin nor Lake Holiday addressed a claim for attorney fees against the General Counsel. For the reasons explained above, this distinction is critical. Moreover, although the Respondents are correct that the Board’s decision in Irwin did not explicitly recognize limitations on its own “inherent authority” to control its proceedings, Irwin provides no affirmative support for the Respondents’ claims. In that case, the judge recom- mended an award of attorney fees to the respondent against the charging party union, specifically relying in part on Tiidee. 325 NLRB at 812. In rejecting the judge’s recommendation and citing Section 10(c) of the Act, the Board did not suggest in any way that the re- spondent would have been eligible for attorney fees against the General Counsel.29 Id. at 797. For all of these reasons, we adopt the judge’s finding that EAJA provides the only available avenue for Re- spondents to assert claims for attorney fees against the General Counsel. B. The Record Even if the Respondents could seek a Tiidee remedy against the General Counsel as a matter of law, we would find from the present record that they would not be enti- tled to such an award on the merits. Under Tiidee and its progeny, a respondent or charging party is subject to an award of attorney fees when it liti- gates in “bad faith” or engages in “frivolous” litigation. Lake Holiday Manor, supra, 325 NLRB at 469–470; Tiidee, 194 NLRB at 1236. “Frivolous” does not mean “debatable.” Teamsters Local 122 (August Busch & 29 The Respondents also cite Farren’s Tree Surgeons, Inc., 264 NLRB 668 (1982), an older case in which the Board denied the respon- dent’s claims for attorney fees against the General Counsel and the charging party on the stated ground that frivolous litigation was not shown. However, as the judge here noted, the Board’s stated reliance on a common basis other than party eligibility for rejecting the fee claims in Farren’s Tree was hardly tantamount to a suggestion that the Board viewed the General Counsel as subject to Tiidee sanctions. Moreover, we decline the Respondents’ tacit invitation to infer any such suggestion because to do so would contravene the principle of sovereign immunity, discussed above. Co.), 334 NLRB 1190, 1194 (2001), enfd. 2003 WL 880990 (D.C. Cir. 2003). This standard of misconduct requires a showing that the party against which a Tiidee remedy is sought litigated a position it knew to be false, unlawful, or in violation of an enforceable order or set- tlement agreement.30 It hardly needs to be observed that this was an exten- sive and highly complicated case, involving a multiplic- ity of issues. The lengthy record covered actions that occurred over a 2-year period in a 51-store bargaining unit and involved a large number of individual actors. Including IDCA (which had separate counsel), there were five parties to the litigation. As the Respondents emphasize, there were numerous disputes over complaint amendments, trial scheduling, and discovery issues, and the General Counsel’s theory of the case shifted over time. There were also complicated disputes of fact and law with respect to alleged coercive activity, disparate enforcement and discriminatory treatment, scope of the bargaining unit, attorney-client privilege, and authentic- ity of signatures. In a case of such complexity, it will necessarily be particularly difficult for a party to demon- strate that another party litigated the case (or part of the case) in bad faith, or that another party’s position on an issue was “frivolous” rather than “debatable.” Although we have adopted most of the judge’s find- ings and dismissed most of the complaint allegations, it is clear from the record that the General Counsel’s case cannot be characterized as “frivolous” or “brought in bad faith.” Even assuming arguendo that the General Coun- sel made some litigation decisions that, seen in retro- spect, were arguably erroneous, he cannot be said to have litigated a position he knew to be false, unlawful, or in violation of an enforceable order. Moreover, although the judge expressed frustration with the evolution of the General Counsel’s theory of the case during the trial, and expressed some skepticism regarding some of the Gen- eral Counsel’s legal arguments in his decision, the judge often declined to impose limitations on the evidence that the General Counsel sought to admit at trial, which sug- gests that he found the evidence relevant to issues legiti- mately raised. In addition, an extremely lengthy analysis was required to decide the issues before him. These con- siderations also militate against finding the General Counsel liable for sanctions that are reserved for bad- faith misconduct. 30 See Electronic Workers Local IUE v. NLRB¸ 502 F.2d 349, 356– 357 (D.C. Cir. 1974); 675 West End Owners, 345 NLRB 324, 326 (2005); Alwin Mfg. Co., 326 NLRB 646, 647–648 (1998), enfd. 192 F.3d 133 (D.C. Cir. 1999); Lake Holiday Manor, supra, 325 NLRB at 470. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390 For these reasons, even if we were to hold that sover- eign immunity does not preclude an award of Tiidee sanctions against the General Counsel, we would still decline the Respondents’ request to remand the case to the judge for further factfinding on this issue. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Raley’s, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified below. Substitute the attached notice for that of the adminis- trative law judge. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discriminate against your union officers by verbally criticizing or warning them for getting too many union calls at work under circumstances where we have encouraged employees to call their union officers at work. WE WILL NOT make critical remarks about employees who have failed to sign a petition seeking union repre- sentation. WE WILL NOT tell employees not to wear buttons sup- porting United Food and Commercial Workers Union, Local 588, or any other union. WE WILL NOT remove cards, buttons, or literature sup- porting United Food and Commercial Workers Union, Local 588, or any other union, from our breakroom ta- bles or bulletin boards. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the criti- cism or warning we issued to Gilbert Eidam on April 6, 1993, and WE WILL, within 3 days thereafter, notify him in writing that we have done so and that we will not use the criticism or warning against him in any way. RALEY’S DECISION PART ONE: OVERVIEW I. INTRODUCTION TO THE CASE, THE PARTIES, AND THE ISSUE THAT MOST CONCERNS THEM TIMOTHY D. NELSON, Administrative Law Judge. This is a consolidated unfair labor practice prosecution alleging viola- tions of Section 8(a)(1), (2), (3), and (5), and 8(b)(1)(A) and (2) of the National Labor Relations Act (the Act). It is brought in the name of the General Counsel of the National Labor Rela- tions Board (the Board) by the Regional Director for Region 20, against two Respondents. One Respondent is a retail chain- store employer correctly called Raley’s.1 The other Respondent is a labor organization now called United Wholesalers and Re- tailers Union (UWRU), a Union that began life with a different name (UDCEA, infra). UWRU is an employee-formed Union that Raley’s is alleged to have unlawfully recognized (when it was called UDCEA) as the representative of its drug clerks in its California drug centers. This recognition occurred on Sep- tember 23, 1993, 9 days after the Union that previously had represented the drug clerks (IDCA, infra), disclaimed interest in representing them. At the time of UDCEA/UWRU’s recogni- tion, another union had set its sights on representing Raley’s California drug clerks. This rival, the author of most of the charges underlying the prosecution, was United Food and Commercial Workers Union Local 588 (Local 588), affiliated with United Food and Commercial Workers International Un- ion, AFL–CIO (UFCW). I heard the case in 63 days of trial proceedings held variously in San Francisco and Sacramento, California, beginning on August 19, 1996, and ending on August 25, 1997.2 During the 1 A preliminary note on styling and usage: “Raley’s” is the correct corporate styling of the Respondent-Employer, and this styling was eventually adopted in versions of a complaint (as amended after the trial opened) that in earlier incarnations had named the Employer “Raley’s Supermarkets.” The founder’s surname was “Raley,” and the possessive apostrophe in the corporate styling apparently reflects a usage that became so pervasive in the shopping community that it was clung to in the naming of the corporation itself, despite the built-in grammatical challenge presented when one wants to turn the noun Raley’s into a possessive adjectival form—that is, to indicate the al- ready possessively styled corporation’s ownership of or responsibility for something. The grammatical challenge can be sidestepped by resort- ing to more cumbersome formulations or hypertechnical markings; or it can simply be ignored, as the parties have done on brief and as I have done throughout this decision, by simply writing Raley’s to refer either to the Employer itself, or to something that it owns or is responsible for, trusting that my meaning in any given case will be apparent. 2 The transcript of trial proceedings contains nearly 12,000 pages.[*] Adding to the bulk of the record are more than 300 numbered main exhibits and many, separately lettered subexhibits, containing, in the aggregate, more than 1500 pages.[**] RALEY’S 391 trial, at least one attorney for each of the four main parties in interest (the General Counsel, Local 588, Raley’s, and UWRU)3 was in virtually constant presence, and, at various intervals during the trial, additional attorneys also entered ap- pearances for more limited purposes.4 The positions of the main [*]The transcript is shot through with a dismayingly large number and variety of plain errors, including misspellings—and inconsistent misspellings at that—of place names, the names of witnesses, attorneys, and other persons, plus mistranscriptions, mispaginations, mislabelings of transcript volumes and dates and locations of hearing sessions, and misidentifications of speakers during the trial. On January 2, 1999, the General Counsel submitted an extensive motion to correct the tran- script, which I receive in evidence as ALJ Exh. 75. On March 29, 1999, Raley’s and UWRU submitted a joint motion to correct the transcript in additional respects, which I receive into evidence as ALJ Exh. 76. No party has opposed any of the corrections proposed by any other party. Accordingly I grant the respective motions to correct, pro forma. I note further that these corrections do not cure all of the errors in the tran- script, only those which seem to have gored an ox belonging to one of the parties. [**] Throughout this decision, exhibits tendered by the General Counsel will be referenced as “GC Exh. __”; exhibits tendered by Local 588 will be referenced as “Lo. 588 Exh.__”; exhibits tendered by either Respondent party will be referenced as “R. Exh. __”; and exhib- its tendered at the request or in the name of the judge (mostly com- prised of procedural motions, petitions to revoke subpoenas, ancillary briefs, and other miscellaneous papers filed after the opening of the trial) will be referenced as “ALJ Exh. __.” 3 As the case caption indicates, there are three other nominal parties to the case, all of them charging parties. One is IDCA, which continued to represent Raley’s pharmacists even after disclaiming interest in representing the drug clerks, and which sought unsuccessfully at trial to withdraw the underlying charges previously filed in its name when IDCA was under different leadership. As is further noted below, IDCA made no appearance at trial except to seek withdrawal of its earlier charges. The other two nominal parties were employees or former employees of Raley’s, Chris Zicarelli and Thomas Moore, whose charges called into question certain postrecognition actions of Raley’s and UWRU relating to the enforcement of the union-security clause in their labor agreement. However, Zicarelli and Moore made no appear- ance in the trial—neither individually, nor through counsel, nor as witnesses. 4 Trial appearances by counsel were as follows: For the General Counsel: Paula R. Katz and Kathleen Schneider, Esqs. (NLRB Region 20), of San Francisco, California. For Respondent Raley’s: Patrick W. Jordan and Stephen N. Yang, Esqs. (Jeffer, Mangels, Butler & Marmaro), of San Francisco, Califor- nia. For Respondent UWRU: Henry Telfeian, Esq., of Berkeley, Califor- nia. For Charging Party UFCW Local 588: Barry S. Jellison, Esq. (Davis, Cowell & Bowe), San Francisco, California, joined variously by Elizabeth Lawrence, Andrew J. Kahn, and Steven Stemerman, Esqs. (Davis, Cowell & Bowe), and by George R. Murphy, Esq., General Counsel, United Food and Commercial Workers Union, AFL–CIO, Washington, D.C. For IDCA (for the limited purpose of seeking withdrawal of charges filed in its name by Davis, Cowell & Bowe attorneys in Cases 20–CA– 24973 and 20–CA–25354): Carl Samuel, Esq. (Samuel, Shafie & Sam- uel), of Fair Oaks, California. For Henry Telfeian and Edwin Wright personally (for the limited purpose of arguing motions relating to Fifth Amendment issues that parties in interest are well reflected in their attorneys’ extensive and often helpful post-trial briefs,5 all of which I have studied, together with the many legal authorities each of the parties has variously invoked. It may already be evident from my summaries and annota- tions to this point that this case contains very few straightfor- ward or routine elements, and many exotic ones. My next effort will be to identify more particularly the real parties in interest and some central features of the procedural and factual back- ground. I will follow this (in sec. II) with a brief explanation of what is and is not in issue with respect to a pivotal controversy in the case, the lawfulness of Raley’s September 1993 recogni- tion of UDCEA/UWRU. It deserves immediate note, however, that the several components of the case—its lengthy and com- plex factual background and procedural history, the large num- ber and variety of issues it raises with respect to the conduct of one or both of the respondent parties during a period spanning nearly 4 years, and the contentions of each of the parties with respect to those many issues—defy capture in any single pre- liminary narration. Rather, before an adequate picture will emerge, many of the matters quickly summarized here will need to be revisited in stages, beginning with the expanded summary set forth below in section III, with yet additional de- tails to be narrated in succeeding parts of this decision. Raley’s owns and operates a chain of more than 50 super- markets in northern California, plus a few more in Nevada.6 All or nearly all of these supermarkets also house what Raley’s calls a “drug center,” where employees, called “drug clerks,” work under a distinct team of drug center managers and assis- tant managers, who are in turn supervised by district drug su- pervisors, all operating within a separate corporate drug divi- sion. UWRU was first formed by certain Raley’s drug clerks on September 15, 1993, the day after the union that previously had represented the drug clerks in California for more than 30 years, Independent Drug Clerks Association (IDCA), dis- claimed interest in representing them. As further explained later became moot): Edward L. Alvord (Alvord & Ewing), of Lakeport, California. 5 The deadline for receipt of briefs was extended several times, ulti- mately to March 11, 1998, based on a series of substantial and unop- posed showings of need by counsel for one or more of the parties. The General Counsel’s 390-page submission (which was corrected in sev- eral modest ways by a supplemental submission dated April 7, 1998) is the longest of the briefs, and addresses all violations alleged in the ultimate complaint (plus some supposed violations that were never alleged). It is followed in length by Raley’s brief (305 pp., addressing violations allegedly committed by Raley’s), then by Local 588’s brief (83 pp., primarily addressing alleged violations associated centrally with Raley’s initial recognition of UDCEA/UWRU), and, finally, by UWRU’s brief (70 pp., addressed chiefly to “head-count” issues and violations allegedly committed by UWRU in accepting recognition from Raley’s and in seeking to enforce the union-security clause). 6 Raley’s admits in answers to various complaints, and I find, that its operations qualify it as an employer engaged in commerce within the contemplation of Sec. 2(6) and (7) of the Act. Raley’s also admits more specifically, and I find, that in the year ending December 31, 1995, Raley’s derived gross revenues exceeding $500,000, and purchased and received at its various California facilities goods and materials from outside California that were worth more than $1500. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392 below, UWRU began life with a different name, United Drug Center Employees Association (UDCEA), and UDCEA was the name it was using when Raley’s first recognized the fledgling union as the exclusive representative of all of its (650-plus) drug clerks working in its drug centers within California. How- ever, by the time those parties concluded their first labor agreement in late October 1993, the employee-founders had already renamed their new Union UWRU, and the parties had signed contract documents reflecting the name change. Local 588, the principal Charging Party, has represented grocery clerks and meatcutters in many of Raley’s supermar- kets for many years, in the context of a multiemployer bargain- ing arrangement. Over the course of the 30-plus years during which IDCA represented the California drug clerks, Local 588 had also been an on-and-off rival for the representational affec- tions of those “drug-side” workers, and it was definitely a suitor at the time Raley’s first recognized UDCEA/UWRU. As noted, the initial recognition of UDCEA/UWRU was it- self made possible by a disclaimer-of-interest published only 9 days earlier, on September 14, 1993, by Gilbert Eidam, who was then the (soon-to-resign) president of IDCA. (IDCA also represented the nonsupervisory pharmacists working in the California drug centers, in a separate bargaining unit, but Ei- dam’s disclaimer did not purport to disturb this relationship, and, as a consequence, IDCA, under new leadership, continues to represent the statewide unit of pharmacists.) When Eidam dispatched the disclaimer to Raley’s, he simultaneously mailed a separate letter to the California drug clerks expressing his belief that IDCA had been “dominated” by Raley’s, and that the drug clerks’ interests would be better represented by Local 588. Local 588 had formed an alliance with Eidam/IDCA nearly a year prior to the disclaimer, in October 1992, only a few months after Eidam had first been elected president of IDCA. This alliance was maintained throughout the ensuing 11 months before the disclaimer, and Local 588 clearly entered into it with the aim of supplanting IDCA and bringing the California drug clerks under Local 588’s representational banner. (I will find that Eidam also shared this aim, apparently from the start.) When Local 588 entered into this alliance in October 1992, it was already enmeshed in a separate and bitter labor dispute with Raley’s concerning its demands for “card-check” recogni- tion as the representative of grocery clerks in certain of Raley’s existing supermarkets not already covered by Local 588’s mul- tiemployer labor agreement. (This dispute led to the “Grocery Cases,” infra.) When Raley’s first recognized UDCEA/UWRU in September 1993, its chief executives were admittedly mind- ful of Local 588’s representational designs on the drug clerks, and were admittedly hostile to any prospect of Local 588’s becoming their bargaining agent. As noted, UWRU, an unaffiliated union, was originally christened by the employees who formed it with a different name, UDCEA—the name it was using when Raley’s first rec- ognized it, but a name that was dropped in favor of UWRU about a month later, shortly before the Respondents concluded the first of their (by now at least two) successive collective- bargaining agreements. The name change in itself is inconse- quential to the merits of the case. Briefly, it occurred because, at some quite uncertain point after UDCEA’s employee- founders began the petition-signing campaign that quickly led to UDCEA’s recognition, Local 588’s organizing director, Jacques Loveall, sought to coopt the “UDCEA” name by “re- serving” the name (or claiming to have reserved the name) as some kind of “affiliate” of Local 588. And then, after the rec- ognition of the employee-formed UDCEA, Loveall, through Local 588’s attorneys, threatened to sue UDCEA’s principal employee founder and then-interim president, Edwin Wright, and other interim officers of the fledgling union, if any of them continued to use or act in the name of “UDCEA.”7 Indeed, for a time following Raley’s recognition of the UDCEA formed by Wright and his employee-allies, Local 588 had also claimed variously to Raley’s, to Wright, and to drug clerks in general (in a mass mailing soliciting employees to sign “UDCEA” au- thorization cards) that Local 588’s “UDCEA” was now the recognized representative of the drug clerks.8 However, no one took such claims seriously, least of all the General Counsel, who acknowledges that there is no evidence that any employ- ees, prior to UDCEA’s recognition, had signed both a petition for Ed Wright’s UDCEA and an authorization card for Local 588’s “UDCEA” (which latter cards almost certainly had not even been printed prior to UDCEA’s recognition). And the controversies about the ownership of the “UDCEA” name, and the related claims and threats of lawsuits by Local 588, do not now figure at all in this litigation, except as background— mainly, to explain in part how Attorney Henry Telfeian, who had only recently performed certain key legal services for Raley’s associated with the recognition, soon undertook to serve as UDCEA/UWRU’s attorney for a variety of purposes. (These included, initially, responding to various claims and threats of lawsuit against Wright and/or UDCEA or its other employee-founders made by Local 588 through its attorneys, drafting a constitution and bylaws for the fledgling union, and preparing various filings for the new union with the United States Department of Labor, as mandated by the Landrum- Griffin Act. They also included, eventually, serving as UWRU’s attorney in this trial. However, they were never shown to have included, any services which placed Telfeian in the position of “dealing” or “negotiating” on UWRU’s behalf with Raley’s, or vice-versa.) Although the September 1993 recognition of UDCEA/ UWRU is the principal target of the General Counsel’s attacks, it is by no means the only one. The consolidated prosecution 7 There is affirmative evidence of record that Local 588 put its own “UDCEA” authorization cards into circulation on an uncertain date after the September 23 recognition of the employee-formed UDCEA. There is no evidence that Local 588 put any such cards into circulation prior to the recognition. Indeed, there is no reliable evidence that the Local 588-affiliated “UDCEA” even existed at the time Raley’s recog- nized the employee-formed UDCEA. 8 See R. Exhs. 5(a) and (b). These exhibits were authenticated by witness Tim Lee in the November 7, 1996, trial session as documents he received in the mail sometime after September 23, 1993. In the November 15, 1996 trial session, Local 588’s attorney acknowledged that the exhibits were authentic copies of Local 588-generated docu- ments mailed to drug clerks after September 23, 1993. And in the April 17, 1997 trial session, Local 588’s organizing director, Jacques Loveall, likewise acknowledged their authenticity in all these respects. RALEY’S 393 traces from and incorporates charges filed as early as October 1992. (Like all subsequent charges filed in Local 588’s name, these early charges were authored by attorneys in Local 588’s San Francisco law firm, Davis, Cowell & Bowe, but these early charges were filed in the name of IDCA and/or Gil Eidam.9) The prosecution also now incorporates additional charges, in- cluding (most recently) a “second amended” charge filed by Local 588 against UWRU on March 29, 1996, coincidental with the Regional Director’s issuance of the incarnation of the complaint known as the amended consolidated complaint, infra, the first complaint to attack the recognition as unlawful. (As further noted below, by the time the trial closed in August 1997, the outstanding complaint was now captioned “Fourth Amended Consolidated Complaint.”) Thus, although the recog- nition of UDCEA/UWRU is now identified by the General Counsel as the “gravamen” of the prosecution, it was hardly the sole focus of this lengthy litigation. Indeed, many weeks of trial were expended in litigating issues raised by other attacks against the behavior of Raley’s throughout the nearly 4-year period spanned by the underlying charges, and further attacks against UWRU’s own actions in accepting recognition from Raley’s and in seeking to enforce the union-security clause that first appeared in the original labor agreement. The prosecution is now centrally inspired by a charge filed by Local 588 on October 4, 1993. This charge, filed about 2 weeks after Raley’s recognized UDCEA, alleged that Raley’s violated Section 8(a)(2) by conferring that recognition. (The charge also averred, contrary to fact, that the recognition of “Mr. Wright’s group” had occurred at a time when Local 588 “had already demanded recognition and offered to prove major- ity.”10) This charge (and other charges filed previously and subsequently) eventually led the Regional Director to issue—on March 29, 1996,—an “Amended Consolidated Complaint” against Raley’s and UWRU. This was the first complaint to attack the recognition as unlawful, and likewise the first to allege that Raley’s had compounded that violation by soon 9 Charges in Cases 20–CA–24973 and 20–CA–25354 form the basis for prosecution claims that Raley’s variously violated Sec. 8(a)(1), (3), and (5) in the period October 1992–May 1993. The charge in Case 20– CA–24973 was filed by attorneys in the Davis, Cowell & Bowe law firm on behalf of “Independent Drug Clerks Association.” The charge in Case 20–CA–25354 was signed by Davis, Cowell & Bowe attorneys on behalf of “Gil Eidam; Independent Drug Clerks Association.” 10 In fact, as the record now shows, it was not until sometime on September 24, the day after Raley’s recognized UDCEA in the state- wide unit, that Local 588 faxed to Raley’s four, identically worded demands for recognition (compiled in GC Exh. 66) in four named sin- gle-store units of drug clerks (Benicia, Oroville, Emerald Bay/Tahoe #167, and Ukiah). And it was not until October 1, 1993, that Local 588 filed petitions for elections (compiled in Lo. 588 Exh. 13) in only two of the stores in which it had demanded recognition on September 24 (Emerald Bay/Tahoe #167 and Ukiah—but not Benicia or Oroville), plus three other stores in which it had not demanded recognition on September 24—South Lake Tahoe #159, Sacramento/Freeport Blvd, and Sacramento/Mack Road. (The original Mack Road petition averred that Local 588 had demanded recognition in that store on September 24; however, on October 13, 1993, Local 588 amended this petition (Lo. 588 Exh. 13(a)), to aver that such a demand had been made on October 1.) entering into a labor agreement with the new union, and also by later taking steps to enforce the union-security clause in the agreement. In a notice of hearing attached to the amended consolidated complaint, the Regional Director ordered that the trial begin on May 20, 1996. However, following two intermediate trial post- ponements thereafter (and, as well, an intensive supplemental investigation into prerecognition events conducted in and after the summer of 1996 by agents of both Local 588 and the Re- gional Director), the Regional Director ultimately issued an order scheduling the trial to begin on August 19, 1996. By the time the trial began on the latter date, the Regional Director had greatly expanded the scope of the March 29 amended consoli- dated complaint through a series of quite recent amended com- plaint pleadings (“Second Amended Consolidated Complaint,” dated August 8, 1996; “Amendment [in fact, several amend- ments] to Second Amended Consolidated Complaint,” dated August 16, 1996). The complaint underwent further expan- sions, contractions (both voluntary and involuntary), and nu- merous other mutations in the months after the trial began, ending with the “Fourth Amended Consolidated Complaint,” which issued on February 13, 1997. The case caption of this decision reflects all of these mutations, and matches the caption that appears in the fourth amended consolidated complaint. As further explained below, the General Counsel eventually conceded, after months of equivocating on the point, that the initial recognition of UDCEA/UWRU was based on petitions presented to Raley’s containing the authentic signatures of a majority of the drug clerks employed in the recognized unit, beneath language unambiguously indicating that the signers wanted to be represented by UDCEA. But the General Counsel now asserts that this majority showing was “tainted” by 20 or so distinct acts of unlawful prerecognition “assistance” alleg- edly furnished by Raley’s and/or its agents to the fledgling union. (Nearly all of the alleged acts said to have thus tainted UDCEA’s majority showing were first alleged in the above- identified trial-eve amendments to the complaint, 3 years after the fact, and other such alleged acts were not amended into the complaint until months after the trial opened.) The General Counsel further contends that the recognition and the resulting contractual relationship were themselves simply ultimate prod- ucts of UDCEA’s employer-tainted majority showing, and, therefore, the General Counsel seeks an order from the Board requiring Raley’s and UWRU to disestablish their bargaining relationship, to give no further effect to their labor agreement, and to reimburse the drug clerk unit employees for all dues or fees collected from them under color of the union-security clause, starting from the point in October 1993 when the Re- spondents first signed an agreement containing the clause. Based on findings and reasoning successively elaborated throughout the remainder of this decision, I will judge that the prosecution is almost entirely without merit, that the bargaining relationship between UWRU and Raley’s was lawfully estab- lished, and, therefore, that relationship should be left undis- turbed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394 II. THE NATURE OF THE ATTACKS ON THE RECOGNITION AND THE ISSUES RAISED BY THOSE ATTACKS Because the recognition of UDCEA/UWRU has become the principal target of this wide-ranging prosecution, it is useful to clarify further what it was about the recognition that the Gen- eral Counsel finds to have been unlawful, and, in the process, to disentangle the General Counsel’s real contentions from those that still formally appear in the ultimate version of the com- plaint. As noted, the General Counsel’s attack on the September 1993 recognition and the ensuing collective-bargaining rela- tionship between Raley’s and UWRU was first made on March 29, 1996, in an amended consolidated complaint that issued following a roughly 30-month investigation into the circum- stances surrounding the initial recognition, an investigation which included an analysis of the petition documents and com- pany payroll records bearing on UDCEA’s majority showing. In that version of the complaint, and in all subsequently amended versions, the General Counsel formally took two, alternative positions—either that UDCEA “did not represent a majority” of the drug clerks in the recognized “Drug Unit” at the time of recognition, or that it did not represent “an unco- erced majority” of them at that time.11 However, the former theory of prosecution, often called the “lack-of-numerical- majority” theory during the trial, proved to be unsupportable, despite the General Counsel’s efforts in the meantime to come up with facts or arguments supporting a numerical configura- tion that might lend some substance to the theory. And counsel for the General Counsel eventually conceded in trial sessions in February 1997, shortly before resting her case-in-chief, that the lack-of-numerical-majority theory could not be established, and had been based in the first instance on an erroneous factual premise—that there were fewer signatures on the UDCEA peti- tions relied on by Raley’s than there actually were.12 In fact, the General Counsel now affirmatively concedes that the petitions relied on by Raley’s to grant recognition to UDCEA contained, in the aggregate, authentic signatures from a majority of the drug clerks employed in the recognized unit at the time of recognition, no matter how that unit might be more precisely identified. However, whether the signatures reflected a comfortable showing of majority support for UDCEA, or 11 The alternative theories were set forth in a curiously back-looking phrase tucked into a sentence appearing in subpar. (d) of par. 29 of the March 29, 1996 amended consolidated complaint. (The same allegation appears in the same paragraph in all subsequently amended versions of the complaint.) The critical sentence states in material part as follows (my bracketed inserts, italics, and other editing): “Respondent Raley’s engaged in the conduct described above in subparagraphs 29(a) through (c) [i.e., ‘grant[ing] recognition to Respondent UWRU’ on September 23, and later entering into a labor agreement with that respondent] even though Respondent UWRU did not represent [1] a majority or [2] an uncoerced majority of the Drug Unit.” 12 These findings are based on counsel for the General Counsel’s representations during trial sessions on February 4 and 10, 1997, during which she stated that what she called the “mistake” in the Region’s counting occurred because some of the petitions surrendered by Raley’s to the Regional Director (in April 1995, in compliance with a court- enforced investigative subpoena) had been “misplaced” in the Regional Office by the time the signature count was made, and, consequently, the signatures on the “missing” petitions were not included in the count. perhaps a squeakier one, is still a matter of vigorous contest between the parties. And a determination of the precise dimen- sions of UDCEA’s numerical majority showing depends on the resolution of a variety of “head-count” disputes, each of which affects, in turn, both the numerator and the denominator to be used in the final fractional calculation of majority status. The principal head-count questions, all focused on the status of things as of about 6 p.m. on September 23, 1993 (when Raley’s official Abfalter signed and dispatched for commercial courier delivery the letter to Ed Wright recognizing UDCEA), are as follows: (1) Were the drug clerks in the Yreka drug cen- ter intended to be part of the recognized unit? (2) Were certain employees doing get-ready work in the not-yet-open Elk Grove drug center intended to be included in the recognized unit? (3) Should certain inactive drug clerks on disability related ab- sences from the job be counted as employees in the unit? (4) Should certain (concededly authentic) UDCEA petition signa- tures dated “September 23,” but not clearly received by Raley’s prior to the moment when Abfalter signed the recognition let- ter, be counted as evidence that UDCEA “in fact” enjoyed ma- jority support at the time of recognition? (5) Were five pur- ported signatures (including the purported signatures of two Yreka drug clerks) unauthorized forgeries? (6) How do you count (or not count) one petition signer’s apparent attempt to revoke her signature when the writing purporting to express that revocation was not dispatched to Raley’s until 4 days after the recognition? It bears repeating, however, that the General Counsel now concedes that even if all such questions were resolved in the prosecution’s favor, the number of remaining, concededly au- thentic petition signatures of conceded unit employees would still amount to a numerical majority of the employees in the recognized unit, even as the General Counsel seeks to define that unit (by excluding Yreka employees, but including Elk Grove employees and employees on disability leave). Specifi- cally, the General Counsel concedes that 339 drug clerks in a (prosecution-defined) “unit” of 670 drug clerks (i.e., 3 more than needed for a “bare” majority showing of 336) had signed UDCEA petitions that were in Raley’s hands when it conferred recognition on UDCEA. (See GC Exh. 182, p. 1.) I judge, although with considerable reluctance, considering the many distractions involved, that the particulars of these various head-count disputes deserve particularized resolutions, if for no other reason than to obviate the need for a remand for that purpose, should the Board or any other reviewing body disagree with any of the findings or analyses below that have led me to my ultimate conclusion regarding the central issue— that the General Counsel has failed to sustain the prosecution burden of demonstrating that UDCEA’s majority showing was “coerced” or otherwise “tainted” by acts of unlawful prerecog- nition “assistance” on the part of Raley’s or its agents. How- ever, to minimize the distraction, I have set forth my findings, analyses, and conclusions regarding these head-count matters in a separate appendix to this decision (Appendix “A”). For rea- sons explicated in that appendix, I will largely reject as an ex- ercise in gerrymandering the General Counsel’s proffered defi- nition of the scope of the recognized unit. And I will count more UDCEA petition signatures (including signatures claimed RALEY’S 395 by the prosecution to be forgeries) than the General Counsel wants me to count. But I will agree with the General Counsel that the recognized unit included certain inactive employees on disability related leaves. And these judgments, coupled to other necessary tweakings of the otherwise agreed-on numbers, will lead me to find in the end that 673 drug clerks were in the rec- ognized unit at the time of recognition, and that 355 of them had signed UDCEA petitions by the point when Raley’s recog- nized UDCEA—all of this yielding an “objective” majority (or a “majority-in-fact”) of 18 more petition signatures than needed by UDCEA for a “bare” majority showing of 337 signatures. III. EXPANDED SUMMARY A. The Corporate Hierarchy Raley’s is a closely held California corporation with business headquarters and central distribution warehouses in Sacra- mento. The corporation’s shares are owned or controlled by Louise Raley Teel, the daughter of the now-deceased founder, Tom Raley. She is also a cochair of the corporate board, shar- ing the chair with her husband, James Teel. Neither Louise nor James Teel had any day-to-day responsibilities for the opera- tion of the business at times material to this case. However, James Teel was involved in several top-level management con- sultations and actions in the 9-day period after the IDCA dis- claimer and prior to the recognition of UDCEA/UWRU, and was also the signer of a letter to employees mailed on Septem- ber 15, 1993, soon after learning of the disclaimer and of the efforts of drug clerk Ed Wright to secure the petition signatures that Raley’s eventually relied on to recognize UDCEA/UWRU. Charles Collings was the corporation’s president and chief executive officer at all material times, however his role in the case is marginal, unlike the role played by his brother, Kenneth Collings, who was the Company’s chief labor relations spokes- person at all material times until sometime in midlate August 1993, when he retired and was succeeded by Daniel Abfalter, a key management player at the time of recognition. Both Ken- neth Collings and Abfalter reported at material times to Sam MacPherson, a vice president in charge of personnel and labor relations, whose own individual actions also figure in the case, but only marginally. B. The Drug Center Operations Although the Raley’s chain includes some stores in Nevada, we are exclusively concerned with the Company’s operations in California, particularly the drug center operations. When Raley’s first recognized UDCEA/UWRU in September 1993, it operated 51 drug centers within its California supermarkets, and was preparing to open another supermarket/drug center, in Elk Grove, in late October. These stores are scattered through- out the northern half of the State, all the way to the border with Oregon, but many are located within or on the suburban fringes of the city of Sacramento. And many others are located within a roughly 80-mile radius of the Company’s headquarters build- ings in “downtown” Sacramento, in small towns and cities along either the Interstate 80 corridor connecting San Francisco Bay and the Delta polderland to the west of Sacramento with the Sierra mountains and Lake Tahoe and the Nevada border to the east of Sacramento, or in towns along the Interstate 5 corri- dor, which runs north-south of Sacramento, in the inland Val- ley. The drug centers are each sited in a Raley’s supermarket, but they occupy distinct floor space, featuring a pharmacy, and they have their own, separate arrays of shopping aisles and check stands. The drug centers function not simply as outlets for the sale of prescription drugs and over-the-counter (OTC) medica- tions, but more generally as variety stores, carrying such di- verse lines as cosmetics, school supplies, home and garden, and other “outdoor” products, cameras, appliances, and electronic gear. (There was a time when Raley’s referred to what are now called drug centers as “Drug and Family Centers.”) While there are no physical barriers between the grocery and drug center sales floors, each side has its own, separate “backroom,” or “receiving area.” The drug center backrooms are typically used for receiving, storing, and marking drug center products before they are brought to the sales floor. They also contain bulletin boards or wall space where work schedules, employee time- sheets, and notices and memoranda to employees are posted. They also house a breakroom for drug clerks. Moreover, it is through the swinging double-door entrances from the drug center sales floor into the backroom that one can gain access to a warren of offices, often located on an upstairs level, most of which are reserved for use by drug center and grocery “manag- ers” of all stripes, and some others of which are used by drug clerks or grocery clerks for work or for breaks. C. The Drug Clerks and their Managers; the Disputed Status of “Second Assistants” The nonsupervisory employees who work in the drug cen- ters, other than the registered pharmacists, are generically re- ferred to as “drug clerks.” This is a broad category; it includes not only “pharmacy clerks,” who assist the pharmacists within the prescription-filling area (or “cage”) behind the pharmacy counter, but others who perform specialty sales-clerk functions associated with certain nonpharmaceutical products, such as cosmetics and cameras. The category also encompasses check- ers, stockers, inventory “scanning clerks,” and virtually all other drug center workers except “security” personnel, who, apparently, are not a constant presence in the stores, but make periodic visits to each store, according to an uncertain rota- tional scheme. The management team for each drug center is comprised of a drug center manager and several “assistant” managers. Under Raley’s management classification scheme and its management development programs as they had evolved by 1992–1993, “assistant” managers in the drug centers were further subclassi- fied as either a “Senior Assistant” (one per drug center, some- times also called the “First Assistant” or, simply, “the Assis- tant”) or as a “Second Assistant” (up to three per drug center). These managerial classifications and titles also betoken a hier- archy of authority and pay level within the drug center man- agement team. Raley’s admits that the drug center manager and the senior assistant manager in each drug center are “supervisors” within the contemplation of Section 2(11) of the Act, and are its “agents.” However, there is a marginal contest over Raley’s responsibility for the actions of its second assistants, a respon- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396 sibility which would clearly attach if the second assistants were statutory supervisors, but a responsibility which would also attach simply if they could be found to have functioned as managerial “agents” of Raley’s. (In the end, the contest is chiefly about Raley’s responsibility for the statements and ac- tions, on September 18, 1993, of Mike Wallis, one of three second assistants at the Benicia drug center.) I deem it an un- necessary distraction to determine whether or not Wallis or other second assistants are statutory supervisors, for Raley’s necessarily concedes that second assistants are part of its “in- ternal [management] hierarch[y],” even as it simultaneously insists that they occupied the “lowest rung on the managerial ladder.”13 And the undisputed evidence of record (including, not least, the various handbooks and other written criteria used by Raley’s in connection with its management classification, training, and evaluation programs) also clearly shows in the aggregate that second assistants were expected by Raley’s to perform traditional store—and employee-management func- tions in Raley’s interest—indeed, that a second assistant was sometimes the only “management” figure in a drug center dur- ing certain shifts or significant portions of a shift. In addition, the record shows that second assistants (along with the drug center manager and senior assistant) participated in regular “management meetings” in their respective stores, that they wore distinctive ties and vests (and even nameplates identifying them by their managerial title), that they were entrusted with cash register and store keys, and the authority to approve ques- tionable checks, and that they were generally held out by Raley’s as speaking and acting with the authority of the com- pany in their dealings with both the shopping public and the employees in the drug centers. Moreover, the record shows that all persons denominated as “managers,” including second assis- tants, were historically excluded from the IDCA-represented unit of drug clerks, and were likewise excluded from that unit when Raley’s recognized and later entered into collective- bargaining agreements with UDCEA/UWRU. Under all these circumstances, therefore, even assuming that the second assis- tants did not have enough effective authority to qualify them as statutory supervisors, they were clearly held out as managerial agents of Raley’s for all purposes that concern us, and thus Raley’s cannot legitimately disavow responsibility for their statements or actions taken in the course of discharging their managerial responsibilities. See, e.g., CDR Mfg., 324 NLRB 786 (1997), and authorities cited; Southern Bag Corp., 315 NLRB 725 (1994), and authorities cited. D. The Separate Dispute Between Local 588 and Raley’s in the” Grocery Cases” In the second half of 1992, when the events underlying this prosecution were beginning to unfold, Local 588 and Raley’s were already locked in a separate labor dispute relating to Local 588’s attempts to organize grocery employees in certain of Raley’s existing “nonunion” supermarkets, i.e., stores that were conceded to be outside the coverage of the multiemployer labor 13 Thus, Raley’s asserts (Br. 101): “From an internal hierarchical standpoint, there is no question that Second Assistant Managers, in- cluding Wallis, occupy the lowest rung on the managerial ladder.” agreement with Local 588 to which Raley’s was a party. At the heart of this dispute was Raley’s refusal to comply with Local 588’s demands, themselves based on a disputed interpretation of certain “Grocery Agreement” contract language and past practice, to submit to a “card-check” procedure as a basis for voluntary recognition of Local 588 as the representative of grocery employees in certain of those previously “nonunion” stores. This 1992 dispute led eventually to a separate consoli- dated prosecution by the General Counsel against Raley’s (the “Grocery Cases”), which prosecution was initially set for trial in the summer of 1993, but which, for a variety of reasons, did not come to trial until April 1998, before Administrative Law Judge Jay R. Pollack. In October 1998, Judge Pollack issued a decision finding no merit to the consolidated complaints in the Grocery Cases,14 and his decision is now pending before the Board on the General Counsel’s and Local 588’s exceptions. E. The “IDCA” Cases: Local 588’s Alliance with Eidam/IDCA; the “Visitation” Disputes; the Emergence of a Dissident “Rump Group” As previously noted, during the same period in 1992, the nonsupervisory employees in the California drug centers were represented by an unaffiliated labor organization, IDCA, in two statewide units, one for drug clerks,15 the other for registered pharmacists. The bargaining relationship between IDCA and Raley’s had been in existence for 30 or more years, tracing at least from a 1963 Board certification of IDCA in a multistore unit consisting of all the then-existing drug centers in California (as found in Raley’s, Inc., 256 NLRB 946 (1981), discussed further in part two), but possibly tracing originally from an even earlier voluntary recognition in a unit of uncertain scope. 14 See Raley’s, JD(SF)–106–98 (1998). 15 In support of a head-count analysis ultimately aimed at showing that only a narrow majority of drug clerks had signed petitions desig- nating UDCEA as their bargaining representative at the time of initial recognition, the General Counsel seeks a finding that the recognized unit as of September 23, 1993, did not include the drug clerks working in a single drug center in Yreka (the northernmost store in the chain, close to the Oregon border), but did include all the drug clerks in all the other drug centers in California (including persons employed to do get- ready work in the not-yet-opened drug center in Elk Grove). As elabo- rated in Appendix A, the General Counsel’s position that Yreka drug clerks were excluded from the recognized unit relies at bottom on two circumstances—first, that a parenthetical phrase in the initial recogni- tion letter from Raley’s to UDCEA depicted the recognized unit as being “coextensive with the unit previously represented by the IDCA”; second, that, historically, IDCA and Raley’s, while negotiating a master agreement document containing recognition language applicable to all the California drug centers, had nevertheless signed a separate agree- ment document containing pay rates specifically applicable only to Yreka drug clerks. For reasons amplified in Appendix A, I think the General Counsel’s claim that the separate contract document for Yreka created a separate bargaining unit for the Yreka drug clerks is untenable on its own factual and legal merits, and is essentially irrelevant in any case, not least because, in a passage in the September 23 UDCEA rec- ognition letter preceding the parenthetical expression relied on by the General Counsel, Raley’s had unmistakably indicated its intention to recognize UDCEA as the exclusive representative of all “individuals working as Drug Clerks in our Northern California Drug Centers.” RALEY’S 397 Gilbert Eidam, a registered pharmacist at the Roseville (Sac- ramento-area) drug center at material times, was elected presi- dent of IDCA in July 1992, and he actively assumed the office in August 1992. IDCA and Raley’s were then bound to a labor agreement covering the California drug clerks that was due to run through October 3, 1992. Starting on or about October 1, 1992, IDCA entered into negotiations with Raley’s for a suc- cessor labor agreement for the drug clerks, and the parties agreed at the outset to extend the application of the predecessor agreement pending the conclusion of a new contract. However, the parties still had not reached a new contract 11 months later, when Eidam disclaimed IDCA’s further interest in representing the drug clerks. An alliance between Local 588 and IDCA first took visible form in October 1992, when the drug clerk bargaining sessions began, and when executive-level agents of Local 588 first ap- peared, at Eidam’s invitation, as principal members of IDCA’s bargaining team. This was an arrangement that Raley’s almost certainly did not welcome, but Raley’s nevertheless acquiesced, and there is no contention that Raley’s behaved unlawfully in the conduct of its bargaining with IDCA during the ensuing months of ultimately unsuccessful efforts to reach a new agreement. Early on, however, on October 19, 1992, Eidam wrote to Raley’s advising that the 30 business agents, organizers, and other variously titled representatives on Local 588’s profes- sional staff would now serve as IDCA’s “designated represen- tatives” and “full[y] authoriz[ed] Business Representatives” for purposes of “servicing our collective bargaining agreement,” including for purposes of exercising store-visitation rights un- der section 10 of the IDCA contract. Eidam also used the ser- vices of the law firm (Davis, Cowell & Bowe) that represented Local 588, both then and now; and he authorized attorneys in that firm to sign and file the charges underlying the first two cases listed in the caption, pursuant to which the General Coun- sel attacks, among other things, Raley’s reactions in October 1992 to visitations conducted by Eidam-deputized Local 588 agents to three of the many drug centers where such visitations took place. In addition, at an uncertain point in or shortly before October 1992, Eidam had advanced a proposal to the member- ship to “incorporate” IDCA. This was an initiative that both Raley’s and certain dissident members of IDCA suspected was a device calculated to permit Local 588 to take effective control over IDCA. It was also an initiative that Eidam apparently abandoned some months later. On the heels of Eidam’s October 1992 designation of Local 588’s agents as IDCA’s business representatives, these agents paid calls on many of the drug centers, leading, in two cases, to confrontations with drug center managers that ended with local police intervention, the eviction of the agents, and their citation for trespass, and, in another case, to threats of such eviction and citation. The actions of the drug center managers in these in- stances are alleged as violations of Section 8(a)(5), because they are said to have implicated Raley’s in an unlawful “unilat- eral change” in the “terms and conditions of employment” of the employees in the drug centers. Some of the managers’ ac- tions incidental to the confrontations are also alleged to have independently violated Section 8(a)(1), because they were committed in the presence of employees. For reasons set forth in part three, I will find no merit to any of these allegations. Local 588 saw its “assistance” to IDCA in and after October 1992 as a form of “organizing” among the drug clerks for the ultimate purpose of supplanting IDCA as their representative. Eidam evidently shared the same goal, but exactly when Eidam first became persuaded that the drug clerks would be better served by Local 588 than IDCA is a matter for inference. (He was never directly asked the question during his day-long tes- timony.) That he was so persuaded, however, is implicit in a letter he wrote to the California drug clerks as early as October 24, 1992 (GC Exh. 154, infra), and is made unmistakable by his letter to drug clerks on September 14, 1993 (GC Exh. 52, infra), announcing the disclaimer, describing himself as “excited over [that] action,” and commending Local 588 as a worthy succes- sor representative. It is clear that a dissident faction (or “rump group”) of drug clerks that began to take form in October 1992 saw Eidam’s initiatives as portending a Local 588 takeover of IDCA, and employees in this “anti-affiliation” faction soon began a variety of actions to counter those initiatives. Raley’s, too, greeted these October 1992 developments with no little suspicion that they heralded an attempted takeover of IDCA by Local 588, and the Company’s then-chief labor relations spokesman, Ken- neth Collings, weighed in with the Company’s own dim views on the subject in a memorandum to all drug clerks dated Octo- ber 23, 1992. This memo is the target of multiple attacks in the complaint, but for reasons discussed in part three, I will find no merit to these attacks, judging instead that the memo contained no more than lawful expressions privileged by Section 8(c) of the Act. F. The Disclaimer; the Formation of UDCEA; the Rival Organizing Drives; the Recognition of UDCEA On September 14, 1993, following nearly 11 months of in- conclusive negotiations and an apparent impasse, Eidam sent a letter to Raley’s disclaiming IDCA’s interest in representing the drug clerks, and a separate letter to employees in the unit in which he characterized IDCA as a union dominated by Raley’s and urged that the drug clerks now seek representation through Local 588. The authoring and publication of these parallel documents—one purporting to constitute an official act of the very organization, IDCA, which was denounced in the other as being a captive of Raley’s—marked Eidam’s effective disap- pearance from the labor relations picture. He soon resigned from his IDCA presidency, but stayed on with Raley’s as a pharmacist, only to be fired about a year later. The lawfulness of his discharge is not called into question, but the circum- stances of his discharge might arguably bear on the trustworthi- ness of the testimony he offered in the trial. I have not relied on those circumstances in reaching the judgment that Eidam was, overall, an unreliable witness. Rather that judgment is based exclusively on his unimpressive demeanor and his otherwise generally sorry performance on the witness stand. The September 14 disclaimer was clearly intended by Eidam, and was treated by all parties, including the surviving IDCA organization under new leadership, as having the legal effect of leaving the California drug clerks without union representation, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398 and thus at liberty to choose to remain unrepresented, or to seek representation from another union.16 In the circumstances, I must likewise embrace this threshold assumption for purposes of further analysis. The disclaimer occurred only a few weeks after those IDCA drug clerk members who attended meetings held to discuss and vote on Raley’s last contract offer had re- jected that offer, but by only a fairly small margin. Following this, on September 1, Raley’s announced it would implement the terms of its last offer, including the pay increases contem- plated in that offer, stating also that it hoped this implementa- tion might cause IDCA to conduct a “revote.” (Such a revote was never conducted.) The disclaimer also followed several months during which Eidam’s leadership had come under in- creasingly intense challenge by a growing number of dissidents within the IDCA drug clerk membership, a group by then led mainly by Edwin Wright, a drug clerk in the Grass Valley drug center. Indeed, at various points during the trial, counsel for each of the parties referred to the months preceding the dis- claimer as a period marked by a virtual “schism” within IDCA’s drug-clerk membership ranks, with one faction aligned behind Eidam, and the other behind Wright, who, after the dis- claimer, became the key figure in the forming of UDCEA and in its successful drive to obtain recognition, and who became, as well, the president of UDCEA, and, in turn, of its renamed counterpart, UWRU.17 16 Raley’s, UWRU, and IDCA (under current leadership) variously offered to prove that Eidam was not empowered under IDCA’s consti- tution and bylaws to take certain other actions in IDCA’s name during his presidency, such as authorizing the filing of charges by Davis, Cowell & Bowe attorneys, or deputizing Local 588’s agents to function as IDCA business representatives. (As further noted below, I barred litigation of such questions.) However, no party has contended that the disclaimer itself was such an ultra vires act. Indeed, underlying both the prosecution’s attacks on the recognition of UDCEA/UWRU and the respondents’ defenses to those attacks is the common supposition that the disclaimer was effective and binding on IDCA, and thereby left the drug clerks without union representation and free to select a new union if they wanted one. 17 In trial-eve amendments to the complaint, the Regional Director alleged for the first time, inter alia, that Raley’s had violated Sec. 8(a)(2) and (1) by, “provid[ing] financial assistance” to Wright on “unknown dates from about November 1992 to the present.” See GC Exh. 2(hh), the “Amendment [sic] to Second Amended Consolidated Complaint,” dated (Friday), August 16, 1996. This amendment was itself later particularized, trimmed and otherwise reshaped in subse- quent pleadings as the trial wore on. However, on February 10, 1997, the General Counsel, having earlier examined Wright on the witness stand concerning such matters, withdrew the “financial-assistance-to- Wright” allegations entirely. Moreover, counsel for the General Coun- sel further conceded in a later session on March 18, 1997 (after having rested her case-in-chief), that the prosecution had introduced no evi- dence that might suggest that Raley’s had in any way influenced or otherwise “put-up” Wright to oppose Eidam’s leadership in the predis- claimer period, or to form UDCEA as a rival to Local 588 in the after- math of Eidam’s disclaimer. Accordingly, for all purposes below, I will assume, consistent with Wright’s testimonial accounts, that his predis- claimer opposition to Eidam’s leadership, and his postdisclaimer form- ing and activities on behalf of UDCEA/UWRU, were grounded in nothing more than his personal conviction that the representational interests of the drug clerks would be better served by an “independent” (i.e., unaffiliated) union, composed alone of Raley’s drug clerks, than Local 588 had received advance notice that Eidam would is- sue the disclaimer, and on September 17, 3 days after Eidam published the disclaimer, Local 588 sent out a mass mailing to the home addresses of all the California drug clerks (GC Exh. 125 is a specimen), urging them to sign enclosed cards desig- nating Local 588 as their representative. (This mailing is to be distinguished from a postrecognition mailing, in which, as pre- viously noted, Local 588 invited employees to sign cards for Local 588’s “UDCEA,” asserting that the organization thus named had already been recognized by Raley’s.) In the after- math of Local 588’s first mailing on September 17 (almost entirely after Monday, September 20, and continuing well be- yond the recognition of UDCEA on Thursday, September 23), Local 588’s agents, sometimes using grocery clerk members as their intermediaries, made contacts with some drug clerks known or believed to favor representation by Local 588, and to plan with these contact people to hold further organizing meet- ings, many of them to be held at pizza parlors in the vicinities of some of the drug centers. However, a group of former anti-Eidam dissident drug clerks, led by Wright, had even more quickly mounted an orga- nizing drive in the name of their hastily formed rival organiza- tion, UDCEA. This campaign began on September 15, after Wright received Eidam’s letter to the drug clerks announcing the disclaimer. The same afternoon, Wright called Abfalter, Raley’s newly installed labor relations chief, and advised him of the new Union’s formation and organizing plans. Abfalter told Wright that Raley’s would recognize the new Union if it could demonstrate majority support. Later that afternoon, in an action that is not attacked by the complaint, James Teel, the cochair of Raley’s corporate board, issued a letter to all drug clerks in which he, (a) effectively depicted Eidam’s disclaimer as a device to help Local 588 achieve its organizational aims for the drug clerks, (b) publicized the existence of Wright’s UDCEA organizing effort (without specifically naming Wright or his new organization), and (c) stated that Raley’s was pre- pared to recognize that new union, or “any union” that a major- ity of the drug clerks might “designate.” Teel and other Raley’s executives were admittedly aware that Local 588 was then or soon would be mounting its own organizing and card-signing campaign. And Teel’s letter to the drug clerks, although con- taining no threats or promises, implicitly conveyed both the company’s antipathy to the prospect of Local 588 becoming the drug clerks’ representative and its preference that they be repre- sented instead by the newly formed “independent” union.18 During the first few days following the disclaimer, the UDCEA petition copies prepared originally by Wright on Sep- by Local 588, affiliated with an International Union with vastly larger membership, and whose own 26,000-member constituency was domi- nated by grocery and meat department employees working in the mul- tiemployer bargaining unit further described in part two. 18 At p. 9 of its brief, Raley’s has readily acknowledged something that is made plain over and over on this record—that “animus existed between Raley’s and Local 588.” Moreover, Raley’s makes no bones about its preference for UDCEA/UWRU. On p. 232 of its brief, it ac- knowledges that “the record is replete with . . . direct evidence of [such] preference, most notably Teel’s [September 15, 1993] memo to the Drug Center employees.” RALEY’S 399 tember 15 were distributed and circulated between and among many of the drug centers by Wright and by other drug clerk allies. In several cases, the petition forms were initially trans- mitted (by Wright and some of his employee-allies) between drug centers via fax machines in the stores, especially those in the pharmacies, and, apparently in most such cases, with the knowledge of sympathetic pharmacists, who were represented by the still-viable pharmacy wing of IDCA. Wright also used a telephone in his own drug center in Grass Valley (and in a nearby one in Yuba City) to make initial and followup contacts with certain of his employee-allies at other stores. When the senior assistant manager at Wright’s Grass Valley drug center confronted Wright on September 18 over “rumors” that Wright had thus used company “equipment” in his early organizing activities, Wright admitted this, and received a “verbal warn- ing” that this was against company policy. On September 21, 3 days later, Wright nevertheless used a telephone in the Grass Valley manager’s office to make another contact with an em- ployee-ally elsewhere. The drug center manager caught Wright in the act, however, and quickly issued a formal, written “Warning Notice” to him. The written warning notice, un- precedented for dealing with violations by employees of the Company’s official policy against using the store faxes or phones for purely “personal” (or “non-Raley’s”) business, threatened that any such further violations could result in disci- pline, “up to and including termination.” The General Counsel, echoed by Local 588, argues that these warnings were merely “sham” gestures, and the General Counsel takes the position that Raley’s owed a legal “obligation” in the circumstances to “punish” Wright more severely—specifically by “refusing to consider” any of the signatures on any UDCEA petitions that were originally faxed between stores in blank form. For reasons largely explicated in part five and recapitulated in part six, I remain quite unpersuaded by these arguments. During the ensuing period preceding the recognition, more than 350 drug clerks signed UDCEA petitions, all apparently before Local 588’s agents had begun to make any substantial personal organizing contacts of their own. (Apart from the hopelessly and studiedly vague testimonial representations made by Local 588’s organizing director, Jacques Loveall, the record contains no reliable indication that Local 588 had ob- tained authorization cards from drug clerks in any significant numbers at any point prior to the September 23 recognition of UDCEA.) As the UDCEA petitions filled up with signatures, they were transmitted to Raley’s headquarters in Sacramento by a variety of devices, but in many cases by fax transmission from a store fax machine. In some known cases of record, Wright or one of his drug clerk allies did the faxing; in other cases, the transmission to headquarters was apparently done by a drug center manager to whom such signed petitions had been given personally by a drug clerk, with a request that the man- ager transmit them to headquarters. The General Counsel now asserts (beyond the pertinent allegation in the complaint) that Raley’s gave unlawful assistance to UDCEA by thus “permit- ting” both employees and managers to use fax machines to transmit signed petitions to headquarters, and that this particu- lar form of “assistance” further “tainted” the signatures on the petitions. For reasons discussed in both parts five and six, I again remain unpersuaded. By the late afternoon of September 23, 1993, Raley’s had al- ready received at its Sacramento headquarters copies of UDCEA petitions signed by a majority of the drug clerks in the California drug centers. By about 5 p.m. the same afternoon, Raley’s had also received a faxed letter from Wright demand- ing recognition of UDCEA as the drug clerks’ statewide bar- gaining agent. Raley’s clearly had been poised to recognize UDCEA if and when it could demonstrate majority support, and it lost no time in responding to Wright’s demand letter: By about 6 p.m., Abfalter had signed and dispatched for transmis- sion by commercial courier a letter to Wright conferring recog- nition on the fledgling union, which was delivered to Wright at his home the next morning. G. The New Drug Clerks Agreement and Subsequent Developments A few weeks later, on or shortly before October 18, Wright and his UDCEA cofounders, now faced with Local 588’s threats of lawsuit for using the “UDCEA” name that Local 588 had coopted in the meantime, decided to rename their new un- ion UWRU, and so notified Raley’s on October 18. Then, on or shortly before October 24, Raley’s and UWRU concluded a comprehensive collective-bargaining agreement, which they signed on October 24. Consistent with historical patterns, the agreement was embodied in two separate documents. One was a master agreement generally applicable on its face to all drug centers in California, but whose hourly pay terms applied to all California drug centers except Yreka. The other document was facially applicable only to the drug clerks at Yreka.19 (Again, the only material “difference” in language or in the terms and conditions of employment as set forth in the respective docu- ments was that the hourly pay rates listed in the Yreka docu- ment were lower than those listed in the master agreement for the same job classifications.) For reasons elaborated in Appen- dix A, I will treat and refer to these documents for all purposes below as amounting to a single, comprehensive agreement cov- ering a recognized statewide unit that included Yreka drug clerks. The agreement contained a union-security provision. (The prior succession of IDCA agreements had always con- tained such a provision, as well.) In the months and years that followed, UWRU took various steps at various times to publi- cize and threaten to enforce the union-security clause. The original UWRU agreement was due by its terms to ex- pire on September 28, 1996, but it contained a provision for wage-reopener negotiations after its first anniversary. Raley’s and UWRU entered into such negotiations in October– November 1995, well before the General Counsel, through the Regional Director, decided (on March 29, 1996) to attack the underlying recognition as unlawful. As a consequence, on No- vember 29, 1995, those parties signed a “supersed[ing]” agree- ment, made retroactive to October 1, 1995, and due to run through September 26, 1998. Accordingly, by the time these 19 In fact, the parties executed two sets of contract documents, one set identifying UDCEA as the union signatory, and the other set identi- fying UWRU as the union signatory. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400 cases were brought to trial—indeed, by the time the General Counsel first challenged the lawfulness of the September 1993 recognition, the collective-bargaining relationship between Raley’s and UWRU was already nearly 3 years old, and had produced not only an original labor agreement, but a successor agreement. H. The Real Scope of the Complaint As I have already indicated, the ultimate version of the com- plaint (the fourth amended consolidated complaint) charges Raley’s with having committed an extensive number and vari- ety of unfair labor practices, beginning as early as October 1992, when IDCA still represented the drug clerks, and con- tinuing through dates in 1995, when UWRU had been the rec- ognized representative for nearly 2 years. Considering this, I find it remarkable that counsel for the General Counsel opens her brief with the following two statements: “The gravamen of the Fourth Amended Consolidated Complaint . . . is that on September 23, 1993, Respondent Raley’s . . . unlawfully recog- nized Respondent United Wholesalers & Retailers Union. . . . At issue is whether Raley’s violated Section 8(a)(2) and (1) . . . by unlawfully assisting and recognizing UWRU/UDCEA fol- lowing the September 14 disclaimer of interest by the Inde- pendent Drug Clerks Association[.]” Clearly, it is a glibly dis- torted characterization of the wide variety of allegations set forth in the ultimate complaint to say that the complaint’s “gravamen” is its attack on Raley’s recognition of UDCEA/ UWRU, and to say that the only “issue” raised by the ultimate complaint is the lawfulness of the recognition under Section 8(a)(2) and (1). (Would that this were so! It would have re- quired a trial about one-fourth as long as was actually required, and it would have taken me about one-fifth of the time I have been required to take to analyze and dispose of the enormous number and variety of allegations and other claims actually raised by the General Counsel in this case.) Nevertheless, the General Counsel’s use of gravamen, and the suggestion that the complaint raises only a single underlying “issue” are both roughly apt if understood as an implicit expression of the Gen- eral Counsel’s and Local 588’s common, overriding aim in this wide-ranging prosecution—to discredit the recognition and thus to disestablish the bargaining relationship stemming from the recognition. The ultimate complaint also charges that Raley’s committed additional 8(a)(2) violations after the recognition. One such count, first amended into the complaint 10 days before the trial began, and later trimmed and otherwise reshaped in its particu- larizations, now alleges centrally that “at an unknown time in [October–November] 1993 . . . Raley’s, by its attorney-agent, Henry Telfeian, provided legal assistance to [UWRU].” (It has never been in dispute that Telfeian offered and provided certain postrecognition legal counsel and assistance to the fledgling union. What remains in hot dispute is whether “Raley’s” was the real actor in the “providing” of Telfeian’s services, i.e., whether, as alleged in the complaint, Telfeian was acting as an “agent” of Raley’s when he performed these services. I will find no evidentiary basis for reaching any such conclusion; accordingly, I will dismiss this count.) Other counts attack the fact that Raley’s soon entered into a collective-bargaining agreement with UWRU containing a union-security clause, and later took certain actions to enforce the union-security clause. UWRU is charged with both parallel and independent viola- tions of Section 8(b)(1)(A) and (2) for its own role in accepting recognition, entering into the labor agreement, and enforcing the union-security clause. As may be apparent, the merit, or lack of same, of most of the General Counsel’s attacks on the postrecognition conduct of Raley’s and UWRU will turn on the lawfulness of the recognition itself.20 With one small exception (involving a “verbal warning” to IDCA’s Eidam in April 1993), I will find no merit to any of the many attacks made in the complaint (or otherwise) against the conduct of Raley’s and its agents in the late 1992 early 1993 period covered by the “IDCA” charges. And with only two small exceptions I will find no merit to any of the many attacks made against the conduct of Raley’s and its agents in the 9-day period following the disclaimer and preceding the recognition of UDCEA/UWRU. One of the exceptional cases involves a conversation between a local manager and a drug clerk in the Placerville drug center concerning the absence of signatures on a “petition.” The other involves a “verbal warning” (which was never subsequently enforced) by a store manager to a pro-Local 588 drug clerk at the Fair Oaks drug center not to wear a Local 588 button on his work uniform—a transaction, incidentally, which was never alleged in the complaint as a violation. I will find that in both such instances, the local managers implicated Raley’s in violations of Section 8(a)(1). But these transactions both occurred at drug centers where no employees ever signed a UDCEA petition (at least none ever received by Raley’s), and the managers’ statements in each instance could not in any way be said to have “tainted” the signatures of employees at other drug centers who did sign UDCEA petitions, and on whose signatures Raley’s relied when it conferred recognition on UDCEA. Accordingly, I will further find that the conduct in question, considered against the “totality of the circumstances,” and measured against the applicable caselaw, could not have raised serious questions of employer contamination of the peti- tion-signatures on which the initial recognition was premised. PART TWO: THE PROCEDURAL AND LABOR RELATIONS BACKGROUNDS REVISITED I. PROCEDURAL MATTERS A. The Respondents’ Requests for Tiidee Sanctions and Related Matters Literally hundreds of procedural and casehandling develop- ments have affected the evolution—and, as well, the partial 20 In fact, there are only two exceptions: The first is the allegation that “Raley’s” (through attorney Telfeian) unlawfully provided “legal assistance” to UWRU after the recognition. The other involves a series of counts alleging, in substance, that UWRU unlawfully invoked the union-security clause to compel certain employees who had lost mem- bership due to arrearages on their UWRU dues to pay what the General Counsel treats as a “penalty” fee on top of the arrearages as a condition of being reinstated to membership. RALEY’S 401 devolution—of this attenuated prosecution.21 It would be need- lessly distracting to attempt to exhume and exhaustively cata- logue these matters in the context of this decision. Moreover, in some respects, such an enterprise might be inappropriate, be- cause some aspects of the procedural and casehandling back- ground are implicated by the Respondents’ claims, as set forth at some length in their respective briefs, for monetary sanctions against the General Counsel for alleged “frivolous litigation,” under the remedial principles established in Tiidee Products, 194 NLRB 1234 (1972), and progeny. And some of these mat- ters may also be implicated if the Respondents—or Ed Wright or Henry Telfeian personally—follow through on their stated intentions, expressed at various points in the trial proceedings (and in UWRU’s brief), to seek reimbursement of costs and fees from the Board pursuant to the Equal Access to Justice Act (EAJA), 3. U.S.C. Section 304. Both claims need to be addressed at the outset. First, con- trary to the Respondents’ claims under Tiidee, the Board seems to have made it clear in Irwin Industries, 325 NLRB 796 (1998), that Tiidee sanctions cannot be imposed against the General Counsel or against any party other than a “respon- dent.”22 Accordingly, it is unnecessary to treat any further with 21 A relative few of these developments are sought to be captured in the lengthy preamble to the fourth amended consolidated complaint, as follows: Upon charges filed on October 28, 1992, March 2, 1993, and May 18, 1993 in Cases 20–CA–24973, 20–CA–25195–1, and 20– CA–25354 by Independent Drug Clerks Association, herein called IDCA, and on December 7, 1993 in Case 20–CA–25794 by Chris Clark, an Individual, herein called Clark, Complaints and Notices of Hearing issued on December 11, 1992, May 28, 1993, July 26, 1993, and January 31, 1994, respectively, against Raley’s, herein individually called Respondent Raley’s, and said cases were consolidated on May 27, 1993, July 26, 1993, and January 31, 1994. Upon charges filed on October 4, 1993 in Case 20–CA–25649 and on August 31, 1994 in Case 20–CA–26294 by United Food and Commercial Workers Union, Local 588, United Food and Commercial Workers International Union, AFL–CIO, herein called Local 588, against Respondent Raley’s, and upon charges filed on April 25, 1994 in Case 20–CB–9623 by Chris Zi- carelli, an Individual, on August 31, 1994 by Local 588 in Case 20–CB–9742, and on March 28, 1995, in Case 20–CB–9932 by Thomas Moore, an Individual, against United Wholesalers & Re- tail Union, which until about October 18, 1993, went by the name United Drug Center Employees Association, and herein individu- ally called Respondent UWRU or Respondent UWRU/ UDCEA, and herein with Respondent Raley’s collectively called Respon- dents, an Order Consolidating Cases, Amended Consoli-dated Complaint and Notice of Hearing issued on March 29, 1996 in Cases 20–CA–24973, 20–CA–25195–1, 20–CA–25354, 20–CA– 25794, 20–CA–25649, 20–CA–26294, 20–CB–9623, 20–CB– 9742, and 20–CB–9932, alleging that Respondents have been en- gaging in unfair labor practices as set forth and defined in the Na- tional Labor Relations Act, 29 U.S.C., Sec. 151, et seq., herein called the Act. On August 23, 1996, the charge in Case 20–CA– 25195–1 was severed from the remaining cases. On February 10, 1997, the charge in Case 20–CA–25794 was severed from the re- maining cases. 22 The threshold question raised by the Respondents’ motions for damages for frivolous litigation under Tiidee is whether Tiidee sanc- tions are available against the General Counsel, independent of any the Respondents’ requests for Tiidee sanctions against the Gen- eral Counsel, or to dwell on the matters that lie behind those requests. Second, Irwin Industries, supra, also reaffirms the established doctrine that it would be premature and inappropri- ate to address in the context of this decision any related or sup- plemental claims that might be made under EAJA. Thus, any claim for reimbursement of costs and fees under EAJA, if prop- erly entertainable at all, must await the submission to the Board of appropriate filings under EAJA, and, as well, any supple- mental proceedings which the Board might choose to order pursuant to its own Rules and Regulations (Sec. 102.143, et seq.) implementing EAJA’s requirements. Moreover, any such filing may raise “substantial justification” issues that were not necessarily fully explored or litigated in this proceeding. Accordingly, the Respondents’ motions for Tiidee sanctions are denied, and nothing in this review or in the balance of this decision is intended to determine any merits associated with either their Tiidee claims or their potential claims under EAJA. Rather, in the following subsection, I will identify only those procedural and casehandling developments that I regard as independently significant—either in terms of how they influ- enced the timing, duration, scope, and contours of the eventual litigation; or, to a lesser extent, how they have influenced my appreciation of the issues and my assessment of certain credi- bility questions. B. Significant Procedural and Casehandling Developments The prosecution in its current form emerged gradually, over the course of a nearly 4-year period between 1992 and 1996. It began with an investigation into charges filed in IDCA’s name in November 1992 (Case 20–CA–24973, involving a host of incidents related to the recent visitations of Local 588’s agents, acting on Eidam’s designation, to certain drug centers). This was followed by investigation of new charges filed in IDCA’s “and/or” Eidam’s name in the spring of 1993 (Case 20–CA– 25354), alleging discrimination against Eidam, and centering on a verbal warning given to Eidam on April 6, 1993. The in- vestigation of the “IDCA charges” resulted ultimately in the Regional Director’s issuance, on July 26, 1993, of an order EAJA remedies. The respondents, arguing that the General Counsel is, indeed, liable for Tiidee sanctions, cite only one case to support their argument, Farren’s Tree Surgeons, Inc., 264 NLRB 668 (1982). Con- cededly, Farren’s may backhandedly imply such a holding. (There, the Board denied the request for Tiidee sanctions against the General Counsel, but did so on the factual merits, citing the existence of a key witness-credibility issue as the basis for its statement, “We cannot conclude that this case constitutes frivolous litigation.”) However, the Board’s later decision in Irwin Industries, supra, which issued soon after the Respondents submitted their briefs arguing this matter, clearly seems to disavow any implication that either the General Counsel or a charging party may be liable for Tiidee sanctions. Thus, the Irwin Board, in rejecting the administrative law judge’s recommendations for Tiidee sanctions against the charging party, stated: “We also find, in agreement with the General Counsel, that the Board lacks the statutory authority to order the reimbursement remedy recommended by the judge. Section 10(c) of the Act empowers the Board to impose reme- dies only upon persons ‘named in the complaint,’ i.e., a respondent.” 325 NLRB at 797. See also id. at fn. 9, finding that Tiidee and progeny do not stand for any contrary proposition. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402 consolidating previously issued separate complaints in those cases, and an order scheduling the consolidated hearing to be- gin on September 13, 1993. However, for reasons not specifi- cally disclosed by the formal papers of record, the trial on the IDCA cases did not go forward on that date. And one conse- quence of the slipping of this trial date was that the complaints in the IDCA cases were still awaiting trial when, on September 14, 1993, Eidam published IDCA’s disclaimer, and also on September 23, when Raley’s recognized UDCEA/UWRU as the drug clerks’ new representative. Then, on October 4, 1993, Local 588 filed the charge in Case 20–CA–25649 attacking the recognition. This charge alleged in material part that Raley’s had “unlawfully assisted and domi- nated” UWRU, and had unlawfully recognized it “when [it] did not have majority status.” This charge triggered an investiga- tion that led eventually to the Regional Director’s issuance, on March 29, 1996, of an “Order Consolidating Cases, Amended Consolidated Complaint and Notice of Hearing,” the first of the complaints that had by then issued against Raley’s to attack the recognition as unlawful. As I discuss next, the roughly 30- month interval between the original charge and the issuance of the first complaint attacking the recognition involved two basic investigative phases—the first relatively brief, but the second quite protracted. Moreover, as further discussed below, there occurred a third investigative phase, which began only in the summer of 1996, after the issuance of the “Amended Consoli- dated Complaint” that first called the recognition into question. This “Phase Three” investigation continued for months beyond the opening of this trial on August 19, 1996. And in many re- spects, the General Counsel’s investigation-at-trial by subpoe- nas for records and adverse examination of the Respondents’ principal representatives constituted the most intense and wide ranging investigation of any conducted previously. The first, on-the-ground, investigative phase, during which one or more Board agents interviewed and took affidavits from certain employee witnesses proffered by Local 588, seems to have been conducted almost exclusively in late December 1993. (At least this is the inference I draw from the dates—as noted on the record—of the first affidavits of certain witnesses called by the General Counsel in the prosecution’s case-in- chief, and from the fact that any other affidavits submitted by any other prosecution witnesses were not secured until in or after August, 1996, during phase three of the investigation.) The second phase, which may have begun during the on-the- ground phase but which continued well beyond late 1993, fo- cused on Local 588’s allegation that UWRU lacked “majority status” at the time of recognition. The record contains no indi- cation as to Local 588’s basis in the first instance for charging that UDCEA/UWRU “did not have majority status.” However, the Regional Director investigated this assertion by seeking the UDCEA petitions based on which Raley’s had conferred rec- ognition, plus payroll records showing how many and which employees were employed in the recognized unit at the time of recognition. The documentary record broadly indicates that a contest eventually developed between the Regional Director and Raley’s over whether, or in what form, or under what terms, Raley’s was obliged to demonstrate that its recognition of UDCEA/UWRU was, indeed, based on a showing of major- ity support. And it was not until June 17, 1994, approximately 8 months after the underlying charge had been filed, that the Re- gional Director issued an investigative subpoena seeking pro- duction of the petitions and payroll records. Then, on Septem- ber 8, 1994, after determining that Raley’s would not produce the subpoenaed records except under conditions deemed unac- ceptable by the Regional Director, the General Counsel, acting in the name of the Board, petitioned for enforcement of the subpoena in a United States District Court (ALJ Exh. 38), which, on January 5, 1995, issued an order enforcing the sub- poena (ALJ Exh. 39). All this led eventually to Raley’s surren- der of the subpoenaed records to the Regional Director on April 17, 1995 (ALJ Exh. 40), even while certain features of the dis- trict court’s order were still being appealed by Raley’s (and by UWRU, as an intervenor) to the United States Court of Appeals for the Ninth Circuit, which affirmed the district court’s order in a memorandum opinion dated June 6, 1996 (ALJ Exh. 41). Thus, the Region’s investigative analysis of the subpoenaed records appears to have occurred during the roughly 1-year period between April 17, 1995, and March 29, 1996, on which latter date the Regional Director issued the amended consoli- dated complaint attacking the recognition as unlawful, based in part on the mistaken supposition that the UDCEA petitions surrendered to him in April 1995 lacked sufficient signatures to constitute a numerical majority of the employees in the recog- nized unit. In the notice of hearing accompanying the March 29 amended consolidated complaint, the Regional Director ordered that the trial begin on May 20, 1996. (At this point the Regional Office had also separately transmitted to the Division of Judges a “4–5 day” trial estimate.) On May 9, 1996, however, the Re- gional Director, acting on the Respondents’ unopposed motion, ordered that the trial be postponed to August 12, 1996. After that first trial postponement the Regional Director be- gan a more intensive investigation into the on-the-ground cir- cumstances surrounding the initial recognition of UDCEA/ UWRU. This phase three investigation eventually resulted in a significant expansion of the prosecution as it concerned the recognition, and it therefore deserves more detailed mention: These renewed investigative efforts appear to have first taken on systematic form on June 17, 1996, when an agent of the Regional Director mass-mailed questionnaires concerning pre- recognition events in 1993 to “current or Former Employee[s] of Raley’s.”(See GC Exh. 40.23) The questionnaire was obvi- ously designed to elicit evidence that might be used to beef up the pending prosecution, particularly the “employer-taint” leg of the prosecution.24 And the cover letter accompanying each of 23 GC Exh. 40 is the questionnaire completed by the General Coun- sel’s witness Tim Lee. The parties stipulated that the same question- naire form was used in all other such mailings from the Regional Of- fice. 24 The central questions in the questionnaire (GC Exh. 40) were these: 4. a. In about September 1993, did any Raley’s supervisor or manager say anything to you about supporting one union and/or withholding your support from another union, or about meeting with a union representative? RALEY’S 403 the questionnaires (R. Exh. 325) not only indicated more spe- cifically what it was the prosecutor was looking for, but further, it dubiously characterized the legal context in which the infor- mation was being sought, and it held out what can only be con- strued as inducements and quite misleading assurances to any recipients willing to come forward with such evidence. Thus, in the cover letter, the Board agent first advised the recipients as follows (emphasis added): The National Labor Relations Board [sic] has issued a com- plaint . . . alleging, in relevant part, that Raley’s violated the National Labor Relations Act by unlawfully assisting and recognizing the United Wholesalers and Retailers Union (“UWRU”). In particular, the NLRB has alleged that Raley’s unlawfully assisted UWRU, when it was then known as [UDCEA], in circulating petitions in about September 1993 authorizing UDCEA to represent the Drug Center Employees in collective bargaining with Raley’s.[26] Then, after noting that UWRU was also alleged to have vio- lated the Act, and that the trial was “scheduled to begin on Au- gust 12, 1996,” the Board agent advised the recipients: If we are successful, we will be seeking as a remedy that Raley’s and UWRU refund the dues it [sic] collected pursuant to the union security clause in their collective bargaining agreement. The “dues-refund” feature of the remedy sought by the General Counsel (who was referred to in the cover letter as “The Na- tional Labor Relations Board”) was the only feature of the pro- posed remedy that the Board agent chose to mention in the cover letter.27 And it obviously would not require a “current or former” drug-clerk recipient skilled in mathematics to recog- nize that he or she stood to recoup (or be forgiven for) substan- tial sums in “dues” money paid (or owed) to UWRU over the course of the preceding 30 or so months if s/he could now re- call something that might help the General Counsel to “suc- b. In about September 1993. did any Raley’s supervisor or anyone else ask you to sign a petition requesting that the United Drug Center Employees Association (“UDCEA”) represent you in collective bargaining with Raley’s? [The UDCEA later became known as the United Wholesaler’s and Retailers Union (“UWRU”).] 25 The parties stipulated that R. Exh. 3, addressed to drug clerk Lo- rena Hooker, is a specimen of the cover letter used in all other such mailings from the Regional Office. 26 In fact, as previously noted, the complaint as it then existed (“Amended Consolidated Complaint” dated March 29, 1996) made no such generalized allegation of unlawful “assistance” in the “circulation” of UDCEA “petitions.” Indeed, it made no mention of “petitions” at all: Rather, insofar as is here pertinent, it alleged only (in then-paragraph 18) that, on a single date (September 18), at a single drug center (Beni- cia), a single drug center manager (Second Assistant Wallis) had, (a) “instructed employees to talk to representatives of Respondent UWRU/UDCEA”; and (b) had “allowed representatives of Respondent UWRU/UDCEA to use Respondent Raley’s facilities to talk to em- ployees.” 27 Thus, recipients were not advised, for example, that the General Counsel also was seeking to void the entire labor agreement, indeed, to disestablish the entire collective-bargaining relationship and to return the drug clerks to an unrepresented status. ceed” in proving the charge that “Raley’s unlawfully assisted UWRU . . . in circulating petitions in about September 1993[.]” Moreover, both in the cover letter and at the top of the ques- tionnaire form itself, the Board agent unqualifiedly “assured” the recipients—despite the “little Jencks rule” embodied in Section 102.118(b)(1) of the Board’s Rules and Regulations— that “neither Raley’s nor any union will be notified that you have submitted this questionnaire, and your response will re- main confidential.” (Emphasis in original text.)28 Several of the employee-witnesses called during the General Counsel’s case-in-chief were first contacted by and furnished sworn affidavits to a Board agent only after they had completed and returned such a phase three questionnaire in or after June 1996. And the sworn statements were not taken from these late- discovered witnesses until various dates in August and Septem- ber 1996, in all cases nearly 3 years after the prerecognition events they purported to recall. For reasons that may already be evident, I found particular grounds for questioning the motives and/or the reliability of those employee-witnesses called by the General Counsel who first surfaced only after responding to the phase three questionnaire process. And I was confronted with similar grounds for doubt when certain other prosecution wit- nesses who had given affidavits or other statements to the Board (and/or to Local 588) during phase one of the investiga- tion, now were able to recall, some 3 years later, a number of additional events said to involve employer “taint” that they had failed to report during phase one. Moreover, speaking more generally about the plight of nearly all the witnesses in the trial, it was independently apparent that their memories of events during the prerecognition organizing “window” period were often obscure, or were merged or confused with certain events that did not, in fact, occur in that window period, but only in the aftermath of the recognition of UDCEA, a period during which Local 588 continued to conduct organizing meetings and to solicit authorization card signatures, including, by then, cards running to Local 588’s “UDCEA” affiliate. On August 6, 1996, following my designation as judge for the predicted “4–5 day” trial then scheduled to begin on August 12, I conducted the first of two pretrial conference calls with the attorneys for the parties. During this conference, counsel for the General Counsel advised that the Regional Director con- templated further amending the March 29 amended consoli- dated complaint to allege additional instances of both pre and postrecognition violations by Raley’s, all said to be based on information recently developed during the phase three investi- gation. Counsel for the General Counsel also stated that these intended amendments made it likely that the trial would now last “15 to 20 days.” In reaction, the attorneys for the Respon- dents stated their intention to seek a continuance of the trial proceedings in order to prepare to defend against the new alle- gations, once the amendments were published. 28 In fact, however, some of the employees who had returned such a questionnaire under such blanket “assur[ances] of “confidentiality” were eventually subpoenaed to testify in the General Counsel’s case-in- chief, where they learned, after completing their direct examination, that their questionnaires were required under Sec. 102.118 to be dis- closed to the respondent parties for cross-examination. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404 Later on August 6, however, the scheduling picture changed again, when the Regional Director ordered the trial postponed indefinitely. The Regional Director cited Local 588’s recent submission of an appeal to the Office of the General Counsel from the Regional Director’s own quite recent (August 2, 1996) formal dismissal of one element of Local 588’s October 1993 charge—Raley’s alleged “domination” of UWRU. This was an element which had not been incorporated into the March 29 amended consolidated complaint. The Office of the General Counsel later denied the appeal from the dismissal of the al- leged “domination” charge, thus reaffirming that Raley’s is charged under Section 8(a)(2) only with unlawful “assistance” to UDCEA/UWRU. However, on August 14, 1996, while this appeal was still pending, but after securing certain stipulations and waivers from the Respondents in the meantime, the Re- gional Director rescheduled the trial to begin on August 19. On August 8, 2 days after postponing the trial indefinitely, the Regional Director issued a “Second Amended Consolidated Complaint.” This pleading29 reflected the results to that point of the Regional Director’s recent and ongoing supplemental inves- tigation into prerecognition events, and it greatly expanded the number and range of alleged unfair labor practices, particularly the number and range of acts of unlawful prerecognition assis- tance allegedly committed by named managers at certain drug centers.30 In addition, this pleading reflected in part a reanalysis of some facts that had been before the Regional Director virtu- ally from the beginning of phase one of the investigation in late 1993, and a decision that some of these long-known facts now warranted complaint allegations that had never appeared in prior incarnations of the complaint. Examples of the latter, but by no means the only ones, were, (a) the decision to allege for the first time that, during the prerecognition organizing window period, Raley’s unlawfully denied or interfered with the efforts of Local 588’s staff representatives to conduct organizing ac- tivities within certain drug centers, and (b) the decision to al- lege for the first time (in par. 27) that Raley’s independently violated Section 8(a)(2) when, “[f]rom about an unknown date in September or October 1993 and continuing to date, [Raley’s], by its attorney agent [referring to Henry Telfeian], offered legal assistance and support to Respondent UWRU/ 29 The second amended consolidated complaint appears as an un- numbered subexhibit within the bundle of formal papers comprising GC Exh. 2, immediately following GC Exh. 2(dd) (the affidavit of service associated with Subexh. 2(cc), the August 6 Order postponing hearing) and immediately preceding GC Exh. 2(ee), the affidavit of service associated with the second amended consolidated complaint. 30 Until this point, the complaint (i.e., the “Amended Consolidated Complaint” of March 29, 1996) had alleged only a single instance in which an agent of Raley’s (Second Assistant Wallis, at the Benicia drug center, on September 18, 1993) had engaged in unlawful prerecognition assistance to UDCEA’s organizing campaign. The second amended consolidated complaint, however, introduced at least 23 new counts alleging distinct 8(a)(2) violations, including a total of 19 additional instances in which various named managers at a total of 8 drug centers (Benicia, Fairfield, Fair Oaks, Rancho Cordova, Rohnert Park, South Lake Tahoe, Ukiah, and Placerville) were now said to have furnished unlawful prerecognition assistance to UDCEA’s organizing campaign, either by affirmative acts said to favor UDCEA, or by acts against Local 588 and/or its employee-supporters. UDCEA.” However, In the face of a motion for particulars as to this paragraph 27 count, the General Counsel eventually trimmed and reshaped it substantially in the “Third Amended Consolidated Complaint,” which issued on October 1, 1996, and then further reshaped it to add another particularizing count by motion to amend dated February 10, 1997. Then, on August 16 (the Friday preceding the Monday open- ing of the rescheduled trial), the Regional Director issued an “Amendment [in fact, several amendments] to Second Amended Consolidated Complaint.” This pleading (GC Exh. 2(hh)) further expanded the range of alleged pre and postrecog- nition violations of Section 8(a)(2)—most notably, by alleging for the first time (in par. 27(b)) that, “[o]n unknown dates from about November 1992 to the present, Respondent Raley’s pro- vided financial assistance to Ed Wright.” However, again as a result of a demand for particulars, the General Counsel later amended this count, in part by trimming it (again to particular- ize that the alleged wrongful payments to Wright occurred only after the recognition), and in larger part by restating it in more elaborate form in paragraph 27(b)(1) through (3) of the “Third Amended Consolidated Complaint” (GC Exh. 9(A)), dated October 1, 1996). However, on February 10, 1997, near the conclusion of the prosecution’s case-in-chief, the General Counsel withdrew and moved in writing (GC Exh. 133) to withdraw and delete certain preexisting allegations, including the paragraph 27(b) counts alleging that Raley’s had unlawfully provided “financial assistance” to Wright (GC Exh 133), a motion which I granted. As only partially summarized below, the complaint also un- derwent a series of further expansions, contractions, and other mutations after the trial record opened, ending with the “Fourth Amended Consolidated Complaint,” a 24-page pleading issued by the Regional Director on February 13, 1997. At the trial’s outset, IDCA, by then the representative only of the pharmacists in the drug centers, and acting under new lead- ership, moved through its current attorney, Carl Samuel, to withdraw the original “IDCA” charges that had been filed in IDCA’s and/or Eidam’s name by Davis, Cowell & Bowe attor- neys in Cases 20–CA–24973 and 20–CA–25354. Attorney Samuel stated that IDCA did not want to pursue or proceed on these charges, and he argued centrally that Eidam never had the power under IDCA’s by-laws to authorize their filing in IDCA’s name in the first place. The General Counsel opposed IDCA’s motion to withdraw these charges, and I denied it. On brief, Raley’s requests that I reconsider and reverse my denial of IDCA’s motion to withdraw these charges. I have reconsid- ered this ruling but I adhere to it.31 Relatedly, however, with 31 I rely on essentially the same reasons I summarized on the record when I ruled initially, as follows: First, anyone can file a charge with the Board, and thus it would be essentially irrelevant that Eidam may not have been empowered under IDCA’s bylaws to authorize the filing of these charges. Second, the General Counsel (or the Regional Direc- tor, acting under the General Counsel’s authority) had obviously made determinations that were within the General Counsel’s exclusive power to make in the first instance—that these charges were apparently meri- torious, and, moreover, that the public interest required that the alleged misconduct be prosecuted and, if found to have occurred, remedied under the terms of a Board order. Third, there was no showing that RALEY’S 405 all-party concurrence, I granted Attorney Samuel’s request to withdraw another charge, in Case 20–CA–25195–1, and like- wise granted the General Counsel’s corresponding request to withdraw certain related counts in the complaint, all of which charges and counts in the complaint were said by counsel for the General Counsel to be effectively duplicated in the separate consolidated complaint against Raley’s in the 1992 Grocery Cases, supra, then still awaiting trial before Administrative Law Judge Pollack. At intervals after the trial began, I permitted the General Counsel to further amend the complaint, resulting in several new and additional “assistance” counts (first formally pleaded in the “Third Amended Consolidated Complaint,” dated Octo- ber 1, 1996, but a net shrinkage in the scope of the complaint as it had existed in its immediate pretrial form. The net shrinkage was due in part to the General Counsel’s voluntary withdrawals of certain prior allegations,32 It was also due, in several in- stances, to my having granted the respondents’ joint motions to dismiss certain trial-eve amendments to the complaint. Principal among the latter were a number of amendments al- leging as stand-alone violations of Section 8(a)(1) and/or (3) that Raley’s, after recognizing the new Union, had given UWRU’s representatives more favorable treatment with respect to in-store access to employees and use of its facilities than IDCA’s “representatives” (a category apparently referring ex- clusively, or nearly so, to the Local 588 agents deputized by Eidam as IDCA “Business Representatives” in October 1992) had been able to secure from Raley’s at some previous histori- cal point.33 In colloquy on August 23, 1996, preceding my rul- ings granting motions to dismiss such counts, counsel for the General Counsel and counsel for Local 588 made a variety of arguments, most of which depended on the supposition that the recognition of UDCEA/UWRU was unlawful in the first in- Raley’s and IDCA had settled these charges, at least not in any way that could be said to have provided a remedy for the alleged statutory viola- tions. In these circumstances, so I reasoned then and reason now, a charging party’s current, private interest in withdrawing a charge filed earlier in its name is necessarily trumped by the General Counsel’s superseding determinations that the public interest requires prosecution, and, absent satisfactory settlement, a trial and decision on the merits of the complaint allegations stemming from the charge sought to be with- drawn, and a Federal remedy for any violations found to have occurred. 32 E.g., the withdrawal of a count in par. 11 of the “Third Amended Consolidated Complaint” alleging a violation at the Merced drug cen- ter; the withdrawal of a count in par. 31(b) alleging unlawful discrimi- nation against Chris Clark, and the withdrawal of the (by then already- trimmed) count in par. 27(b) of that same incarnation of the complaint, alleging that Raley’s had violated Sec. 8(a)(1) and (2) by providing “financial assistance” to Ed Wright. 33 Here is a representative example (“Second Amended Consolidated Complaint,” dated August 8, 1996, par. 24): Respondent Raley’s, at Respondent Raley’s Ukiah, California store #388: (a) about an unknown date in October 1993, by an unknown manager of Respondent Raley’s, allowed representatives of Re- spondent UWRU to speak to employees while the employees were working even though Respondent Raley’s had refused to al- low representatives of IDCA, when it was the exclusive represen- tative of the Drug Unit, to talk to employees while they were working. stance. As to these arguments, I noted that if the recognition were unlawful, then the appropriate remedy would be to dises- tablish the entire bargaining relationship flowing from that recognition, including, necessarily, any allegedly “preferential” postrecognition arrangements, and, therefore, that it would be unnecessary to reach the question whether the allegedly prefer- ential treatment given postrecognition to the unlawfully recog- nized union independently violated the Act. Rather, for motion- to-dismiss purposes, I viewed the question as this: Does an employer who lawfully recognizes a union nevertheless commit a violation of the Act by being arguably more accommodating to representatives of the newly recognized Union than it had been to representatives of the union that used to represent the same unit? Insofar as the General Counsel’s arguments were responsive to this question (and they generally were not), they were notably lacking in any citation to pertinent authority. In the absence of authority, I reasoned first on policy grounds that the Board would not wish to invite such attacks on arrange- ments reached consensually by parties to a lawfully established bargaining relationship, especially where the supposedly more favorable arrangements did not themselves facially implicate the Act’s proscriptions. Further, on practical grounds, I noted that to permit the General Counsel to present evidence underly- ing the alleged postrecognition “more-favored-treatment” counts, and then to litigate comparisons between that alleged conduct and how Raley’s may have previously treated IDCA’s “representatives” so as to preserve the question for Board con- sideration would necessarily require me to permit the Respon- dents to counter-litigate the same matters. And I judged that this prospect, in this context, would require a far more detailed (and potentially endless) litigation of anecdotes about practices at various individual drug centers at various given historical points than would otherwise be required to adequately dispose of the central questions in the case.34 34 The General Counsel further argued that Raley’s allegedly more generous postrecognition treatment of UWRU’s “representatives” (employees in all cases), even if not a violation in the context of a law- ful recognition, would be properly litigable to show Raley’s animus against Local 588 (i.e., the “IDCA representatives” said to have been given less favorable treatment than later accorded to UWRU’s “repre- sentatives”). However, the General Counsel was not prepared to assert that such a showing of animus was a necessary element in establishing that Raley’s acted unlawfully in recognizing and contracting with UDCEA/UWRU. (Moreover, on brief, counsel for the General Counsel urges—and I agree—that such a showing is not a necessary element, even while counsel nevertheless painstakingly catalogues all the evi- dence or supposed evidence of record showing the existence of such animus.) Thus, having earlier dismissed the alleged “more favorable treatment” counts in the second amended consolidated complaint (and the many subsequent amendments thereto), I later invoked Rule 403, Fed.R.Evid., to bar litigation of the facts underlying any such claims of post-recognition favoritism, judging that their arguable evidentiary value merely for purposes of showing “animus” was grossly out- weighed by the time, expense, and confusion that would necessarily be involved in fully litigating such matters. I also judged that the litigation of such matters merely for purposes of showing animus, even if suc- cessful from the General Counsel’s standpoint, could only result in needlessly cumulative evidence on the point. And I noted in this regard that the record by then already contained substantial evidence of Raley’s animus against Local 588, not least as such animus was plainly DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406 As already noted, the eventual trial of these cases actually consumed 63 days of proceedings of record. Many of these days—a grossly inordinate total—were devoted to arguments and rulings on numerous disputes surrounding the belated issu- ance of dozens of “trial” subpoenas.35 In fact, these subpoenas were almost entirely investigative in nature, and many of them threatened to turn what was supposed to have been a “trial” on allegations already in the complaint into an open-ended in- quest—mainly, an inquest into the possibility that Raley’s might have committed violations other than those already spe- cifically alleged. (Or, in the case of certain claimed misconduct recently alleged to have occurred during broadly stated time periods, but as to which the General Counsel admittedly had evidence only of occurrence within a far narrower, postrecogni- tion timeframe, an inquest into the possible existence of evi- dence that might justify the more broadly pled timeframe.) Indeed, as a consequence of these and other belated (and often successful) attempts to turn the trial forum into a vehicle for discovery in a case that turned largely on events that already had been under investigation by all parties for 3 or more years, the first 7 days of “trial” proceedings (plus additional days scattered throughout the trial) were devoted chiefly to argu- ments and rulings on petitions to revoke, plus arguments and rulings on various other extraordinary motions and counter- motions,36 nearly all of which, in an administrative litigation system that provided for more orderly pretrial motion and dis- covery practice, would have been substantially resolved long before the case would ever have been noticed for a merits trial. II. THE LABOR RELATIONS BACKGROUND REVISITED Raley’s recognition of UDCEA/UWRU occurred against a complicated and lengthy background, marked by a series of shifting relations over the course of several decades between and among Raley’s, IDCA, and Local 588. Moreover, even the “recent” background to the recognition includes a series of events that began in late 1992, when IDCA still represented the drug clerks, and likewise includes events that had arisen at reflected in published letters and memoranda authored by top-level executives of Raley’s. 35 It was not until roughly a week before the opening of the trial on August 19, 1996, that counsel for the General Counsel issued the first of what eventually proved to be a lengthy series of extensive subpoenas duces tecum (and “supplemental” subpoenas, and “second supple- mental” subpoenas) addressed to Raley’s, to UWRU, to their respective attorneys or former attorneys, and to various other persons or entities, all seeking an enormous number and variety of documents and other records that could have been sought—and subpoenaed, if necessary— during the attenuated, pretrial investigative process. The General Coun- sel’s subpoenas were soon followed by numerous additional subpoenas issued by the private parties to one another (and in one case to the Regional Director). 36 I refer to many further motions to amend the complaint, motions to dismiss, motions to sever or bifurcate the litigation in various ways, motions to preclude litigation of certain issues, motions (by the General Counsel) seeking that I recommend “immunity” for Wright and Telfeian so as to get past certain Fifth Amendment positions taken by those individuals (until they later changed their minds), plus a host of other motions which are usually styled as “in limine.” (i.e., “prelimi- nary”) motions, but none of which were tendered, in fact, until the trial was days, weeks, or even months old. nearby points in 1992, in connection with the separate disputes between Local 588 and Raley’s in the Grocery Cases. Each party has sought to support more than one of its argu- ments in this case by invoking various features of the recent and remote background. Without necessarily agreeing with any particular party’s point in referring to these matters, I agree that these facts may help to illuminate the motivations and behavior of the parties—and the drug clerks—during periods that we are directly concerned with. Accordingly, I will devote the balance of this section to an attempt to summarize the significant labor relations developments affecting the unit of drug clerks occur- ring during the 30 years or so prior to October 1992, the first month in which Raley’s is alleged to have committed unfair labor practices associated with this case. A. The Drug Clerk Unit Under IDCA’s Representation As further explained in my Appendix “A” analysis of the “head count” issue as it relates to employees in the Yreka drug center, the unit of drug clerks represented by IDCA at any given time in the past 35 years was, at bottom, a statewide unit, covering all drug clerks working in any of the California drug centers in existence. Thus, in the 1989–1992 agreement for the drug clerks, the last one negotiated by IDCA, the recognition and the recognized unit were described in the following terms: The Employer recognizes the Association as the sole and ex- clusive collective bargaining agent for all persons employed by the Employer in its Retail Drug Stores, Family Centers, or the like within the State of California with the following ex- ception in each unit: (1) One (1) manager. (2) One (1) assistant store manager and up to three second assistant store managers designated by the Em- ployer and actually serving in that capacity. (3) Registered Pharmacists (4) Security Officer. The particulars of IDCA’s origins are not of record. The par- ties stipulated that IDCA had been the recognized collective representative of drug clerks in the (ever-expanding) chain of drug centers since “the 1960s.” Beyond that, in Raley’s, Inc., 256 NLRB 946 (1981) (discussed further, infra), the Board adopted the findings of Administrative Law Judge Gordon J. Myatt that IDCA was “certified” by the Board in “1963” as the representative of “drug center and drugstore employees” work- ing in Raley’s “freestanding drugstores and combination su- permarkets and drug centers (Family Centers) located in north- ern California.” Id. at 948.37 Beyond that, I find, based on ad- ministrative records maintained in the offices of Region 20 and furnished by the General Counsel at my request,38 that IDCA 37 The mention here and in other contexts to Raley’s drug centers in “northern” California is potentially misleading insofar as it might be taken to imply that Raley’s maintained drug centers at locations in California outside the “northern” part of the State. In fact, as previously noted, all of the California drug centers are located within northern California. 38 These administrative records (copies of file cards summarizing casehandling details in cases whose full files have long since been discarded) were submitted by counsel for the General Counsel on April RALEY’S 407 was the beneficiary of at least three more Board certifications (or recertifications) after 1963 as the representative of certain groupings of drug clerks, two of these following elections in which Local 588 was a rival candidate. The first such post-1963 certification was conferred in July 1964, in Case 20–RC–5354 (captioned “Raley’s Drug Cen- ters”), following an election conducted in May 1964 in a multi- store unit which then apparently included 191 drug clerks eligi- ble to vote, a unit described as “All selling and nonselling em- ployees of the Employer at its stores located in Sacramento and Yolo Counties, California [which are contiguous Counties]; excluding registered pharmacists, guards and supervisors as defined in the Act.” Local 588, then affiliated with the former Retail Clerks International Association, was the petitioner in that election, but received only 36 votes, as compared to 134 ballots cast in favor of IDCA. The second such certification was also conferred in July 1964, in Case 20–RC–5941, follow- ing what appears to have been a Globe-type “self-determi- nation” election39 conducted in June 1964 among both pharma- cists and drug clerks at the Stateline, California drug center. In this election, a majority of employees in both groups voted to be represented by IDCA in a single unit. Local 588 was like- wise the petitioner in that case, but failed to win the election. The third such certification was conferred in March 1965, in Case 20–RC–6271, following another Globe election conducted among pharmacists and drug clerks employed in the Chico store, an election in which IDCA had been the petitioner and Local 588 did not participate. As I further discuss below, IDCA continued unchallenged as the California drug clerks’ representative for another 15 years, until 1979, when Local 588 again became involved in an elec- tion campaign to unseat IDCA, a campaign that was itself ulti- mately abandoned about 5 years later, despite an intervening Board order directing a rerun election. As a consequence, IDCA continued to serve as the drug clerks’ representative for yet another 14 years or so, until September 1993, when Ei- dam’s disclaimer left the door open for Local 588 to make yet another try to organize them. Throughout all these years, the IDCA-represented units of drug clerks and pharmacists grew steadily larger, as Raley’s steadily expanded the number of its stores in California. The record contains no systematic exposition of these expansions. But it generally appears from the testimony of Dora (Kay) Sor- 2, 1998, who requested in a covering letter that these records, and the cover letter, be received into evidence as ALJ Exh. 74. In the absence of objection by any other party, I grant the General Counsel’s request, and have included ALJ Exh. 74 in the package of exhibits being trans- ferred to the Board as part of the record in this proceeding. Moreover, I have relied on the notations and narrative entries on these file cards as competent evidence of official governmental actions and determi- nations taken in relation to the cases summarized in the file cards. See Rule 803(8)(A), Fed.R.Evid.; see also, Rules 803(6) (Records of Regu- larly Conducted Activity), and 803(16) (Statements in Ancient Docu- ments, i.e., documents “in existence twenty years or more the authentic- ity of which is established”). 39 See Globe Machine & Stamping Co., 3 NLRB 294 (1937); see also NLRB v. Raytheon Co., 918 F.2d 249 (1st Cir. 1990), reviewing the history of such elections. dillo (a Raley’s employee who headed IDCA for most of the years of its existence until 1990), supplemented by that of Ken- neth Collings (Raley’s longtime head of labor relations) that, after each new store opened, IDCA would secure authorization cards from a majority of the employees in the new store, pre- sent the cards to Raley’s, whereupon Raley’s would recognize IDCA as their representative and the parties would “fold” the new employees into the statewide unit and apply the existing statewide labor agreement to them.40 B. Local 588’s Evolution; its Renewed Attempts to Represent Drug Clerks in 1979; its Eventual Abandonment of those Efforts for Another Decade Local 588 maintains headquarters offices in Roseville, in the greater Sacramento metroplex. At all times that now concern us, Jack Loveall was Local 588’s president and chief executive, and Lance Reginato was its secretary-treasurer and second-in- charge. Jacques Loveall, Jack Loveall’s son, held dual positions as vice president of the executive board and as codirector of organizing, sharing the latter title with Frank DeProsper, who retired in or about September 1993, leaving Jacques Loveall effectively the sole director of organizing at roughly the same point when Eidam issued the disclaimer. (Of those just named, only Jacques Loveall appeared as a trial witness; and he ac- knowledged that he was effectively in charge of Local 588’s postdisclaimer organizing drive among the drug clerks.) As previously noted, Local 588 was affiliated with the for- mer Retail Clerks International Association (RCIA) when it lost the 1964 elections resulting in IDCA’s certifications (or recerti- fications). However, RCIA’s later merger with the former Amalgamated Meat Cutters and Butcher Workmen’s Union of North America (Meatcutters) resulted in the creation of a single new International union, UFCW, and in Local 588’s affiliation with UFCW. Moreover, over the years since this merger at the international level, several former RCIA and Meatcutters locals operating in northern California had become incorporated by merger into Local 588, and this resulted ultimately in Local 588’s emergence as the dominant retail-trades local in northern California, with a represented constituency in recent years of around 26,000 employees, and a UFCW-recognized jurisdiction that covers nearly all of northern California except for the im- mediate San Francisco Bay Area and a handful of other, more remote and isolated locales. For an uncertain number of years, probably decades, Local 588 and Raley’s have been parties to a series of master labor agreements covering a multiemployer unit composed in the main of grocery workers and meatcutters employed by the op- erators of various supermarket chains. The employers who participate in this multiemployer bargaining arrangement, in- cluding Raley’s, have historically delegated their bargaining rights to a common industry representative, Food Employers Council. In recent years, Local 588’s recognized bargaining rights in this multiemployer unit included the right to represent 40 The same recognition pattern was followed when the Yreka store opened in late 1984 or early 1985. But the unique circumstances asso- ciated with the Yreka store, including the signing of a separate contract document containing lower hourly wage rates for Yreka clerks, are elaborated in Appendix A. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408 grocery workers in nearly half of Raley’s stores in California and the meat department employees in nearly all of them. Local 588’s represented constituency also includes employees of independent drugstore chains such as Thrifty Drugs. However, the record does not indicate whether these employees are part of a distinct unit, or have been incorporated into the multiem- ployer bargaining unit covered by Local 588’s master agree- ment with Food Employers Council. In 1979, Local 588, joined by two other former RCIA locals, embarked on another organizing and election campaign aimed at unseating IDCA as the drug clerks’ representative, a cam- paign during which Raley’s was found to have violated Section 8(a)(1) and (2), as I further discuss below. (For findings here and below relating to the 1979 campaign and the ensuing elec- tion, I again rely on Judge Myatt’s findings, adopted by the Board, in Raley’s, Inc., 256 NLRB 946 (1981).) The RCIA locals conducted a joint organizing campaign and filed a joint petition for an election that was eventually conducted in a unit composed of the drug clerks in all of Raley’s then-existing Drug Centers in California except for those located in Tehama County. Id. at 947 fn. 2.41 The election, held on August 16, 1979, resulted in 106 votes for IDCA and 79 votes for the joint- petitioners, the RCIA locals. However, the RCIA locals filed parallel objections and unfair labor practice charges, and, fol- lowing a trial, the Board found, sustaining Judge Myatt’s find- ings and recommendations, that Raley’s committed preelection violations of Section 8(a)(1) and (2) of the Act amounting to objectionable conduct. Consequently, the Board not only di- rected Raley’s to cease-and-desist and post notices to remedy the unfair labor practices, but ordered that the election be set aside and that a rerun election be conducted under the Regional Director’s supervision. Id. at 946. As recapitulated in Judge Myatt’s conclusions of law (id., at 958), Raley’s was found to have committed the following unlawful acts during the preelection campaign period in 1979: (1) Violating Section 8(a)(1) by “interrogating” em- ployees about their union sympathies and activities. (2) Violating Sections 8(a)(1) and (2) by “threatening employees with discharge or discipline if they spoke to representatives of the Retail Clerks on company time while allowing representatives of IDCA to freely cam- paign among the employees in all areas of the stores.” (3) Violating Sections 8(a)(1) and (2) by “announcing the granting of increased health and welfare benefits in or- der to induce the employees to select the incumbent IDCA . . . and to discourage employee support for the Retail Clerks.” (However, Judge Myatt, affirmed by the Board, 41 Judge Myatt’s decision does not indicate why the stipulated unit in which the election was conducted excluded drug centers in Tehama County, whereas the unit in which he found IDCA had been certified in 1963 consisted of drug clerks in all of Raley’s then-existing “freestand- ing drugstores and combination supermarkets and drug centers (Family Centers) located in northern California.” Id. at 948. In any case, the exclusion of the Tehama County store (or stores) had nothing to do with the Yreka store, which is located farther North, in Siskiyou County, bordering Oregon, and which did not open until late 1984 or early 1985. dismissed allegations that the actual granting of the an- nounced benefits was a violation, because he found that Raley’s operated under an independent “obligation” to confer these benefits. Id. at 956.) (4) Violating Section 8(a)(1) and (2) by “removing campaign literature of the Retail Clerks from the employ- ees’ bulletin board while allowing [IDCA literature] to remain posted.” In addition, although not included in his conclusions of law, Judge Myatt had found in an earlier discussion (id. at 955) that a store manager had violated Section 8(a)(1) when, in conversa- tion with a single employee, he had “denigrate[d] the Retail Clerks” by suggesting that they were prone to “pressure and vandalism.” In affirming Judge Myatt’s findings and conclu- sions, the Board “correct[ed]” the judge’s “inadvertent omis- sion from his Conclusions of Law that [Raley’s] violated Sec. 8(a)(1) by making derogatory remarks about the Retail Clerks Union to employees [sic],” and changed the judge’s recom- mended Order and notice to reflect this correction. Id. at 946 fn. 2. In addition, the Board stated (ib.): “In adopting the Adminis- trative Law Judge’s Decision we wish to point out that, while an employer may lawfully state its preference between compet- ing unions in a representation election (Stewart-Warner Corp., 102 NLRB 1153 (1953), [Raley’s] clearly went beyond indicat- ing its preference by according the incumbent Union privileges and favored treatment so as to enhance that Union’s position to the detriment of the petitioning Union.” The Board’s 1981 decision and order—particularly its order directing a rerun election—then underwent a complicated his- tory of review and partial enforcement in the Ninth Circuit, followed by a supplemental order of the Board remanding the rerun election issue to the Regional Director, all of this leading ultimately to the result that a rerun election was never con- ducted. What follows is a somewhat more detailed summary of that history: In its first review of the case, a panel of the Ninth Circuit “affirm[ed] all of the Board’s unfair labor practices findings except the one that Raley’s violated Section 8(a)(1) [sic] by announcing new health and welfare benefits in order to influ- ence the outcome of the election.” Raley’s Inc. v. NLRB, 703 F.2d 410, 414 (9th Cir. 1983). Reversing the Board on this point, the circuit panel held that the announcement, as a “true statement about lawfully-granted benefits,” was a lawful exer- cise of employer free speech under Section 8(c) of the Act. Relatedly, the panel refused to enforce the Board’s order for a rerun election, because it was “based on . . . all four of the un- fair labor practice findings.” Accordingly, the panel “re- mand[ed] the [rerun] election order to the Board for reconsid- eration in light of the remaining unfair labor practice findings.” Id. at 415. However, on February 13, 1984, the Ninth Circuit, sitting en banc, vacated that portion of the panel’s decision in which the panel had assumed jurisdiction over the Board’s election order (Raley’s Inc. v. NLRB, 725 F.2d 1204), and the panel itself soon issued a modified opinion withdrawing its remand as to the Board’s rerun election order. Raley’s Inc. v. NLRB, 728 F.2d 1274 (1984). RALEY’S 409 On November 21, 1984, following the withdrawal of the cir- cuit panel’s remand, the Board nevertheless issued a Supple- mental Decision and Order in the same cases, in which it recon- sidered, sua sponte, its previous order directing a rerun election in the light of the circuit’s reversal of the unfair labor practice finding regarding the announcement of benefit increases. Raley’s Inc., supra, 272 NLRB 1136. There, the Board found that the “remaining unfair labor practices . . . constitute suffi- cient objectionable conduct to warrant setting aside the elec- tion.” Id. at 1136. However, because of certain scope-of-unit issues that apparently had arisen in the meantime, the Board “refrained from directing a second election,” and instead re- manded the representation proceeding to the Regional Director. Id. at fn. 3. In fact, following the Board’s 1984 remand to the Regional Director, no second election was ever conducted, and thus IDCA continued to represent the drug clerks for the better part of the next decade, until Eidam’s September 1993 disclaimer. Exactly why no rerun election was ever conducted is not evi- dent from any casehandling record furnished to me. However, one significant clue can be found in the Ninth Circuit’s en banc decision in 1984, supra, which noted that, “after the panel’s decision, Local 588 of the Retail Clerks Union requested to withdraw as a petitioner before the Board,” a request that the circuit nevertheless held did not render the matter “moot” be- cause “[t]he two other union locals still actively contest the representation dispute and effective relief could still be granted as to those parties.” 725 F.2d at 1204. Perhaps Local 588 was later able to persuade its copetitioners likewise to withdraw from the joint petition, or perhaps those copetitioners, in the meantime, had become merged into Local 588. In any case, Local 588’s own reasons for deciding in and after 1983 not to seek a rerun election may best be explained by findings in the Grocery Cases made by Administrative Law Judge Pollack about a “compromise” reached between Raley’s and Local in 1983, discussed below. Beginning in the spring of 1992 and continuing at least through November 1992, Local 588 conducted organizing drives among grocery employees in certain of Raley’s existing supermarkets where grocery employees were unrepresented, and made a series of demands that Raley’s submit to a store-by- store card-check process as a basis for recognition. Raley’s refused these demands,42 and these refusals, plus other actions taken by Raley’s during the same period, triggered a bitter and protracted dispute, during which Local 588 filed at least 12 unfair labor practices charges against Raley’s other than those involved in this case.43 The disposition of 10 of these charges is 42 An exhibit tendered by Local 588 and received into evidence as CP Exh. 8 reflects the position taken by Raley’s in refusing to agree to Local 588’s demands for a card-check recognition process respecting grocery employees at the Grass Valley store. 43 For findings regarding the number of charges filed in the Grocery Cases, I rely on the General Counsel’s representations on brief, at p. 32 fn. 34. For findings that Local 588 was then engaged in a card-signing campaign among grocery employees in the unrepresented stores, I rely not only on the General Counsel’s acknowledgment of this fact (Br. p. 32) but on similar acknowledgments in Local 588’s brief (e.g., p. 6) and on a host of more general acknowledgements by counsel during the not a matter of record, however, two of these charges (in Cases 20–CA–24837 and 20–CA–25166, both alleging 8(a)(5) viola- tions), were prosecuted by the General Counsel on the theory that Raley’s owed a duty under the terms of the master labor agreement and past practice to submit to the card-check proc- ess, and thus had waived the otherwise available right to insist on a Board election. The complaints in these eventually con- solidated cases were eventually brought to trial, starting in April 1998, before Administrative Law Judge Jay R. Pollack. On October 22, 1998, Judge Pollack issued a decision in which he found, in substance, that that Raley’s had not agreed by con- tract or practice to waive its rights to a Board election among grocery employees in the particular supermarkets in question. Accordingly, Judge Pollack found that Raley’s refusals to par- ticipate in the demanded card-check recognition process were legally privileged, and he dismissed the consolidated com- plaints in their entirety. Perhaps most pertinent for our purposes are Judge Pollack’s findings regarding the historical background to the dispute in the Grocery Cases, particularly his findings regarding the exis- tence and nature of an unwritten “compromise” reached by Raley’s and Local 588 in 1983, at a time when the Board’s original, 1981 decision and orders relating to the 1979 election in the drug clerk unit were still pending review in the Ninth Circuit. Thus, Judge Pollack found that in 1983, Raley’s and Local 588 had reached a “compromise” of “several disputes involving other non-food employee bargaining units,” a com- promise under which Local 588 would “withdraw as joint peti- tioner from the pending representation proceeding” (apparently referring to the joint petitions filed for the drug clerk unit in 1979), and would further refrain from “attempt[ing] to organize Raley’s Drug Center Employees or office clerical employees.” In exchange, Raley’s “agree[d] not to open non-union [grocery] stores in Local 588’s jurisdiction and would apply the existing collective-bargaining agreement to new [grocery] stores upon a showing of card-majority.” Because Judge Pollack’s decision is pending the Board’s re- view on exceptions, it may be that the Board will not adopt his findings as to the 1983 compromise reached between Local 588 and Raley’s. Accordingly, I do not rely on those findings as explaining how it came to be that Local 588 never pursued its rights to have a rerun election in the unit of drug clerks covered by its original joint petition in 1979. However, as already noted, the existence and general origins of the dispute in the Grocery Cases are subjects that did find their way into these proceed- trial concerning the origins of the Grocery Cases and the main issues raised in those cases. In addition, Jacques Loveall alluded in testimony to his grocery organizing efforts in and after October 1992 in the course of recalling that he had justified his presence in certain of the grocery stores by producing a copy of Eidam’s October 19 letter deputizing him, among others, as IDCA’s “fully-authorized business representa- tives.” Moreover, see CP Exh. 7, a letter dated June 4, 1992, from Raley’s president, Charles Collings, to Jack Loveall, complaining about the supposed in-store activities of Local 588’s organizers and agents during Local 588’s organizing among the grocery employees in the nonunion supermarkets, and threatening to invoke rights to prevent similar acts of alleged “trespass” in the future. (The same letter is quoted in full, infra.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410 ings, in a variety of ways, and the record in this proceeding is sufficient to establish at least this much: For roughly a decade prior to October 1992, Local 588 had shown no interest in sup- planting IDCA as the drug clerks’ representative, and its re- newed interest in the drug clerks as organizing targets did not manifest itself until October 1992, after its disputes with Raley’s underlying the Grocery Cases had coalesced into some- thing resembling a war between those parties. C. Violations Found in Other Raley’s Cases Involving Employees Other than Drug Clerks The protracted and ultimately inconclusive 1979 ULP/Objec- tions case underlying Raley’s, Inc., 256 NLRB 946 (1981), is the only one in which the Board has found that Raley’s com- mitted unfair labor practices associated with the unit of drug clerks. However, in support of an argument that Raley’s is a “recidivist,” Local 588, echoed by the General Counsel, has called my attention to unfair labor practice findings in two ad- ditional Board cases brought by Local 588, involving other units of Raley’s employees represented or sought to be repre- sented by Local 588. The first such case, Raley’s, Inc., 236 NLRB 971 (1978), enfd 608 F.2d 1374 (9th Cir. 1979), cert. denied 449 U.S. 871 (1980), arose in 1976, when Local 588 filed a petition for an election in a unit of Raley’s office clerical employees at its Sacramento headquarters. Local 588 failed to receive a majority vote in the election, but filed objections and unfair labor practice charges. The Board found that, before the election, Raley’s committed unfair labor practices by impliedly promising to remedy grievances and improve wage features to discourage the office unit employees from selecting Local 588, and, after the election, further violated the Act by changing the clerical wage structure to reward them for rejecting Local 588 in the election. The Board set the election aside and issued a bargaining order. The record in this case does not indicate whether or not Local 588 ever exercised its rights under the bargaining order to represent the Sacramento headquarters clerical employees. Judge Pollack’s findings in the Grocery Cases concerning the 1983 “compromise,” supra, leave room for doubt on this score. The second such case, Raley’s, Inc., 311 NLRB 1244 (1993), arose out of a 1991 charge by Local 588 and a 1991 complaint by the General Counsel attacking Raley’s “new dress code” (of 1988) insofar as it had been expressly particularized (in 1989) to ban the wearing of union buttons and other union insignia by “on-duty” grocery clerks in its supermarkets. Administrative Law Judge Clifford H. Anderson found that the ban as to union buttons and insignia—and its 1991 enforcement at a supermar- ket in Fairfield, California—violated Section 8(a)(1). Judge Anderson further provided as part of his recommended reme- dial order that Raley’s post a notice to employees “at its Fair- field, California facility, and all other facilities where [its 1988] dress code or any subsequent dress code explanation or modifi- cation which bans the wearing of unapproved union buttons and insignia has been maintained and enforced.” Id. at 1252. Raley’s filed “limited exceptions” only to this “multistore” feature of the notice-posting remedy, but not to the judge’s unfair labor practice findings. Id. at 1244.44 The Board rejected Raley’s exception and adopted the judge’s recommended order for posting “at all locations where the unlawful rule has been or is in effect.” Id. at 1244 fn. 2. PART THREE: THE “IDCA” CASES; RELATED EVENTS IN 1992 AND EARLY 1993 I. PROSECUTION CLAIMS ASSOCIATED WITH RALEY’S LETTER OF JUNE 4, 1992, TO LOCAL 588 The discussion in this section is intended to dispose at the threshold of claims made for the first time on brief by the Gen- eral Counsel and Local 588 about the evidentiary and legal significance to this case of a letter written by Raley’s to Local 588 on June 4, 1992, relating to the “Grocery Cases,” that is, to Local 588’s attempts to organize grocery employees in some of Raley’s supermarkets where Local 588 did not already have recognized, contractually established bargaining rights. The prosecuting parties variously assert that, through this letter, Raley’s declared a “rule,” or a “policy” that unlawfully “pro- hibited” its employees from exercising statutory rights to con- duct in-store organizing on Local 588’s behalf. Moreover, this asserted prohibition is said by the prosecuting parties to have pervaded the thinking and behavior of Raley’s top manage- ment, its drug center managers, and the drug clerks themselves, throughout the ensuing year and beyond, including 15 months later, during the rival organizing campaigns triggered by Ei- dam’s eventual disclaimer. For reasons discussed below, I re- gard such claims as not merely opportunistic and overreaching in the particular procedural circumstances, but obtuse and far- fetched on their own merits. The June 4 letter was written by Charles Collings, Raley’s president and chief executive, to his counterpart at Local 588, Jack Loveall. Everyone agrees that it was written in the context of Local 588’s then-ongoing organizing and card-signing cam- paign among unrepresented grocery employees at certain Raley’s stores. The full text of the letter is set forth below, with italics to emphasize the passage in which the prosecuting par- ties have detected the promulgation of an unlawful, employee- directed rule. Dear Mr. Loveall: On June 3, representatives of Local 588 of the United Food and Commercial Workers Union entered Raley’s stores within their jurisdiction to solicit new members 44 The fact that the Board adopted the administrative law judge’s un- fair labor practice findings pro forma (i.e., in the absence of exceptions) may “diminish or even negate the precedential value of the rationale” of the decision; however, even when the Board adopts the administra- tive law judge’s unfair labor practice findings pro forma, the decision may properly be “considered by the Board when determining whether a respondent has demonstrated a proclivity to violate the Act.” Operating Engineers Local 12 (Associated Engineers), 270 NLRB 1172, 1173 (1984). Accordingly, without deciding whether Raley’s adjudicated unfair labor practices in the “union button/dress code” case would usefully establish such a “proclivity” on Raley’s part, I acknowledge that the Board’s decision in that case is properly considered in such an analysis. RALEY’S 411 amongst our employees. While Raley’s does not wish to interfere with the rights of our employees to engage in un- ion activities, we do object to your representatives interfer- ing with our store operations. We understand that members of the above-mentioned locals [sic] were speaking to employees in such places as the backrooms of the stores and behind department count- ers. As you know, union representatives, like any other member of the general public, are allowed in our stores for only one reason, to shop. They have no right to access to non-public areas, such as those described above. More- over, organizing activities, including soliciting and distri- bution of materials, are not permitted on store premises, and certainly not while employees are working. Please be advised that we will contact the local au- thorities to report anyone engaged in trespass activities or disturbing the peace as described above. We will also con- sider filing a trespass action in state court and an unfair la- bor practice charge with the National Labor Relations Board where appropriate. Your prompt attention to this matter will be much ap- preciated. On brief, counsel for Local 588 repeats this text, then de- clares (in a footnote appended to the above-italicized portion), “That rule of course violates Section 8(a)(1) as an overbroad restriction on organizing or soliciting.” Counsel for the General Counsel makes essentially similar claims on brief, plus addi- tional ones, but expresses them in less forthright, and, occa- sionally, even self-contradictory terms, as follows (GC Br. 32– 33; emphasis added; footnote and exhibit citations omitted): Although it appears that the Local 588 representatives had been talking to unrepresented employees in Raley’s grocery stores, the restrictions described in the letter are not so limited, but apply to the drug center portions of the stores as well as the supermarket portions. Raley’s drug center Managers would have been aware of these restrictions that Raley’s placed on Local 588’s access to unrepresented employees anywhere in the stores because the letter was copied to them. Moreover, the prohibition on organizing activities such as solicitation and distribution of materials on store prem- ises, while directed to the Local 588 representatives, was not restricted to them. As a result, an inference should be drawn that the prohibition also applied to Local 588 em- ployee supporters who might distribute cards and solicit support within the stores. All of the meat department em- ployees and many of the grocery store employees were represented by Local 588 or a sister UFCW local union. It is likely that Raley’s was concerned that these employees, as well as unrepresented grocery clerks, would support Local 588 and engage in the prohibited organizing activi- ties, so it is not unreasonable to interpret the letter as also placing restrictions on Local 588 employee supporters. The General Counsel is apparently referring in these argu- ments to the same passage flagged by Local 588, i.e., Collings’ admonition that “organizing activities, including soliciting and distribution of materials, are not permitted on store premises, and certainly not while employees are working.” The prosecut- ing parties have persuaded themselves that this admonition was intended to be applied not only to the in-store “organizing ac- tivities” of Local 588’s representatives, who were not employ- ees of Raley’s, but, as well, to the in-store activities of Raley’s own employees. In reaching this conclusion, they rely exclu- sively on the absence from the quoted admonition of any ex- plicit indication that employees were exempted from its reach. Thus, although counsel for the General Counsel concedes on the one hand that the “prohibition” was “directed to the Local 588 representatives,”45 she emphasizes on the other hand that it “was not restricted to them.” Moreover, this lack of explicitness in the passage in question becomes the springboard for the General Counsel’s additional speculation about what Raley’s real concern “likely” was (“It is likely that Raley’s was con- cerned,” et cetera.) And these speculations, bottomed on the absence from Collings’ admonition of an explicit exemption for employee activities, clearly carry the General Counsel to the ultimate conclusion, however mincingly phrased, that “it is not unreasonable to interpret the letter as also placing restrictions on Local 588 employee supporters.”46 Proceeding from this textual interpretation, the prosecuting parties evidently reason that Collings’ admonition, as written, was unlawfully “overbroad” because, as discussed below, an employer is not normally permitted to impose a premiseswide ban on organizing or other Section 7 protected activity by its employees, but must normally allow such on-premises activi- ties, subject only to its right to restrict such activity to nonwork times and nonwork areas. Beyond that, the General Counsel does not claim simply that the admonition was “overbroad” in its literal formulation, without regard to Raley’s intent, but that, in fact, it was intended by Raley’s to apply to employees, par- ticularly to those employees who might be supporters of Local 588. (“It is likely that Raley’s was concerned that . . . employ- ees . . . would support Local 588 and engage in the prohibited organizing activities, so it is not unreasonable to interpret the letter as also placing restrictions on Local 588 employee sup- porters.”) All such claims are obviously intended to invite a finding that, since at least June 4, 1992, Raley’s has announced and 45 In fact, counsel for the General Counsel makes this concession not only in this passage, but even more unqualifiedly in an earlier passage, where she characterizes the “prohibitions” as “restrictions that Raley’s placed on Local 588’s access to unrepresented employees anywhere in the stores.” 46 While her evident intent is to assert that the letter contains an unlawfully overbroad prohibition against in-store organizing activities by employees, counsel for the General Counsel has undermined the force of the assertion by resorting to the bureaucryptic, “not un-” for- mulation. Thus, to say that an “interpretation” is “not unreasonable” is hardly the same as saying that the interpretation is a “reasonable” one, much less that it is the “most reasonable” of all the possible interpreta- tions that the record might allow; it only means that the interpretation cannot be dismissed as irrational. But where, as here, the General Counsel bears the burden of persuasion on the point of interpretation, persuasion requires something more than an interpretetation that is merely “not unreasonable.” Indeed, only a “probable” interpretation is strong enough to carry the load, and, for reasons discussed below, I judge that the General Counsel’s interpretation does not come close to satisfying this standard. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412 maintained a rule that effectively prohibited employees in gen- eral, including drug clerks, from exercising statutory rights to conduct in-store organizing activities. Indeed, the General Counsel invites me to find that employee activity in support of Local 588 was a specifically intended target of the rule. Strik- ingly, however, no such claims appear anywhere in the out- standing complaint. In fact, this still-massive and much- tinkered with pleading nowhere even refers to the June 4 letter or to the supposedly unlawful “prohibition” embedded within it. Accordingly, Raley’s received no appropriate notice that the legality of statements made in the June 4 letter were being in- dependently called into question in this proceeding, and Raley’s had no reason to attempt to defend against such phantom claims during the trial or on brief. These might be sufficient reasons in themselves to ignore these claims. However, as I have already indicated, both the General Counsel and Local 588 have invoked the supposedly unlawful character of the “prohibition” declared in this June 1992 letter to buttress their further arguments about certain later actions taken by Raley’s or its agents that were made the targets of the complaint. Therefore, I judge it to be worth the additional diversion to explain why, on the merits, I reject not only the claims made by the prosecuting parties concerning the signifi- cance of the June 4 letter, but any additional arguments that assume the merit of such claims. The prosecuting parties’ claims are commonly informed by a specious textual analysis. Their analysis is fundamentally flawed by a myopic focus on the stated “prohibition” appearing within the letter and by a correspondingly blind-eyed disregard of the evident motivation for the letter and of the text which surrounds the stated “prohibition” and infuses it with concrete meaning. The obvious motivation for the letter—indeed, its central subject—was Collings’ belief that members of Local 588’s staff, not Raley’s employees, had used certain in-store locales, particularly “non-public” areas, to solicit support for Local 588 among the grocery employees. Presumably, that is why he wrote the letter to Local 588’s Loveall in the first place, rather than posting it in the form of a memo to employees. (There is no evidence that the letter was publicized to employ- ees on either the grocery or drug sides of any of the stores any- where in the chain.) Obviously, too, every paragraph in the letter, including the paragraph in which the sentence appears that is so attractive to the prosecuting parties, contains express references to the in-store organizing activities of Local 588’s staff representatives, and none to the organizing activities of employees (except, of course, in the introductory paragraph, stressing that “Raley’s does not wish to interfere with the rights of our employees to engage in union activities”). And the last paragraph, stating Raley’s intention to prevent such “tres- pass[es]” in the future, merely underscores that the “prohibi- tions” in question were intended by Raley’s to apply only to in- store activities conducted by Local 588’s staff of organizers, and not to activities by Raley’s employees. This is because Raley’s employees “are already rightfully on the employer’s property” and not “trespassers,” and, therefore, their Section 7 rights to engage in on-premises union organizing activities “differ[ ] substant[ially]” from those of “nonemployee” solici- tors seeking trespassory access. Hudgens v. NLRB, 424 U.S. 507, 521 fn. 10 (1976). Admittedly, the letter might take on greater probative sig- nificance in this case if the record otherwise showed that Raley’s had applied the “prohibition” declared by Collings to employees, or even if the record showed that Raley’s intended the broadly stated prohibition to apply to employees engaged in organizing activities within the stores. But there is no evidence that the stated restrictions in the letter were ever applied to employees; consequently, there is no reason to suppose that Collings’ admonition to Local 588 had any actual impact on employees’ exercise of protected rights to conduct in-store organizing activities on behalf of Local 588. Moreover, I have rejected as specious any claim that employee activities were the intended targets of the prohibition. I have found instead that the restrictions were intended to be “directed” exclusively at pre- venting future recurrences of the in-store organizing activities that Collings supposed Local 588’s nonemployee agents had already engaged in. Moreover, that Raley’s had a presumptive right to maintain and enforce the declared prohibitions against nonemployee organizing or other nonemployee solicitation activities within the stores is a point I elaborate next in a partial review of caselaw that will have recurring applicability to my analyses of several of the many remaining issues in the case. Under established interpretations of the protections set forth in Section 7 of the Act, employees have a presumptive statutory right (rebuttable by an employer showing of “special circum- stances”) to use their workplace as a forum for union activities, or for any other concerted activities for their “mutual aid and protection” (Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)), the latter being a Section 7 phrase which is itself con- strued broadly to mean any concerted activities by employees that “bear a relationship to their interests as employees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 567 (1978). However, “working time is for work,” and the employer has a right to promulgate and enforce a nondiscriminatory rule which bars otherwise protected employee solicitation and distribution ac- tivities when conducted during employees’ “worktime,” or in a “working area.” Republic Aviation Corp., supra. By contrast, “nonemployee union representatives” enjoy no comparable or “derivative” right grounded in Section 7 to enter or use an employer’s premises for organizing or other solicita- tion purposes. NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956); Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). (See also, e.g., Leslie Homes, Inc., 316 NLRB 123, 126–127 (1995), and Galleria Joint Venture, 317 NLRB 1147, 1149 (1995).) As the Court reaffirmed in Lechmere, “[t]he Act [draws] a distinc- tion ‘of substance,’ between the union activities of employees and nonemployees.” 502 U.S. at 537, quoting Babcock & Wil- cox, supra, 351 U.S. at 113. The substantive distinction be- tween employee and nonemployee access rights lies in two considerations: (1) The Act confers protection only on “em- ployees,” and (2) employees, unlike nonemployees, are already “invitees,” i.e., “already rightfully on the employer’s property,” and, therefore, only the employer’s “management interests rather than his property interests [are] involved” when employ- ees seek to exercise Section 7 rights on the employer’s prop- erty. Hudgens v. NLRB, supra. Accordingly, while the Board is RALEY’S 413 entitled to “balance” the employer’s “management interests” against employees’ Section 7 interests and to strike the balance in favor of employee’s use of their employer’s property for Section 7 protected purposes, the Board is not free to engage in similar balancing “in cases involving nonemployee activities (like those at issue in Babcock itself)[.]” Lechmere, supra, 502 U.S. at 537; Galleria Joint Venture, supra at 1149; Leslie Homes, supra at 126. Rather, absent the employer’s agreement through contract or established practice, a union cannot legiti- mately claim such access rights for its nonemployee representa- tives except upon making either of two showings: (1) that em- ployees are beyond the reach of reasonable efforts by the union to communicate its message to them (the “inaccessibility” ex- ception);47 or (2) that the employer’s access rules discriminate against the union by allowing other organizations to solicit (the “discrimination” exception).48 Lechmere, supra, 502 U.S. at 535. See also, e.g., Nicks’, 326 NLRB 997 (1998). The Board’s decision in Farm Fresh, supra, deserves addi- tional mention in this preliminary review. There, the Board reaffirmed the applicability of Lechmere principles in the par- ticularly problematic retail store context, and, in the process, “expressly overruled” its earlier decision in Montgomery Ward,49 which had allowed for a limited statutory right of ac- cess by nonemployee union organizers to in-store restaurants or food-service areas open to the general public, “so long as the organizers conducted themselves in a manner consistent with the facility’s intended use and were not disruptive.” 263 NLRB at 127. The Nick’s Board concluded that Montgomery Ward had already been “effectively overruled” by Lechmere’s hold- ing that “except in rare cases of employee isolation or disparate treatment of organizational activity, an employer may lawfully prohibit nonemployee union representatives from trespassing on its property to engage in organizational activity.” Id. at 9. Moreover, the holding in Nick’s, supra, while reached in the narrow factual context of a union’s claimed rights of organizing access to an employer’s in-store public restaurant facility, in- cludes certain broader teachings that must inform my analyses of several other access issues arising in this case. I refer par- ticularly to prosecution claims under the “discrimination excep- tion,” which seek to make what I regard as an inappropriate, apples-to-kumquats comparison between the tolerance shown by Raley’s (through Benicia Second Assistant Wallis) for the 47 Neither the General Counsel nor Local 588 asserts that the inac- cessibility exception would apply here, and it obviously does not. 48 Anticipating postdisclaimer organizing matters in September 1993 that are more thoroughly discussed in part six, I note that the General Counsel and Local 588 contend that, once Raley’s “allowed representa- tives of Respondent UWRU/UDCEA“ (i.e., Ed Wright) to “use” the Benicia drug center’s “facilities” for UDCEA organizing purposes, Raley’s owed—and violated—a legal duty to permit Local 588’s non- employee representatives to make in-store organizing contacts with the drug clerks. The prosecuting parties implicitly invoke the discrimina- tion exception under Lechmere as the basis for such claims. I will find no merit to such claims, or to the “apples-to kumquats” comparison that lies at the heart of such claims. 49 Montgomery Ward & Co., 263 NLRB 126 (1988). See also Mont- gomery Ward & Co., 263 NLRB 223 (1982), enfd. as modified 728 F.2d 389 (6th Cir. 1984), and Montgomery Ward & Co, 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982). in-store organizing activities of Wright on September 18, 1993, with the intolerance exhibited by Raley’s managers in several instances when Local 588’s nonemployee representatives later came into the drug centers to solicit support for Local 588 among the drug clerks. I will reserve further discussion of the additional teachings of Nick’s to part six, section V. Even after Lechmere and Nick’s it remains somewhat haz- ardous to attempt categorical statements about the extent to which nonemployee union agents have solicitory access rights to retail store premises. The existence or the extent of these solicitory rights, if any, may depend in a given case on the law or Constitution of the State in which the access issue arises, the particular layout of the premises to which access is sought, and the particular location and typical use of those premises by the property owner or owner-surrogate who seeks to deny access to nonemployee solicitors.50 However, it seems reasonably clear after the Court’s decision in Lechmere, and the Board’s subse- quent decisions in such cases as Leslie Homes, Galleria Joint Venture, and Nick’s, supra, that nonemployee union representa- tives have no greater presumptive statutory rights of organizing access to even a retail employer’s interior premises than they would possess if they sought to enter an industrial employer’s plant or any other kind of employing facility—that is to say, none at all. Accordingly, if any finding were required to be entered in this case as to the lawfulness of Collings’ June 4 letter, I could only find as follows: In the known circumstances, the letter reflected a routine and lawful exercise of a retail em- ployer’s presumptive right to bar nonemployee union organiz- ers, like nonemployee agents for any other organization or cause, from entering and using its store premises to solicit em- ployees or customers, which carries with it the corollary right to do just what Collings warned that Raley’s would do if Local 588 persisted in sending its agents into the stores to conduct an organizing drive—evict them as trespassers. II. ALLEGED VIOLATIONS IN LATE OCTOBER-EARLY NOVEMBER 1992 A. Introduction; Immediate Background; Overview In the remaining subsections of this section, I will dispose of a cluster of alleged violations linked to alleged conduct by named agents of Raley’s as described in paragraphs 9, 10, 12, 13, 14, 15, and 34 (particularly 34(d) and (f)) of the com- plaint.51 While these counts range over a lot of factual and legal 50 I will not grapple here or elsewhere within this decision with the special considerations under State constitutions or laws that sometimes arise where the question is the nonemployee organizer’s right of access to sidewalks or parking lots surrounding a freestanding retail store, or access to similar or other common areas within the confines of a shop- ping center, but outside the premises of a particular retail store within the shopping center. See discussion in NLRB v. Indio Grocery Outlet, 187 F.3d 1080 (9th Cir. 1999), enfg. 323 NLRB 1138 (1997). This is because, (a) no party has argued theories under Indio Grocery, and (b) rightfully so, in my view, because, as far as I can tell, Indio Grocery considerations do not properly apply where, as here, the questions presented have only to do with solicitory access by nonemployees to areas within a particular retail store. 51 The above-enumerated paragraphs describe a variety of alleged acts by Raley’s or its named agents, all of which are further alleged in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414 terrain, they address a series of events that occurred or alleg- edly occurred within a relatively brief period—roughly, the 2 weeks that followed Eidam’s October 19 letter to Raley’s an- nouncing that he had deputized 30 named members of Local 588’s professional staff as “full[y]-authori[zed] Business Rep- resentative[s] of IDCA,” including for purposes of “servicing” the IDCA contract covering the drug clerks, and exercising certain store-visitation rights provided for in Section 10 of that contract.52 As previously noted, Eidam was elected president of IDCA sometime in July 1992, and actively assumed the office in Au- gust 1992, at roughly the same time that the supermarket card- check disputes between Local 588 and Raley’s had begun to emerge and ripen into what eventually became known as the Grocery Cases. The most recent IDCA labor agreement for the drug clerks was due to expire on October 3, 1992, but at some point before that date IDCA and Raley’s had agreed to extend it indefinitely, pending negotiations for a successor agreement. Bargaining for a successor agreement began on or about Octo- ber 1, 1992, and substantive negotiations continued to take place at least until sometime in July 1993, when a bargaining stalemate was apparently reached, followed by more perfunc- tory contacts between the bargaining parties thereafter, and followed ultimately by Eidam’s issuance of the disclaimer on September 14, 1993. Throughout these negotiations, executive-level officials of Local 588 were key members of IDCA’s bargaining team. Thus, in and after October 1992 the IDCA team regularly in- cluded not only IDCA member-officials Eidam, Thomas Moore, Chris Clark, and Erik Rodrick,53 but Lance Reginato, concluding paragraphs of the complaint as independent violations of Sec. 8(a)(1), and most of which are also alleged as violations of Sec. 8(a)(5). All references to the enumerated paragraphs are intended to refer, as well, to the corresponding allegations in the concluding para- graphs of the complaint. 52 Par. 9 of the complaint charges Raley’s with giving favored treat- ment to anti-Eidam dissidents by allegedly “permitting” them to use store fax machines and the Company’s “internal mail system” on a date prior to October 19, i.e., “on about October 17 and/or 18, 1992.” How- ever, there is no evidence that anyone (whether anti-Eidam dissidents or Eidam’s allies) used the fax machines and/or Raley’s internal mail system on October 17 or 18. In fact, as further noted below, if the documents now relied on by the General Counsel as proof of such communications were competent at all to demonstrate the timing of their transmission (and I will judge that they were not), they fail to contain any indications of transmission prior to October 21. 53 According to Eidam, Thomas Moore held the IDCA position of “sergeant-at-arms” in addition to his role on the negotiating committee. Moore was also a charging party herein as to union-security enforce- ment actions occurring after Raley’s entered into the labor agreement with UWRU in October 1993. However, as previously noted, Moore never made an appearance of record in these proceedings, and he was never called to testify. Chris Clark, who likewise did not appear or testify, was the recently-elected vice president of IDCA when the bar- gaining sessions began in October 1992. Clark was also a onetime charging party in these cases, but, as previously noted, his charges— and corresponding counts in the complaint—were withdrawn before the General Counsel rested the prosecution’s case-in-chief. Erik Rodrick, who was called as the General Counsel’s witness, was, at the time negotiations began in October 1992, an IDCA shop steward in the Local 588’s secretary-treasurer, Michael Tursky, Local 588’s union representative coordinator, and Jacques Loveall, Local 588’s co-director of organizing (also the vice president of Local 588’s executive board and the son of Local 588’s president, Jack Loveall).54 From Tursky’s testimony, I find that Eidam, Reginato and Tursky were the main spokespersons for IDCA throughout the bargaining sessions, and that Tursky himself was the main spokesman for IDCA during certain bargaining rounds in the summer of 1993. (As previously noted, Raley’s acquiesced in the inclusion of Local 588’s representatives in the bargaining sessions, and the legality of Raley’s conduct at the bargaining table during the ultimately inconclusive negotiations process is not in any way called into question in this prosecu- tion.) Early on during this bargaining, however, Eidam served no- tice that Local 588’s “assistance” to IDCA would extend be- yond the bargaining table. Thus, in a letter dated October 19, 1992, to the Company’s chief labor relations official, Kenneth Collings, Eidam advised that, “pursuant to Section 10 of the Raley’s IDCA Agreement,” IDCA had “designated” a total of 30 named “individuals . . . to assist our Union in servicing our collective bargaining agreement with Raley’s Supermarkets [sic].”55 Although Eidam’s letter did not expressly so indicate, the 30-named designees were all employees of Local 588, members of its full-time staff of organizers and business repre- sentatives. (Indeed, the list covered not only Local 588’s first- level organizers and business representatives, but its midlevel supervisory personnel, as well, including Co-Directors of Or- ganizing Jacques Loveall and Frank DeProsper, Union Repre- sentative Coordinator Michael Tursky, and Grievance Coordi- nator Larry Heise; and the list seems to have excluded only the two top-ranking officials of Local 588, Jack Loveall and Lance Reginato.) Eidam stressed at the conclusion of this letter that that the 30-named “individuals“ had “full authorization to act as Business Representatives of the Independent Drug Clerks As- sociation.”56 Roseville drug center where Eidam then worked as a pharmacist. He was an acknowledged ally of Eidam, and he became IDCA’s treasurer at some point in August 1993, about a month before Eidam published the disclaimer. 54 For findings regarding the composition of IDCA’s bargaining team and its principal spokespersons, I rely primarily on Tursky’s tes- timony, supplemented by Jacques Loveall’s testimony that he, too, was present during at least one such bargaining session, where he was intro- duced to Eidam for the first time. 55 The underlying labor agreement containing the Sec. 10 provisions invoked by Eidam was called on its cover page, the “Drug Family Center Agreement,” and the parties to that agreement were specifically identified on the cover page as IDCA and “Raley’s,” not “Raley’s Supermarkets.” I would have expected Eidam to be aware of these distinctions, but not necessarily Local 588’s attorneys, who filed sev- eral charges in IDCA’s name against “Raley’s Supermarkets.” Thus, I am led to wonder who really authored the designation letter that Eidam signed. 56 In response to the General Counsel’s motion “in limine” (in fact a motion made more than 2 months after the trial opened), I eventually barred Raley’s from litigating facts bearing on the question of Eidam’s authority under the IDCA bylaws to have thus “designated” Local 588’s agents as “full[y]-authori[zed]” business representatives of RALEY’S 415 Section 10 of the IDCA contract covering the drug clerks provided as follows: It is agreed by both parties hereto that the business representa- tives or any other persons designated by the Association [IDCA] for such purposes shall have the right and shall be al- lowed by the Employer to visit any and all stores covered by this Agreement for the purpose of observing working condi- tions, making inquiries from [sic] the employees concerning working conditions, complaints of members of the Associ- ation and/or any violations of this Agreement. The Associ- ation agrees there will be no unnecessary visits or interference with the proper performance of the work of employees cov- ered by this Agreement. A virtually identical provision had been in the IDCA contract since at least 1976.57 As I elaborate below, soon after Eidam dispatched this letter to Raley’s, Local 588 dispatched its representatives to the drug centers located within their respective, Local 588-assigned service areas,58 equipped them with copies of the designation letter and Section 10 of the IDCA contract, instructed them to introduce themselves and pass out their Local 588 business cards to all the drug clerks they could find, and to advise the drug clerks that they were “assisting” IDCA in “servicing” the IDCA contract, and that the drug clerks should call them if they had questions or needed assistance. During the ensuing visita- tions, Local 588’s agents (or, if you prefer, “IDCA’s designated representatives”59) typically wore distinctive jackets, shirts, hats, or other garb bearing Local 588’s or a “UFCW” logo. IDCA. (Tr. vol. 16:3156.) However, my ruling was “without prejudice to Raley’s right to show that the conduct of the Local 588 representa- tives on the days of their arrests was contractually unprivileged.” Id. Moreover, as I had noted in an earlier session when the motion in limine was first presented (Tr. vol. 12:2226), my ruling on that motion would not necessarily bar evidence on the motivations and purposes underlying the designation, which motivations and purposes were put into issue not only in the complaint and answer, but also in the opening statements of counsel for the General Counsel and counsel for Raley’s. 57 See Judge Myatt’s adopted findings in Raley’s, Inc., supra, 256 NLRB at 948. 58 Although the total number of drug centers visited by Local 588’s agents is not a matter of record, I infer that nearly all the drug centers in California received such visitations. This is because Local 588’s admit- ted aim was to conduct visitations at all the drug centers in the chain that were located in areas within the territorial jurisdiction of Local 588, which means, practically, nearly all of the California drug centers. 59 The General Counsel has shown a decided preference for referring to the visiting Local 588 agents as “IDCA’s designated representa- tives,” or, simply, “IDCA’s representatives.” These nonspecific terms of identification appear with mantra-like repetition both in the com- plaint and in the prosecution brief. And their rhetorical purpose is obvi- ous—to assert the primacy of the visiting union agents’ nominal roles as “agents” of IDCA over their simultaneous and ongoing roles as full- time employees and agents of Local 588. (And never mind that the testimony of these agents consistently shows that any instructions they received came from Local 588’s executives, not from Eidam, who was unknown to nearly all of them—and vice-versa.) The General Coun- sel’s rhetorical/legal point is noted, and will be addressed in due course. My occasional references to the same people as “Local 588’s agents” has more to do with my ultimate judgments about the on-the-ground The most intense visitation activity seems to have occurred in the first 4–5 days after Eidam issued the designation letter. The drug center managers were apparently caught off guard in this early period, and they did not react uniformly.60 In most cases, the managers either did nothing in response to the visita- tions,61 or made inquiry and then backed off after the visiting union agents insisted on their right to be present in the drug centers and to talk to the drug clerks.62 However, on October 22 and 23, confrontations arose out of visitations to three drug centers (Merced, Oroville, and Granite Bay), during which teams of Local 588 agents appeared in the drug centers and extended their visitations to “backroom” areas, where stock is stored and marked, drug clerks take their breaks, and work schedules, and employee timesheets are posted. (As is reflected in my further findings below, it appears to have been of special importance to Local 588 in connection with these particular visitations to stake out a right of access to the backrooms, and a parallel right to inspect and copy employees’ names from the work schedules posted in the backrooms.) During the visita- tions to the Merced and Oroville drug centers, the store manag- ers threatened to, and eventually did, call the police to have a union agent evicted, arrested, and cited for trespass. In the third case, at Granite Bay, the union agents (one of whom, Glazer, realities than with making a rhetorical point of my own. Moreover, I note that Eidam himself had no trouble referring to these people as “UFCW business reps” (not as “IDCA’s representatives”) in his Octo- ber 23, 1992 letter to all drug clerks (discussed, infra), responding to employee-critics of the visitations that had by then taken place. 60 Raley’s did not issue written instructions and guidelines to its drug center managers for dealing with the visitation activity until October 27, 1992. See GC Exh. 145(A). This memo sets forth, inter alia, a script according to which the manager was to ask a visiting business agent for “ID,” then ask the “purpose of your visit,” and then advise the agent that the visit is “not necessary” because the drug clerks in the store “are already represented by [the name of the shop steward].” The memo further instructed the manager to “accompany” the agent if he “per- sisted,” and to tell the agent not to “interfere with the proper perform- ance of the work of employees,” or make any “unnecessary visits.” The memo stated that Local 588 was “attempt[ing] to take over the I.D.C.A.[,]” and that Local 588’s business agents were “trained agita- tors.” (These writings, incidentally, although hardly the only examples, are sufficient in themselves to demonstrate what is not in dispute in any case—that Raley’s harbored a decided antipathy towards Local 588.) 61 As Raley’s correctly notes on brief, it is either explicit or implicit in the testimony of most of the Local 588 representatives called to testify on the subject that they conducted seemingly dozens of unevent- ful drug center visitations in the aftermath of their designation by Ei- dam. (Specifically, such an overall finding is supported by the testimo- nial accounts of Thomas Epperson, Robert Morrison, Robert Porteous, Mark Tulowitzky, and Donald Weinreich. However, I disagree with Raley’s averral on brief that Local 588 agents, Donald Johnson and Andrew Alessi, also gave testimony that would support such a finding.) 62 Examples of brief interactions with drug center managers that ended with the managers’ backing-off appear in the testimony of Wein- reich, describing an early visit to the Mack Road drug center in Sacra- mento, and Porteous, describing visits to the Turlock and Modesto drug centers. (Although Porteous showed occasional confusion as to whether these incidents occurred in October 1992, after the October 19 “desig- nation” letter, or in September–October 1993, after the September 14 “disclaimer” letter, he clearly settled on October 1992 as his best mem- ory of the timing of the Turlock and Modesto store incidents.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416 had been arrested at Merced the preceding day) left only after the local manager called in the police. Local 588’s attorneys later filed a civil lawsuit on behalf of the arrested agents against Raley’s in a California Superior Court (styled Richard L. Glazer v. Raley’s Supermarkets), and the parties later privately settled that case on confidential terms.63 Even before (and perhaps overlapping with) the events at Merced, Oroville, and Granite Bay, Eidam had received com- plaints from IDCA members about the visitations, and some of these complainants were elected shop stewards in the drug cen- ters, whose historical function was to police and enforce the IDCA contract at the store level. (An October 23 memorandum to employees issued by Raley’s executive, Kenneth Collings, discussed infra, may have also inspired additional such critics, but Eidam’s testimony, and a letter he wrote to the drug clerks statewide on October 23, clearly indicate that he had received many calls from employee critics of the visitations prior to October 23.64) Eidam admittedly told the objecting members— both in his October 23 letter and in various prior and subse- quent telephone conversations with them—that if they were unhappy with having “Local 588 business reps” in the drug centers, he would make sure they didn’t return. In fact, the flurry of visitations seems to have abated soon thereafter, and the inference is irresistible that this came about because some- one—either Eidam or a Local 588 executive, or both—decided that the visitations weren’t such a good idea, after all, and is- sued instructions to put a halt to them.65 And here I also note 63 In par. 44 of the ultimate complaint, the Regional Director gave notice that the General Counsel seeks, as part of the remedy for the allegedly unlawful arrests, that Raley’s be ordered, “inter alia, to: (1) reimburse IDCA and its designated representative Local 588 for all reasonable legal fees and expenses incurred by them, including costs of appeal, in connection with their arrests; (2) on request, join in a petition to the respective courts and police departments to expunge any record of the arrests; and (3) notify in writing the respective courts and police departments of the findings of the National Labor Relations Board that Respondent Raley’s violated Section 8(a)(1) [sic] of the Act by causing the arrest of IDCA’s designated representatives.” Because I will find that Raley’s actions occasioning the October 1992 arrests violated neither Sec. 8(a)(5) (the actual touchstone of the complaint’s attacks on these arrests) nor Sec. 8(a)(1), I will not further address this aspect of the requested remedy. 64 Thus, during cross-examination by counsel for Raley’s, Eidam ac- knowledged that he wrote a letter to all drug clerks statewide on Octo- ber 23[*] responding to a series of prior complaints about the visita- tions, in which he stated, inter alia: “Re UFCW business reps. They are supposed to be there to help your shop stewards. If they are harassing you or interfering with you in any way, call us. If they are not helping they are out of there!” [*] Eidam’s October 23 letter was marked as R. Exh. 11, but its ten- der-in-full was withdrawn in the face of objection by counsel for Local 588. Thereafter, portions of the text of the letter referred to herein were read into the record without objection and were acknowledged by Ei- dam as accurate. 65 Exactly when these instructions were issued, and in what form, and how effective or comprehensive they were, all remain in doubt. For example, as is more fully described in part four, sec. I, infra, the record shows that Local 588 agent Tulowitzky paid two visits to the Grass Valley drug center in March 1993, even though IDCA Vice President Clark had advised Grass Valley drug clerk Ed Wright, who had com- plained about the visits, that Eidam’s designation of Local 588’s agents the civil suit deposition testimony of Local 588 agent, Hugh Wood (GC Exh. 178), introduced by the General Counsel with all-party agreement for substantive evidentiary purposes, wherein Wood stated pertinently (id. at 52), “I was told that there is a cooling off period and not to approach the drug side until further notice.” Moreover, because Wood stated in the deposition that he had never met Eidam in his life, and because the record otherwise shows that “IDCA’s designated represen- tatives” took their instructions from Local 588, not from Eidam nor from any other IDCA official, I infer that a Local 588 ex- ecutive was the party who instructed Wood “not to approach the drug side until further notice.” All of the counts in the complaint enumerated at the begin- ning of this subsection trace from a charge (docketed as Case 20–CA–24973) filed against “Raley’s Supermarkets” in IDCA’s name on October 28, 1992, by an attorney in the Davis, Cowell & Bowe firm. This charge alleged unfair labor practices under Section 8(a)(1), (2), (3), and (5), and averred as follows (emphasis added): Within the past six months, the employer has unlawfully in- terfered with the internal processes of the IDCA; has at- tempted to coerce and interfere with the leadership of the IDCA in selection and designation of its service representa- tives; has in violation of its collective bargaining agreement and the NLRA, arrested persons acting on behalf of the IDCA while in the normal course of their duties; and has taken nu- merous other actions in an attempt to dominate and control the IDCA. The original complaint issued pursuant to this charge on De- cember 11, 1992, did not allege any 8(a)(3) violations. How- ever, it included counts alleging Raley’s violated Section 8(a)(2) by “rendering unlawful assistance and support to a labor organization” in two specific instances—first by allegedly “permitting its employees who were opposed to the [IDCA] leadership to use [Raley’s] internal mail system and facsimile machines to exchange information critical of [IDCA’s alliance with Local 588] while concurrently denying [IDCA] the right to use [Raley’s] internal mail system or facsimile machines”; second, by the issuance of Kenneth Collings’ October 23 memo to employees, infra. Significantly, however, supplemental and superseding versions of subsequent complaints dropped the (facially puzzling) contention that by such alleged conduct Raley’s had rendered “unlawful assistance and support to a labor organization.” Rather, superseding versions of the com- plaint alleged only that such actions violated Section 8(a)(1). The original complaint further alleged that Raley’s had vio- lated Section 8(a)(5) and (1) by its managers’ responses to the October 22–23 visitations at Merced, Oroville, and Granite Bay. Specifically, it alleged under Section 8(a)(5) that these actions amounted to a “unilateral rescind[ing]” of established “terms and conditions of employment” in the drug clerk unit; and it alleged that certain of these actions, including (at Granite Bay) alleged acts of “following” the Local 588 agents and “physically bump[ing]” and “slapp[ing] the hands” of one of as IDCA representatives had been previously “rescinded due to the number of complaints received by the IDCA from its members.” RALEY’S 417 them, also amounted to independent violations of Section 8(a)(1). The 8(a)(5) counts triggered by the October 22–23 visita- tions to Merced, Oroville, and Granite Bay will occupy most of my findings and analyses in this part. There is only marginal dispute about certain particulars of the managers’ actions dur- ing these visitations, and everyone agrees that in each case the managers attempted to prevent the visiting union agents from doing such things as talking to the drug clerks while they were working, occupying backroom areas, and examining or copying names from the employee work schedules. But the legality under the Act of even the managers’ undisputed actions is a major question at issue, and it may be evident already that the resolution of that question will turn largely on the resolution of a more fundamental question: Did the visiting union agents operate under statutory protection in the first place when they conducted their visitations? Put more pointedly, the underlying question is this: What, exactly, is the basis for the General Counsel’s claim that such statutory protection existed? The visitation provisions in Section 10 of the IDCA contract? Estab- lished practice in the IDCA unit? A union’s general right, with- out regard to the existence of particular contract language, to designate representatives of its own choosing for purposes of collective bargaining? As we shall see, counsel for the General Counsel has rested on each of these theoretical branches as at least a momentary perch, but has flitted from one to the next with such bird-like adroitness that it is never certain exactly which branch, if any of them, may mark the location of her real nesting place. In subsection B., next, I will gather findings that I regard as relevant to the foregoing questions. I will start with findings bearing on the alleged existence of a certain “custom and past practice” under which visiting IDCA representatives were sup- posedly given “free access” to employees “during store hours.” This will be followed, in turn, by findings bearing on the moti- vations and purposes for the October 1992 visitations, and then by findings about what actually happened at the three drug centers that inspired nearly all of the complaint counts dis- cussed in this section. Finally, construing the General Coun- sel’s ultimate position to be that Raley’s committed an unlawful unilateral change by refusing to honor Section 10’s visitation provisions, I will explain my conclusion that the evidence will not support such a contract-violation theory. In later subsections, I will deal with the remaining 8(a)(1) counts, as set forth in paragraphs 9 and 15 of the complaint, judging ultimately that those counts are likewise without merit. B. The Alleged Visitation-Related Violations (Complaint Pars. 10, 12, 13, 14, and 34(d) and (f)) 1. The question of “custom and practice” under Section 10 Paragraph 34 of the complaint undergirds and informs all other “visitation” allegations. It states, in full, as follows: (a) Section 10 of the IDCA Drug Agreement referred to above in paragraph 7 included, inter alia, a provision that permitted IDCA’s designated representatives to visit Respondent Raley’s stores and service the Drug Unit em- ployees. (b) At all material times from about October 1992 un- til about September 14, 1993, IDCA designated certain in- dividuals employed by Local 588 to act as IDCA’s repre- sentatives and agents in administering the IDCA Drug Agreement referred to above in paragraph 7. (c) By custom and past practice, the IDCA’s desig- nated representatives were allowed free access during store hours to service IDCA Drug Unit employees. (d) About October 22 and 23, 1992, Respondent Raley’s, by the conduct described above in paragraphs 10 through 14, unilaterally rescinded the contract term and past practice described above in subparagraphs 34(a) and (c) and failed to continue in effect all the terms and condi- tions of employment of the IDCA Drug Agreement de- scribed above in paragraph 7. (e) The terms and condition of employment described above in subparagraphs 34(a) and (c) relate to wages, hours, and other terms and conditions of employment of the IDCA Drug Unit and are a mandatory subject for the purposes of collective bargaining. (f) Respondent Raley’s engaged in the conduct de- scribed above in paragraphs 10 through 14 and subpara- graph 34(d) without prior notice to IDCA and without hav- ing afforded IDCA an opportunity to negotiate and bargain as the exclusive representative of Respondent Raley’s em- ployees with respect to such acts and conduct and the ef- fects of such acts and conduct, and without IDCA’s con- sent. I pause here to note that one of these allegations—the “cus- tom and past practice” assertion in subparagraph (c)—is a rela- tive newcomer to the complaint, and so is the reference to “past practice” inserted into subparagraph (d). Thus, in the original complaint that issued pursuant to the charge in question (the December 11, 1992 complaint and notice of hearing in Case 20–CA–2493), there was no averral that there existed a histori- cal “custom and past practice” whereby “IDCA’s designated representatives were allowed free access during store hours to service IDCA Drug Unit employees.” Rather, that first com- plaint simply averred that the IDCA agreement covering the drug clerks “included, inter alia, a provision that permitted [IDCA’s] designated representatives to visit [Raley’s] stores, and that Raley’s had “unilaterally rescinded the contract term[,]” and had thereby violated Section 8(a)(5). And it was not until the issuance of the amended consolidated complaint of March 29, 1996, that subparagraph (c) was added, and subpara- graph (d) was modified, all to enable a contention that the ac- tions of the Raley’s managers during the three visitations in question violated not only a “contract term,” but an established “custom and past practice.” The complaint originally contained a further related allega- tion, set forth in paragraph 35, stating that, “[a]t all material times from about October 1992 until about September 14, 1993, Respondent Raley’s has failed and refused to recognize and deal with IDCA’s designated representatives and agents de- scribed above in subparagraph 34(b).” However, on March 13, 1997, after resting her presentation of the Government’s case- in-chief, counsel for the General Counsel acknowledged during DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418 arguments on Raley’s motion to dismiss paragraph 35 (among other counts) that paragraph 35 was not addressed to any mat- ters other than those described in paragraph 34 (which para- graph, in turn, incorporates by reference yet more specific al- leged misconduct set forth in paragraphs 10, 12, 13, and 14, quoted infra, dealing with actions of drug center managers dur- ing visitations at Merced, Oroville, and Granite Bay).66 In short, the General Counsel’s proof of alleged misconduct as set forth in paragraph 35 was coextensive with the proof offered in sup- port of other counts more particularly describing alleged mis- conduct by agents of Raley’s in reaction to the visitations that occurred on October 22 and 23, 1992. Accordingly, construing paragraph 35 in the circumstances as surplusage, I granted Raley’s motion to dismiss that paragraph. The several counts set forth in paragraph 34, when read to- gether with the other paragraphs incorporated by reference within the paragraph 34 counts, effectively treat the evictions, arrests, and other actions taken against Local 588’s agents at the Merced, Oroville, and Granite Bay drug centers as a “uni- lateral rescind[ing]” of established “terms and conditions of employment” in the drug clerk unit. As is evident from their text, the General Counsel takes the position in the complaint that these terms and conditions were established not only by the written provisions of Section 10, but also by a supposed “cus- tom and past practice” according to which “IDCA’s designated representatives were allowed free access during store hours to service IDCA Drug Unit employees.” In fact, however, the claim made in the complaint regarding the existence of a his- torical custom and past practice whereby Raley’s granted “free access” to IDCA representatives “during store hours” is an entirely hollow one. And, were it not for the vexatious reversal of position by the General Counsel described next, this sum- mary finding would be adequate for all further purposes. At the center of the problem are two relatively straightfor- ward, but mutually contradictory statements made by counsel for the General Counsel as to the alleged “custom and past practice”—the first an unmistakable concession during trial colloquy at the motion-to-dismiss stage that she had presented no evidence to support such a claim, and the second a conclu- sionary reassertion on brief of the same claim of fact that was the subject of her trial concession. Thus, at the motion-to- dismiss stage of the trial, the following pertinent colloquy en- sued (edited to omit interruptions and digressions): [JUDGE NELSON] All right. What about the point raised by the Respondent . . . that there’s no evidence of 66 Thus (Tr. vol. 37:7104): JUDGE NELSON: What’s distinct about the 34, paragraph 34 count? What makes it different from the specific acts that you elsewhere pleaded as discrete violations of— MS. KATZ: Do you mean the 35? What’s distinct about 35? JUDGE NELSON: That’s what I meant, yes. MS. KATZ: Well, it alleges throughout September 14th, 1993— JUDGE NELSON: I know what it says. Are you talking about anything other than what you’ve already alleged as discreet [sic] violations in paragraphs 34(a) through (f)? MS. KATZ: Factually, no, Your Honor. custom and past practice? I know what the contract says— actually, that’s slightly a lie, because I don’t have in mind the precise contract language. But, I know that the record shows the existence of a contract clause . . . having to do with rights of access, and certain limitations, and so forth. But, the question—at least one question raised by the mo- tion is, you pleaded custom and past practice. Do you have any evidence of that, or is it all merged into the lan- guage of the agreement itself? [. . . .] MS. KATZ: Actually, Your Honor, I don’t have any specific evidence of past practice prior to October of 1992. It’s intertwined with the contract language itself. [. . . .] JUDGE NELSON: And I suppose your argument would be, even if there was no practice, the fact that the contract permits it is enough to sustain the 8[(a)](5), if there’s—if it was shown that Raley’s refused, after October, to permit something that the contract apparently permitted. MS. KATZ: Yes, Your Honor. Despite this concession, Katz has unaccountably reasserted on brief that there was such a “custom and past practice.” Thus (emphasis added): In addition to violating Section 10 of the collective bargaining agreement, this is a unilateral change from Raley’s past prac- tice of unlimited access to the employees by the IDCA repre- sentatives and shop stewards. . . . Accordingly, the Judge is requested to find that Raley’s violated Section 8(a)(5) by uni- laterally changing Section 10 of the collective bargaining agreement and its past practice of permitting the IDCA repre- sentatives and shop stewards unlimited access to its stores. Katz’ concession at trial cannot be reconciled with her just- quoted claim in the posttrial brief, which she alone authored and signed. Neither can her self-reversal (that is to say, the General Counsel’s self-reversal) be explained away as the product of a perhaps incautious statement made in the heat of trial, followed by a more thorough analysis of the record after the trial closed, prompting the reassertion of the once- disavowed claim. If that were the case, I would have expected Katz, as an officer of the court with a duty of candor as to such matters, first to acknowledge the contradiction, and then to identify the evidence on which she now relies for reasserting the existence of a “past practice of unlimited access to the em- ployees by the IDCA representatives and shop stewards.” In fact, however, Katz has done no such thing; she has neither owned-up to the contradiction nor has she identified on brief by citation to any evidence of record the basis for her reassertion of the previously disavowed claim. Moreover, in trying to as- sess whether the reasserted claim is really intended seriously, or merely to cloud the unilateral-change issue, I have taken into account that the reasserted claim appears merely as a throw- away line at the conclusion of an argument that otherwise in- vokes Section 10 as alone conclusively establishing Raley’s legal duty to allow store visitations by anyone who might be RALEY’S 419 “designated” by IDCA as its “representative” for contract- “servicing” purposes.67 The General Counsel’s failure to identify any evidence of re- cord that might support the revival of the disavowed claim is itself a rather clear sign that the General Counsel now recog- nizes that the count alleging the existence of a “custom and past practice” of giving IDCA’s designated representatives “free” or “unlimited” access to employees “during store hours” was never supported by any proof. However, viewing it as my inde- pendent duty to make sure that counsel has not merely over- looked some evidence in the record that might support the reas- serted claim (perhaps introduced during the respondent parties’ presentations, for example), I have independently searched the record with this question in mind. As elaborated below, this time-consuming search has merely reaffirmed what was plain from Katz’ trial concession. I have discovered no evidence anywhere in the record of anything resembling a relevant “cus- tom and past practice,” especially none that might shed light on the contracting parties’ understandings or intentions with re- spect to the meaning or reach of Section 10’s provisions. This does not mean, however, that the record is wholly silent as to the general matter of “visits” to the drug centers by IDCA’s “representatives”; it only means that what minimal evidence exists in the record on the matter tends to show that union- related store visitations by IDCA’s representatives (whether pursuant to Sec. 10 or otherwise) were rare—too rare, in fact, to establish the existence of any genuine or meaningful “custom” or “practice.” A principal example is the testimony of Dora (Kay) Sordillo, a former chief executive of IDCA, who was called as a witness for Raley’s for purposes unrelated to the custom and practice issue. Her testimony contains incidental indications that, on a few occasions during her 28-year tenure in office (1962–1990), she visited one or more of the drug centers for some union- related purpose. (Her testimony also shows, however, that she was an employee of Raley’s throughout her IDCA tenure, and that in the final few years before she retired, her job for Raley’s as an “OTC Coordinator” required her to visit the drug centers on a regular basis for purposes unrelated to IDCA business.) But Sordillo’s occasional references to IDCA-related visits to the drug centers is entirely too fragmentary and vague, standing alone, to constitute substantial proof that Raley’s operated un- der a “custom and practice” of affording IDCA’s representative 67 Relatedly, I regard counsel’s introduction on brief of “shop stew- ards” into the mix as an unworthy attempt further to confuse the issue, i.e., as another red herring. This is because Sec. 10 clearly was not intended to be addressed to the rights of the shop stewards already inside each drug center, but to the rights of IDCA’s “business represen- tatives and any other persons designated by [IDCA] . . . to visit” the Drug Centers for certain defined “purpose[s].” There is no independent evidence that shop stewards had ever conducted Sec. 10-related visits to other stores prior to the alleged unilateral changes herein. In addi- tion, counsel’s implicit suggestion on brief that “shop steward” activity was encompassed in the “custom and past practice” allegation from the start, even if true, would be of no help to the General Counsel anyway, because there is likewise no evidence of any ”custom and past practice” under which shop stewards were given “unlimited access . . . during store hours” even to employees working in the same drug centers where the stewards were themselves employed. “free access” to the drug centers, much less “free access” to the drug clerks within each drug center, still less “free access” to them at any time “during store hours.” Moreover, Sordillo (unlike the Local 588 representatives designated by Eidam to conduct store visitations) was an employee of Raley’s at all times during her tenure as IDCA’s chief executive. And, with- out regard to the provisions of Section 10 of the IDCA contract, Sordillo’s employee status independently gave her statutory rights of access to employees in the drug centers under Repub- lic Aviation, supra, rights that “nonemployee” representatives of IDCA (if there ever were any prior to October 1992) simply did not share. (See authorities cited and discussed further in part six, secs. III and V.) Accordingly, evidence which may vaguely imply that Raley’s allowed Sordillo occasionally to visit drug centers for a union-related purpose may merely be evidence that Raley’s was accommodating employee Sordillo in the exercise of a Section 7 right that existed without regard to Section 10’s provisions. And that fragmentary evidence hardly establishes in any case that Raley’s gave IDCA’s repre- sentatives “free,” or “unlimited” access to the drug center em- ployees at any time “during store hours.” In addition, my judgment that there did not exist any mean- ingful historical “custom” or “practice” of store-visitations by IDCA’s representatives (whether under Sec. 10 or otherwise) is reinforced by similar findings made by Judge Myatt and adopted by the Board in Raley’s, Inc., supra, concerning the visitation “practice” (more precisely, concerning the absence of any such practice) prior to the 1979 election campaign precipi- tated by the “Retail Clerks” locals’ joint petition for an election in the drug clerks unit. Thus, in that case, even though noting the existence of the visitation provision in the IDCA agreement (256 NLRB at 948), Judge Myatt found that, “prior to the elec- tion campaign, representatives of IDCA rarely visited the stores more than once or twice a year.” Id. at 957; (emphasis added). I note further that, by way of underscoring the point, Judge Myatt cited the testimony of a shop steward at the South Lake Tahoe drug center, that she typically “dealt with Sordillo over the telephone when there were employee problems that re- quired [IDCA’s] attention.” Moreover, the absence of any his- torical practice of visitations by IDCA’s representatives clearly informed Judge Myatt’s ultimate finding, adopted by the Board, that, by condoning the “frequent,” campaign-inspired visits of Sordillo and other IDCA “representatives” to the drug centers during the preelection campaign, while simultaneously threat- ening drug clerks with discharge or discipline if they were caught talking to “representatives” of Local 588 or of its copeti- tioner Retail Clerks locals, Raley’s violated Section 8(a)(1) and (2).68 In sum, not only does this record fail to reveal any his- torical custom or practice of regular, union-related visitations by IDCA’s “representatives” to the drug centers (much less of “free access” to employees during such visitations), but the 68 Specifically, as previously noted, the ultimate finding of the Board in this regard was that Raley’s violated Sec. 8(a)(1) and (2) by “threat- ening employees with discharge or discipline if they spoke to represen- tatives of the Retail Clerks on company time while allowing representa- tives of IDCA to freely campaign among the employees in all areas of the stores.” 256 NLRB at 958. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 420 General Counsel’s sweeping and never-proved claims in the complaint and on brief to the contrary are to a substantial extent impeached by findings adopted by the Board in Raley’s, Inc., supra. Still less is there evidence in this record of any custom or practice between the contracting parties regarding whom IDCA might “designate” as a “representative” for purposes of Section 10 visitations. Indeed, there having been no underlying visita- tion custom or practice in the first place, such “designation” issues apparently never arose. Nor is there evidence of any custom or practice that might put flesh on the limitations on such visitations expressed in Section 10—namely, (1) that they be for the “purpose” of “observing working conditions, making inquiries from the employees concerning working conditions, complaints of members of the Association and/or any violations of this Agreement”; (2) that there be no “unnecessary visits”; and (3) that there be no “interference with the proper perform- ance of the work of employees[.]” Again, the absence of a visi- tation “practice” to start with seems to have left these contrac- tually expressed limitations quite untested. In any case, there is no evidence that IDCA had ever before deputized any “nonem- ployees,” much less agents of another union, to serve as its own business representatives for Section 10 visitation purposes. Accordingly, if the “unilateral change” theory of the prosecu- tion has any merit whatsoever, the merit would have to trace purely from the language of Section 10; that is, from a con- struction of the contractual commitment made by Raley’s in Section 10 which is uninformed by any suppositions about any “custom and past practice” under that section, as to which there is no useful evidence. Some additional observations on the matter: The absence of any useful evidence of visitation “practice” under Section 10’s provisions (or otherwise) would appear to be largely explained by the fact that each drug center already had a shop steward, elected by the drug clerks in each store, who was responsible for policing the contract at the store level, trying to resolve any local disputes, and initiating grievances when necessary. Thus, it appears that, historically, at least, IDCA executive-level offi- cers did not find it “necessary” to conduct store visitations for contract “servicing” purposes, given the network of shop stew- ards already in place. (And here, I recall again the 1981 finding made in Raley’s, Inc., supra, emphasizing the testimony of the shop steward at the South Lake Tahoe drug center that she typi- cally used the telephone to communicate with IDCA officials concerning any local problems that might require their “atten- tion.”) Relatedly, although the repeatedly stated rationale for the visits by Local 588’s agents was to “assist” IDCA in “servic- ing” the contract, there is not the slightest suggestion in the record as to why such visitation “assistance” might have been viewed by IDCA as “necessary” in or after October 1992. Cer- tainly, nothing in Eidam’s testimony explains why he may have judged it to be necessary to deputize Local 588’s entire staff for these purposes. Moreover, although Eidam asserted in his Oc- tober 23 letter to all drug clerks (supra) that the “UFCW busi- ness reps . . . are supposed to be there to help your shop stew- ards[,]” there is no independent evidentiary basis for supposing that the shop stewards themselves wanted, or needed, any such “help.” On the contrary, the record incidentally shows that some of the shop stewards saw the purported “contract- servicing” visits by Local 588’s agents as eclipsing their own traditional roles in the contract-administration process, and thus greeted the visiting Local 588 agents with the kind of hostility customarily reserved for unwanted, outside intermeddlers.69 2. Local 588’s admitted organizing designs; Eidam’s evident support It is obvious that Eidam would not have deputized 30 em- ployees of Local 588 as IDCA’s “fully-authorized Business Representatives” without having first secured Local 588’s con- sent and cooperation in the enterprise. (Indeed, it requires a leap of faith to presume in the first instance that the inspiration for the joint enterprise sprang from Eidam’s mind, or from a decision of his IDCA executive council.) And while the record contains no significant details about the origins of the venture, or about any background arrangements made between Eidam and Local 588, there is no reason on this record to suppose that Local 588 was a reluctant partner, and every reason to believe that its cooperation was enthusiastic. Thus, on or only shortly after October 19, Secretary-Treasurer Reginato and Co-Director of Organizing Jacques Loveall called a meeting attended by all of Local 588’s organizers and business representatives who were not then sick or on vacation, during which these execu- tives advised the attendees that Eidam had designated them all as IDCA’s representatives for purposes of servicing the IDCA contract, and instructed the agents to begin immediately to visit the drug centers within their respectively assigned geographical service areas for Local 588. Blending the recollections of attendees at this staff meeting (primarily, Grievance Coordinator Heise’s descriptions of the meeting, as echoed or augmented in more fragmentary form by other current or former Local 588 agents who testified on the subject), I find that Reginato and/or Loveall instructed the as- sembled staff as follows: (1) To “meet and talk with each indi- vidual person working in the drug centers”; (2) to introduce themselves as Local 588 representatives; (3) to hand out their Local 588 business cards; (4) to explain that they were assisting IDCA in servicing the contract; and (5) to tell the drug clerks to call them if they had any questions or problems. Jacques Loveall also passed out copies of Eidam’s designation letter and copies of Section 10 of the IDCA agreement to the atten- dees, and told them that they were to produce these if they en- countered any resistance from any store managers during their visitations. 69 See, e.g., the testimony of Local 588 Representative Porteous, concerning the “extremely hostile” and “rude” reception he got from the IDCA steward at the Turlock drug center after he had given her his Local 588 business card and had explained the contract-servicing “pur- pose” of his visit. See also the testimony of Redding shop steward Linda Goodwin concerning her confrontation with an unidentified visiting Local 588 representative who had introduced himself as the “shop steward” for the Redding drug clerks, until told by Goodwin that she was the shop steward and that he wasn’t welcome. See also the testimony of Oroville shop steward Frances Gage, infra, concerning her complaints to the drug center manager about the visitations made by three of Local 588’s agents to the Oroville drug center on October 22, 1992. RALEY’S 421 Relying on acknowledgments by Heise and others present at this kickoff meeting, I further find that the attendees were not advised of any particular existing “problem” or “grievance” that might make such visitations “necessary.” Nor were they furnished at the meeting with a full copy of the IDCA agree- ment they were supposed to be “servicing.” Still less were they provided with tutelage in the substantive terms and conditions of employment set forth in the IDCA contract. Indeed, none of the Local 588 agents called to testify on the subject claimed to be knowledgeable regarding the substantive terms of the IDCA contract (except for the language in Sec. 10), and most of them affirmatively conceded that they were quite unfamiliar with that contract. Nearly all of these witnesses also conceded that they didn’t know that each drug center already had an elected shop steward, much less did they know the stewards’ identities. Nor is there any indication in their testimony that any of them ever sought out or consulted with the local shop stewards during their visitations. (So much for Eidam’s claim in his October 23 letter to the drug clerks that the visiting “UFCW business reps” were there to “help your shop stewards.”) Moreover, there is not the slightest evidence that the ensuing visitations unearthed any dormant “grievances” (of whatever sort) among the drug clerks. Neither would the record support any claim that the visitations were either calculated to, or did, detect any viola- tions of the IDCA contract. Nevertheless, it clearly appears on this record that a sense of “necessity” unrelated to “contract-policing-assistance” con- cerns animated the decision (however, or by whom the decision was actually made) to dispatch Local 588’s agents into the drug centers to play the role of IDCA’s business representatives, and that the same sense of necessity animated Local 588’s willing- ness to divert its agents and its institutional resources to act in that role, particularly insofar as that role would permit its agents to make in-store contacts with the drug clerks. Thus, the record as a whole makes it rather obvious that Local 588’s co- operation in the enterprise was motivated by its own, quite distinct interest in “organizing” the drug clerks for the purpose of supplanting IDCA as the drug clerks’ bargaining agent. Or- ganizing Director Jacques Loveall effectively admitted this—in fact, he seemed to insist on the point—during the following adverse examination in the April 17, 1997 trial session: Q. BY MR. TELFEIAN:. . . Prior to September 14, 1993, you’re aware of no efforts by Local 588 to organize the Raley’s drug clerks on behalf of Local 588; is that correct? A. No. I would not say that’s correct. Q. How is that incorrect? A. I think, by demonstrating our support for Gil Ei- dam and the common knowledge among many people in those facilities that 588 was assisting Gil Eidam, was a compelling reason for them to want to affiliate with us. JUDGE NELSON: You’re saying, in the broadest sense of an organizing purpose, you would define that support for the IDCEA [sic] bargaining group leadership as— THE WITNESS: I think that could be construed as orga- nizing. JUDGE NELSON: All right. So, that’s what you meant by the answer. THE WITNESS: Yes. Q. BY MR. TELFEIAN: Anything else? Do you have any other actions that you’re aware of? A. Well, I would say the fact that business representa- tives were willing to go the extra distance to service those stores were an indication that we were interested in repre- senting them and that could be construed as organizing. Q. Anything else? A. Our sensitivity to various grievances that they had in that part of the company and [our] willing[ness] to take efforts to rectify those issues[70] and represent those peo- ple’s rights could be construed as organizing. Of course, such activities not only “could be construed as orga- nizing,” but Loveall’s testimony leaves hardly any room for doubt that this was Local 588’s precise intention. Moreover, see the following testimony of (by-then-retired) Local 588 Repre- sentative Donald Weinreich, as follows: Q. And you were also informed in a staff meeting sometime in October of 1992 that Local 588 had been asked to assist IDCA in connection with both its negotia- tions with Raley’s and also servicing the stores; is that cor- rect? A. That’s true. Q. And during the course of that meeting you were told that if you had Raley’s stores you should start going into the Drug Centers for the purpose of familiarizing yourself with the Drug Center employees; true? A. That’s true. Q. Also to introduce yourself to the employees so they’d know who you were? A. That’s true. Q. And weren’t you also told that the ultimate purpose of this was to organize those employees for Local 588? A. That’s true. In this regard, I note also Weinreich’s explanation for his em- barrassment during the October 23 confrontation between fel- low Representative Glazer and Drug Center Manager Christen- sen in the backroom at the Granite Bay drug center (detailed infra), as follows (emphasis added): There was several employees back there, and that was why I stayed pretty low-keyed, because I thought what this must look like to them, to those people, especially when we were wanting to represent them. And I don’t operate that way. Thus, it seems abundantly evident from the foregoing that, from Local 588’s standpoint, the designation of its agents as IDCA representatives would function as a license to enter the drug centers for purposes of demonstrating to the drug clerks that Local 588 was “interested in representing them,” and to present the drug clerks with a “compelling reason to want to 70 Although Loveall here alluded to “various grievances” in the drug clerk unit and to Local 588’s willingness to “rectify those issues,” he never identified what he was referring to in this regard. And from the utter absence in the record of any independent evidence that there then existed any such “grievances” or “issues,” I am strongly inclined to conclude that Loveall was here referring to empty categories. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 422 affiliate with” Local 588—in short, as a license to use its staff of agents to conduct a kind of in-store organizing campaign among the drug clerks that was not otherwise available to those nonemployee organizers under the teachings of Babcock & Wilcox, Lechmere, and Nick’s, supra.71 Thus, a wish to supplant IDCA as the drug clerks’ representative is both the admitted and the independently obvious explanation for Local 588’s enthusiastic willingness to “assist” IDCA by turning over its professional staff and other substantial institutional resources for the nominal purpose of conducting “contract-servicing” visitations into the drug centers. But can we properly impute Local 588’s motivations to Ei- dam—especially where Eidam generally professed in letters to the drug clerks to be acting only in IDCA’s interest in seeking Local 588’s “assistance” in “servicing” the IDCA contract, and never expressly admitted that he shared Local 588’s goal of supplanting IDCA as the drug clerks’ representative? Of course we can. First, that Eidam was a “supporter” of Local 588 was explicitly acknowledged both by counsel for Local 58872 and by counsel for the General Counsel.73 Second, and more fun- damentally, we are not obliged to play the naïf when it comes to assessing the motivations of key actors in a case, and we are not bound to accept their self-serving explanations for their actions at face value, especially where the surrounding circum- stances make those explanations highly dubious.74 And unless we were to dismiss Eidam himself as a hopeless naïf (a trait that I never detected during his lengthy appearance on the wit- ness stand), we would have to assume that Eidam, too, would readily see that the designations and the ensuing visitations would serve Local 588’s distinct organizing interests, and, therefore, that, in giving the green light to the venture, Eidam must have shared Local 588’s admitted goal of representing the drug clerks under its own banner, and intended the designations as a device that would significantly advance that same goal. 71 Separately, it is apparent from another aspect of Loveall’s testi- mony that Local 588 also saw—and used—Eidam’s designation letter as a cover for in-store organizing activities conducted by Local 588 during the same period among the unrepresented grocery workers in certain Raley’s stores. Thus, he testified that, “in a couple of instances” after October 19, when he was confronted by grocery managers about his in-store attempts to organize grocery workers, he produced Eidam’s letter to justify his presence. 72 See Tr. vol. 33: “it seems to me Mr. Telfeian is trying to get in to the kind of thing about the reason for [Eidam’s] supporting 588. And it doesn’t seem to me that’s relevant. The fact is, that he did. And that’s established on the record.” 73 See GC Br. 75: “Eidam was an open IDCA adherent and Local 588 supporter.” 74 See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966), where, in a passage (id. at 470) that is invoked regularly in the Board’s own decisions, the circuit noted that when, . . . [a]ctual motive, a state of mind, [is in] question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. . . . Nor is the trier of fact—here the trial examiner—required to be any more naif than is a judge. If he finds that the stated motive . . . is false, he cer- tainly can infer that there is another motive. More than that, he can in- fer that the motive is one that [the declarer] desires to conceal. Moreover, that Eidam held such sentiments at the time is in- dependently revealed in a letter he wrote to the drug clerk membership on October 24 (GC Exh. 154), responding to Ken- neth Collings’ October 23 memorandum to employees (infra). There, Eidam advised the IDCA members, inter alia, that the reason for Local 588’s presence at the bargaining table was “to protect you from getting a misleading contract full of loopholes and exceptions[,]” and to “[help] you get the best contract you can.” And this extolling of Local 588’s expertise and enthusi- asm as a bargaining agent for the drug clerks did not stop there, but was followed by remarks clearly intended to deprecate IDCA’s ability to function on its own as an effective bargaining agent. Thus, using as a launching pad the assertion that Ken- neth Collings’ October 23 memo had “possibly destroyed” the “positive relationship between the IDCA and Raley’s,” Eidam went on to observe, pointedly, that “[Collings] could not have done this if you were in some Union.” And I note that the capi- talization of “Union” in this instance was clearly meant to dis- tinguish IDCA, the “Association” that Eidam was nominally speaking for, from a “real,” capital-U “Union” (guess which)— an interpretation which is reinforced by the sentence that im- mediately followed: “But you are not, and your Board is trying its best to act in your best behalf.”75 3. October 22 confrontation at Merced drug center (complaint par. 10) Paragraph 10 of the complaint alleges: About October 22, 1992, Respondent Raley’s, by Richard Holgate, at Respondent Raley’s Merced, Califor- nia facility, in the presence of its employees: (a) demanded that IDCA’s designated representative leave the facility: (b) tried to prevent IDCA’s designated representative from reading the facility’s employee work schedule; (c) threatened IDCA’s designated representative with arrest if he refused to leave the facility; (d) made a citizen’s arrest of IDCA’s designated repre- sentative because he refused to leave the facility, and caused the police to arrest IDCA’s designated representa- tive as part of the citizen’s arrest. 75 I emphasize that I am not trying to depict Eidam as merely a stooge for Local 588; much less am I suggesting that his stated beliefs were insincere; indeed, I have no reason to doubt that he genuinely believed that the drug clerks would be better off under Local 588’s representation than under IDCA’s. My only intention is to point out what seems to me to be obvious in all the known circumstances: Eidam shared Local 588’s goal of supplanting IDCA as the drug clerks’ repre- sentative, and, by deputizing Local 588’s agents on October 19 as IDCA’s “representatives” for store-visitation purposes, was taking steps to help Local 588 achieve that shared goal. And whether this made him a quisling, or a fifth column within IDCA’s ranks, or simply a stalwart “Union man,” disenchanted with what he may have seen as the namby- pamby quality of the “Association” that he was elected to head (or something else entirely), are assessments that the IDCA members were clearly entitled to make, but certainly not this judge, nor the General Counsel, nor the Board, nor any other agent or agency of the United States Government. RALEY’S 423 These particular counts, understood as factually descriptive in nature, are substantially supported by the testimony of Local 588 Agent Richard Glazer, who, in the company of another Local 588 representative, Robert Porteous, visited the Merced drug center on October 22. As amplified below, Glazer and Porteous soon had a run-in with both the drug center manager, Mike Sacco, and the grocery manager, Richard Holgate, lead- ing ultimately to Glazer’s eviction and arrest by the local po- lice. Glazer’s testimony is undisputed (Porteous, called only by Raley’s as a witness for other purposes, was not invited to tes- tify about the incident in question, and Sacco and Holgate were never called as witnesses for any purposes.) In the circum- stances, I rely on Glazer’s account for the following findings: Glazer and Porteous entered the Merced drug center at about 11:30 a.m. (The Merced operation was unfamiliar to them; the grocery-side employees were unrepresented.) Once inside, they “walked the sales floor, looking for employees,” and soon “spotted one,” a woman whose identity was unknown to them. They “introduced [themselves] to her as representatives of United Food and Commercial Workers Union Local 588,” add- ing that they “were there to assist the Independent Drug Clerks Association in their current negotiations.” (Exactly how Glazer’s and Porteous’ being “there,” in the Merced drug cen- ter, might “assist” IDCA in its “negotiations” is a question that Glazer was never asked, and the record contains no independ- ent explanation.) Porteous handed one of his Local 588 busi- ness cards to the employee, and told her to “give him a call if she had any questions.” Glazer and Porteous then “continued to walk the sales floor looking for more workers[,]” and soon “spotted another employee [another woman, also unknown to them], approached her and pretty much did the same thing [they had done] with the previous one.” After introducing themselves to the second employee, the union agents asked her where the work schedule was posted, and she escorted them into the backroom, pointing to the schedule and employee time sheets mounted on a wall near the base of a staircase leading up to management and other offices. While they were looking at the schedule in the employee’s presence, Drug Center Manager Sacco came up, and Glazer and Porteous introduced themselves and handed Sacco their Local 588 business cards. Sacco “acted surprised” and said he “wasn’t aware that [the union agents] were allowed in the store.” Glazer suggested that Sacco call “Ken Collings” at the “main office.” Sacco then withdrew to a nearby telephone, had a brief conversation, then went upstairs for several minutes. During his absence, Glazer wrote down the names of the em- ployees listed on the work schedule—for the “purpose,” he says, of “look[ing] to see who was there that day, who was working that day, so I made sure I’d talk to everybody that was there that day.” (I am not at all persuaded by this explanation, which reappears in the accounts of other Local 588 agents re- garding similar name-recording incidents in backrooms at Oro- ville and Granite Bay, infra.76) 76 Glazer offered this explanation only after first acknowledging that he could not have discerned from examining or taking down names from the work schedule whether the IDCA contract was being violated (even assuming, contrary to his admissions, that he was familiar with Sacco returned 5–10 minutes later, accompanied by Grocery Manager Holgate. After the introductions were repeated for Holgate’s benefit, Holgate, too, “indicated that he had no knowledge that [the union agents] had permission to be in there and asked [them] to leave.” Glazer replied that they “were not going to leave; that we had every right to be in there and we were going to stay.” (While the quoted verbiage is admittedly ambiguous as to precisely what location both Glazer and Hol- gate were then referring to as “in there,” I think both the con- text and Glazer’s ultimate behavior, infra, reliably establish that “in there” referred in particular to the backroom area where the contesting parties were then located.) Glazer asked Holgate what he would do if Glazer refused to leave, and Holgate said he would have Glazer arrested. At about this point, Holgate pulled the work schedule and the timesheets from the wall, and handed them to the nearby employee, who took the papers up- stairs. Glazer then followed the employee up the stairs, fol- lowed, in turn, by Sacco and Holgate. Glazer watched as the employee deposited the papers in an office, then closed the door upon exiting. Glazer then tried to enter the office himself, but found that the door was locked. Glazer then tried to “reason” with Holgate, saying, “Look. All we wanted to do was be in there, introduce ourselves to the employees, pass out our business cards, and we were going to be on our way.” Holgate said that the union agents “weren’t supposed to be in the store,” and that “the main office” had instructed him to tell the union agents to “leave.” Porteous then “pulled out” a copy of Eidam’s designation letter and a copy of Section 10 of the IDCA contract and presented these to Hol- gate. Glazer again urged Holgate to call the “main office,” and Holgate then withdrew for another five minutes or so, while Glazer and Porteous waited at a table in the employee break area of the backroom. When Holgate returned, he repeated that the union agents had to leave, and Glazer reaffirmed that they intended to stay, and that Holgate should “do what [he] had to do.” Glazer and Porteous then stayed planted at the break table in the backroom for a few more minutes, until a local police offi- cer (“Officer Gilbert”) came into the backroom. Officer Gilbert conferred briefly with Sacco and Holgate, then took Glazer and Porteous aside, briefly asked for the union agents’ side of the story, and then asked them to step outside the store for further discussion. The union agents and Officer Gilbert then walked from the backroom, through the sales floor, and out the front door, where the conversation continued. Once outside, Glazer again contended that he and Porteous had a right to be in the that contract in the first place). And Glazer’s explanation does not in any case adequately explain why he felt it necessary to copy down the names. (It’s one thing to look at a schedule to get a sense of how many employees are supposed to be working that day; it’s quite another to painstakingly record all the names on the schedule on another sheet of paper.) Moreover, I note that Organizing Director Jacques Loveall, speaking more generally, testified that getting access to work schedules and timesheets was a “normal thing” associated with “organizing” campaigns conducted by Local 588. He further agreed that the value to Local 588 of such schedules and time sheets in an “organizing cam- paign” was that they permitted Local 588 to know the identities of the employees sought to be organized. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 424 store. Officer Gilbert then went back inside the store, then soon returned, saying, “They don’t want you back inside” and that the union agents would be arrested if they returned. Glazer reaffirmed that he intended to go back inside, because “that was what [he] was assigned to do.” Officer Gilbert went back into the store again, soon emerg- ing to announce to the waiting union agents that the managers had “changed their position,” and were now prepared to allow the union agents to “walk the sales floor, introduce [them]selves, [and] pass out business cards[,]” but that “[i]f [they] wanted to talk to” any of the employees, the agents “would have to do it on their [the employees’] breaks or lunch hours out in front of the store,” and that the managers would send the employees “outside” for such purposes. Glazer replied that the matter was “not negotiable,” and that he and Porteous “were going to go in there [and] talk to [the employees].” Glazer further declared that “[I]f [he] needed to go in the break room [he] would go in the break room because that’s where employees worked [sic]—or back room.” Officer Gilbert then went back into the store a third time, soon returning with the announcement that the union agents would be arrested if they went into “the back room or the break room.” Glazer replied, “Well, I guess I’m going to be arrested, because that’s where I’m going.” Glazer and Porteous then reentered the store and headed for the double doors giving entry to the backroom area, “wav[ing]” to employees on the sales floor as they passed. Sacco and Hol- gate soon appeared and followed the union agents, as did an- other police officer named Hausman. Glazer alone reentered the backroom, while Porteous remained on the sales floor. (Glazer had prearranged with Porteous that Glazer would “take the arrest,” because “[t]here was no sense in both of us being ar- rested.”) As soon as Glazer passed through the backroom doors, Holgate again asked him to leave, and Glazer reaffirmed his intention to remain, insisting again on his “right to be back there.” Holgate then conferred briefly with Officer Hausman and then told Glazer he would be arrested if he didn’t leave. Glazer replied, “Well, I’m not leaving, so go ahead and arrest me.” Holgate then said, “I’m placing you under citizens’ arrest for trespassing.” Following this, Officer Hausman handcuffed Glazer and led him back through the store, plainly visible to employees on the sales floor, and out the front entrance, to a parked squad car. Porteous followed them out and did not re- turn. Officer Hausman transported Glazer to the Merced County Jail, where he was booked and then released with a citation for trespass and a summons to answer the citation in court. 4. October 22 confrontations at Oroville drug center (complaint pars. 12 and 13) At roughly the same time on October 22, similar dramas were being acted out by a different troupe of actors at a differ- ent location, the Oroville drug center. The union actors were Hugh Wood,77 Tom Epperson, and Larry Heise. Wood and Epperson were business representatives for Local 588. 77 On brief, the General Counsel consistently misrenders Wood’s surname as “Woods.” Epperson held the additional title, “Meat Department Coordina- tor”; and Heise held the title “Grievance Coordinator.” The principal actor for Raley’s was Oroville Drug Center Manager Jack Smith. Paragraph 12 of the complaint alleges: About October 22, 1992, Respondent Raley’s, by Jack Smith, at Respondent Raley’s Oroville, California facility, in the presence of its employees: (a) informed IDCA’s designated representative that he could not speak to any employees unless it was about a specific grievance; (b) demanded that IDCA’s designated representative leave the facility; (c) made a citizen’s arrest of IDCA’s designated repre- sentative because he refused to leave the facility, and caused the police to arrest IDCA’s designated representa- tive as part of the citizen’s arrest. These counts refer to events that occurred over the course of two distinct visitations to the Oroville store on October 22. As elaborated below, in the first episode, Union Agent Wood en- tered the drug center by himself; was asked by Drug Center Manager Smith to leave after Wood had gone into the back- room and had inspected and copied names from the work schedule, and Wood then left without a fuss. In the second epi- sode, about 1–2 hours later, Wood returned to the drug center in the company of Union Agents Heise and Epperson, this time with instructions to “take an arrest” if need be. During this second visit, the union trio went to the backroom and again studied the work schedule, causing Smith eventually to call the police. In the end, Wood alone became the “designated repre- sentative” for purposes of “taking” the citizen’s arrest. Again, the undisputed evidence supports the essentially fac- tual counts of the complaint set forth above. However, in this instance, all four of the above-named actors offered testimony about the relevant transactions—either “live” testimony (Heise and Epperson) or in deposition form (Wood and Smith), or a combination of the two (Wood).78 In addition, Frances Gage, the IDCA shop steward for the Oroville drug clerks in October 1992, was called to the witness stand by Raley’s, and gave her own account of what she had observed and done during the visitations. There are a predictable number of discrepancies and shifts of emphasis among these various witnesses. (In Gage’s account in particular, she seems to have merged the two sepa- rate visitation episodes into a single, continuous episode.) I draw on credible and undisputed features from all of their ac- counts in making the following findings, usually indicating which of the several witnesses is my source for any particular finding: 78 Heise and Epperson gave live testimony as the General Counsel’s witnesses. Wood, called adversely as a Raley’s witness during the trial, testified somewhat sketchily about the events at Oroville, but by all- party agreement, this testimony was eventually supplemented by the deposition he gave about those events (GC Exh. 178) in connection with the civil suit brought against Raley’s. Smith’s deposition (R. Exh. 38), given in the same civil suit, was similarly received into evidence in lieu of his witness stand appearance. RALEY’S 425 From Wood’s deposition testimony, I find as follows: Wood first entered the Oroville store alone, at about 11 a.m., using an entrance that allowed access into both the supermarket and drug center sides of the store. After pausing to say “hey” to two gro- cery clerks at the grocery check stands, he walked into the drug center and introduced himself to two or three “drug side em- ployees” on the sales floor, and passed out his business cards to them. (From Gage’s account, I infer that Gage was one of these employees.) Wood also told the drug clerks that “Gil who is the president of IDCA had requested [Local 588’s] assistance for informing and servicing [IDCA’s] members.” (In fact, Wood had never met “Gil” prior to this visit, and he never met him at any point after that, either.) Wood eventually asked one of the drug clerks where the work schedule was posted, and was told it was posted in the backroom. He then walked into the back- room, found the posted schedule, and asked a nearby employee which of the names on the schedule were “members of man- agement,” explaining that he wanted to note on his own “route sheet” which were managers and which were unit employees. The employee said that the “top four” names on the list were members of management, and then left the area. Wood then wrote down the names of all the nonmanagers listed on the schedule and also recorded their scheduled days of work. From Drug Center Manager Smith’s deposition testimony and from shop steward Gage’s roughly corroborative account, I further find as follows: Gage had received complaints about Wood’s presence from two of the other drug clerks to whom Wood had initially introduced himself, and she had seen Wood go to the backroom and begin reviewing the work schedule. Gage then went upstairs to Smith’s office, reported that she had seen Wood “going through the work schedules,” reported that she had gotten complaints from the two employees, said she didn’t think Local 588’s agents had a right to be in the back- room going through the schedules, and asked Smith to do what he could to stop it. Gage then left and Smith placed a call from his office to company headquarters in Sacramento and spoke to Sam McPherson, the vice president for human resources. After transmitting Gage’s report, Smith asked McPherson what he wanted Smith to do. McPherson told Smith he wanted the indi- vidual to “leave.” Smith then left his office and found Wood. In his deposition, Smith recalled that he found Wood still in the backroom, reviewing the work schedule, with IDCA shop steward Gage standing nearby. (Gage does not corroborate the latter.) Wood, although referring to having left the “break room” after copying names and other information from the schedule, appears to agree that he was still at least in the back- room area when Smith approached him. (Thus, he later recalled regarding his initial contact with Smith that Smith had said that Wood “had no business in the backroom.” In addition, Wood recalled, regarding the same initial meeting, that he “had origi- nally given the document [Eidam’s designation letter] to Jack Smith in the backroom.”) I credit Wood that Smith told him in this initial backroom encounter that Wood had no business being there. Wood and Smith agree, and I find, that Smith also told Wood that he would be allowed to talk to employees only if they had a “specific grievance.” Wood states, and I find, that Smith then “politely” asked Wood to leave, and that Wood, just as politely, agreed to leave, which he promptly did. From Wood’s deposition account, I find that once Wood ex- ited the drug center, he called Local 588’s offices and asked for his “immediate boss,” Union Representative Coordinator Tur- sky, who was absent, and then asked for Grievance Coordinator Heise, who was present and took the call. After Wood reported what had just happened, Heise instructed Wood to “go back into the store and service the grocery and meat department,” and to await a “page” from Heise. Wood complied, and about a half-hour later, he received Heise’s page and called him back. According to Wood, Heise instructed Wood to “go back over to the drug side and tell them that you will be back at a later date or time to service the drug clerks.” However, from Heise’s account, I find that Wood either misunderstood (or misre- ported) Heise’s second message to him, or that he failed to recall a more specific instruction from Heise, perhaps one de- livered later, prior to the second visitation episode that day. Thus, I credit Heise’s testimony as follows: After first learning that Wood had been told to leave the drug center, Heise had then consulted with Secretary-Treasurer Reginato, who in- structed Heise to join Wood in Oroville and go back into the drug center with him, and that, this time, the agents should be prepared to “take an arrest,” if it came to that. Heise then enlisted another Local 588 agent, Tom Epperson, to go with him to Oroville. (From Epperson, I find that Heise explained that Epperson was to serve as a “witness” during the events that would soon ensue.) Heise and Epperson met up with Wood at an Albertson’s store in Oroville, then the trio traveled together to the drug center. Once inside, the trio spent 10–15 minutes on the sales floor, during which they introduced them- selves to several employees and passed out business cards. (Heise specifically recalled that they met with four employees during this phase, and that the only employee visible on the floor to whom they hadn’t yet spoken was the “pharmacist,” who was not a member of the drug clerks bargaining unit, and, therefore, was not covered by the labor agreement that the Lo- cal 588 representatives were supposedly in the drug center to “service.”) The trio soon went into the backroom area and re- examined the work schedule. (Heise, like Glazer at Merced, insisted that the purpose of this examination was to match the names and numbers of employees on the day’s schedule with the names and numbers of employees they had already spoken with, to ensure that they had “talked to” all the employees be- fore concluding their visitation. However, I observe that this explanation is hopelessly lame in these particular circum- stances, because Wood had already copied down all such names and schedule data on his own “route sheet” during his initial visit.) The union trio was soon joined by Gary Lowe, one of the as- sistant drug center managers, who advised them that Drug Cen- ter Manager Smith wanted to talk to them in his office. (From Smith’s deposition, I find that Smith learned of the union trio’s presence in the backroom upon his return from lunch, when he was so advised by Lowe.) Heise and Wood then followed Lowe to Smith’s upstairs office. (Crediting Epperson, I find that Epperson peeled away from the group at this point and went into the meat department on the supermarket side while Wood and Heise met with Smith.) There is general agreement that, after everyone was assembled in Smith’s office, Smith told the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 426 union agents that he wanted them to leave the store. Heise then gave Smith another copy of Eidam’s designation letter, and Smith then excused himself to make another call to McPherson at Sacramento headquarters. McPherson reaffirmed his earlier instructions, according to Smith, and further instructed that the union agents should be removed from the premises, by arrest if need be. Smith returned to Wood and Heise and conveyed that message to them. The union agents voiced their refusal to leave the drug center, then left Smith’s office and returned to the sales floor, where they were soon rejoined by Epperson. The union agents congregated near the pharmacy, and Wood took some time to take a reading on his blood pressure, using a de- vice available near the pharmacy counter for this purpose. (The blood pressure reading was emphasized by Wood in his deposi- tion in the civil suit, apparently to support a claim for damages due to emotional distress.) In the meantime, Smith had called the police, then had come down to the floor where the union agents were congregated. Two police officers soon arrived, and took the antagonists to separate corners to get each side’s story. The union agents told the officers that they didn’t intend to leave until they had talked to everyone in the store. (As previously noted, Heise’s testi- mony indicates that, long before this point, the union agents had already talked to all the employees covered by the drug clerk labor agreement that were visible in the store, and they already were privy to schedule information that would have indicated whether or not there were any other drug clerks left to talk to.) The police officers reaffirmed that the union agents would be arrested if they didn’t leave, but the union agents didn’t budge. Eventually, however, it was worked out somehow between the union group and the police officers that Wood would be the only one to take the arrest. (Heise testified that it was the police officers who alone made the decision to select Wood as the arrestee. I seriously doubt it, and I don’t think my doubts require elaboration.) One of the police officers then gave Smith a “citizen’s arrest” form, and Smith signed it, whereupon a police officer took Wood by the arm and escorted him from the store, again in view of the employees. Once out- side, the officer issued a citation to Wood and a summons to appear in court. Paragraph 13 of the complaint refers to another event that al- legedly occurred during the afternoon visit to the Oroville drug center. It states as follows: About October 22, 1992, Respondent Raley’s, by Bob George, at Respondent Raley’s Oroville, California facility, in the presence of its employees, ordered IDCA s designated representatives to leave the facility. This count is linked to the testimony of the three union agents that, in the course of their afternoon visit, an apparently “managerial” person unknown to any of them had joined Smith and, like Smith, had separately ordered the union agents to leave the drug center. Heise had the impression that the “other manager” was in charge of the grocery operation. Epperson thought the same individual was part of the drug center hierar- chy. Wood didn’t know who the individual was, but he had known Bob George (the grocery manager) for years, and he expressed certainty that the “other manager” was not George. Smith acknowledged that George was, indeed, the grocery manager at Oroville, and that George was, indeed, present at one point during his after lunch confrontation with the trio of union agents; however, Smith did not report that George issued any such separate “order.” Considering all this, I judge that, even if the union agents were credited that the “other manager” separately instructed them to leave the store, the record as a whole does not preponderate in favor of a finding that Bob George was that other manager. However, these observations merely skirt around a more fundamental point: It cannot matter in any way to the outcome of this case whether or not George gave instructions to the un- ion agents similar to those admittedly given by Smith himself. Thus, if, contrary to my judgments below, Smith’s admitted “order” were unlawful, that would alone justify a Board order to Raley’s and all of its officers and agents to cease and desist from such conduct or any “like or related conduct,” and the terms and scope of the cease-and-desist order would not be affected even if George, too, were found to have separately instructed the union agents to leave. Accordingly, viewing it as merely a distraction without independent significance to the case, I decline to enter further findings with respect to the “Bob George” controversy. 5. October 23 confrontation at Granite Bay drug center (complaint par. 14) Confrontations of a similarly ritualistic character occurred on the next day, October 23, when Local 588 Agent Glazer (ar- rested the previous day at Merced) paid a call on the Granite Bay drug center, this time in the company of brother agent Donald Weinreich, a formidably massive individual.79 In this case the principal company actor was Drug Center Manager Lee Christensen.80 However, this time, the confrontations had a more distinctly in-your-face flavor than any of the previously- described ones, and involved some bumping, shoving (by Glazer), and other incidental physical contact between Glazer and Christensen, as Glazer strode into the backroom vowing to examine the work schedule, and Christensen tried at various points to impede his progress, finally ending up with his back to the wall, blocking the schedule itself. 79 Weinreich spontaneously described himself as someone who “fill[s] the door” when he enters a room, and he testified for clarity of the record that he is 6 feet 4 inches tall and weighed upwards of 400 pounds at the time of the Granite Bay visit. Separately, I note that neither Glazer nor Weinreich explained how or why it was that Weinreich came to be selected to accompany Glazer on the Granite Bay visit. Weinreich also acknowledged that Granite Bay was not part of his regular service area for Local 588, and that his October 23 visit to the Granite Bay drug center with Glazer was his first, and only, visit to that store. It deserves further note, however, that, by all accounts, Weinreich’s role in the ensuing confrontations was essentially that of a bystander, and, by his own account, a rather embar- rassed one at that. 80 The complaint spells this name as “Christiansen,” and Raley’s uses that spelling on brief. However, the transcript variously spells it as both “Christiansen” and “Christensen.” Moreover, despite the spelling in the complaint, the General Counsel has adopted “Christensen” on brief. I don’t know how Mr. C. spells his own name. (No one asked him during his recorded testimony.) Thus, arbitrarily, I adopt “Christensen.” RALEY’S 427 This is how paragraph 14 of the complaint characterizes what happened: About October 23, 1992, Respondent Raley’s, by Lee Christiansen, at Respondent Raley’s Roseville (Granite Bay), California facility, in the presence of its employees: (a) threatened IDCA’s designated representative with arrest if he did not leave the facility; (b) on more than one occasion physically bumped IDCA’s designated representative while ordering him to leave the facility; (c) followed IDCA’s designated representative as he walked through the store; (d) slapped the hands of IDCA’s designated represen- tative as he attempted to copy employee names from the facility’s employee work schedule. Glazer is the “designated representative” in question, and the General Counsel relies almost exclusively on Glazer’s testimo- nial descriptions to support these counts. Raley’s relies largely on Christensen’s testimony, borrowing too from Weinreich’s account and from that of Shirley Grady, a drug clerk who wit- nessed some of the events. In fact, the accounts of all these witnesses are in most respects harmonious, if occasionally somewhat impressionistic, and the differences among them have to do mostly with matters of emphasis and sequence. I am certain that none of the witnesses’ versions from their respec- tive vantages can be taken as accurately capturing every nuance of every incident or exchange that occurred throughout the entire visitation episode, much less their precise sequence. Therefore, I can’t rely on any single account as the basis for my findings. However, in the few instances where there exist plain conflicts between the accounts of Christensen and Glazer, the two principal antagonists, I rely on Christensen, who impressed me far more than Glazer as a witness who was sincerely trying to reconstruct from genuine memory, and without self-serving shading, what happened at any given moment of the visitations. Nevertheless, some of Glazer’s memories that are not directly disputed by Christensen (particularly the chest-to-chest “bump- and-push” moment described below) seemed vivid and genu- ine. Accordingly, my findings below incorporate some of Glazer’s memories as well, and reflect overall a piecing to- gether of the most plausible, credibly delivered, and not directly contradicted features variously to be found in the accounts of each of the witnesses. Upon their entry into the Granite Bay drug center at about 11:30 a.m., Glazer and Weinreich first spent several minutes on the sales floor, introducing themselves initially to drug clerks Shirley Grady and Laura Shadd, who were then working to- gether on a cosmetics order. After exchanging introductions with Grady and Shadd, Glazer and Weinreich next approached a nearby drug clerk, Rachel Solada, who was stocking mer- chandise in the OTC aisle, and began a conversation with her. At about this point, apparently, Gregg Germ, the pharmacist on duty, called Drug Center Manager Christensen, and reported that two “guys” who Germ said he thought were Local 588 agents were talking to Solada on the sales floor. Christensen then left his office and descended to the sales floor. In the meantime, an assistant drug center manager, Tracy Coan,81 had already approached Glazer, Weinreich and Solada, and told the union agents either that they didn’t “have a right to bother our employees” (Glazer), or that they “weren’t allowed to talk to [the employees] on company time” (Grady). Christensen arrived on the scene soon after this, while the union agents were still talking to Solada, who was then stand- ing idle with stock items in her hand. The union agents paused to introduce themselves to Christensen as representatives of Local 588. Christensen said he wasn’t aware that Local 588 represented the drug clerks, whereupon Glazer explained that they were representing IDCA, and produced a copy of Eidam’s designation letter. After inspecting the letter, Christensen said that the agents had no right to interrupt the working employees and would have to leave. Glazer said that they were just intro- ducing themselves and passing out their business cards, and that they would leave only when they had finished talking to all the drug clerks. Glazer testified that Christensen also vowed during this ini- tial confrontation to “follow” the union agents as they patrolled the sales floor, and that Glazer rejoined that this would be an “unfair labor practice.” No one else reports such an exchange, but because I regard such verbal fencing as at least a predict- able part of the pregame warmups, I will assume the truth of Glazer’s testimony. However, I am convinced that Glazer was embellishing mightily when he further testified, although quite vaguely, that, immediately after this exchange, he spent some uncertain but apparently brief amount of time walking the sales floor in search of more employees to introduce himself to, and that Christensen “followed” him during these rounds. Rather, based on Christensen’s more distinct and plausible account in this regard, supported in part by Grady, I find that the only “following” in these moments occurred when, as further de- scribed below, Glazer soon turned from his initial encounter with Christensen and made a beeline for the double doors into the backroom, and was then “followed” (and overtaken at in- tervals) by Christensen. Moreover, I credit Christensen that this “leapfrogging” had been itself immediately preceded by an exchange in which Glazer had asked where the work schedule was posted, and Christensen had replied that it didn’t matter, because Glazer had no right to look at it. Glazer and Christensen roughly agree that, as Glazer strode purposefully up the aisle toward the doors into the backroom, Christensen tried several times to head him off, and that Glazer “bumped” past or “brushed” by Christensen each time, either by accelerating his pace or by using a kind of sidestepping ma- neuver. As Glazer drew near the backroom doors, however, Christensen got directly in Glazer’s path. (This appears to be the moment referred to by Christensen on cross-examination as involving the most “significant” instance of “brushing.”) At this point, Glazer admittedly did not change stride nor slip to the side, with the necessary consequence that Glazer bumped into 81 The transcript sometimes spells this name as “Coan” and other times as “Cohen.” However, both the General Counsel and Raley’s uniformly spell it as “Coan” on brief, and, in deference to this rare instance of harmony, I adopt the latter spelling. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 428 Christensen squarely, chest-to-chest.82 At this point, Glazer admittedly “pushed” Christensen aside, using both arms, whereupon Christensen “backed off,” and yielded the lane into the back room, but then followed closely on Glazer’s heels, as did Weinreich. Glazer also testified, regarding the chest-to-chest, “bump- and-push” moment preceding his entry into the backroom, that he warned Christensen, “If you touch me again, I’ll have no alternative but to defend myself.”83 Christensen, incidentally, does not report having been “pushed” by Glazer or that Glazer uttered any such words. However, again regarding such an exchange as a likely part of the gamesmanship being acted out by the players, I will assume that Glazer’s memory on this point was accurate.84 Once the opposing players were inside the backroom, the match up resumed. Christensen caught up with Glazer and again got in front of him, as Glazer, spotting the schedule on the wall, advanced in that direction. Christensen maintained position in front of Glazer, but retreated as Glazer advanced, Glazer insisting on his right to examine the schedule and Chris- tensen asserting that Glazer had no such right and would be arrested if he didn’t desist. Christensen finally retreated to a point where his back was directly against the posted schedule and Glazer was again chest-to-chest with him, with the massive Weinreich only a step or two away. Glazer, Christensen, and Grady agree that when Glazer and Christensen were thus faced-off, there came a moment when Christensen swatted Glazer’s hand, or at least “pushed” Glazer’s hand “down” (Grady), using a quick, swiping gesture that is just as fairly described as a swat (or perhaps even a “slap”). Glazer says this occurred when he tried to reach over Christensen’s shoulder to pull the schedule from the wall, and 82 The General Counsel has concluded that it was Christensen who “bumped” Glazer, and not vice-versa. (The complaint, of course, al- leges the same thing.) To support this conclusion, the General Counsel has been obliged on brief to propound an elaborate, “bump-causation” analysis—an odd amalgamation of intersection-collision law and bas- ketball rules that I regard as too fatuous to merit further attention. 83 Regarding this statement, one might reasonably wonder: “No al- ternative but to defend” against what, exactly? Christensen’s “failure to yield” some imagined “right-of-way?” Clearly, Glazer had “alterna- tives” to advancing unswervingly to the chest-to-chest collision. And just as clearly, regardless of the self-servingly “defensive” words he employed when he admittedly pushed Christensen aside, Glazer was issuing a familiar veiled warning of further violence to come if Chris- tensen were to try once more to block his passage. 84 If the reader imagines from the descriptions above and below that Glazer and Christensen were acting like opposing basketball players in a one-on-one match, Glazer on offense, advancing toward the net, and Christensen on defense, trying to block him, with each trying to estab- lish “position” and to draw a foul from the other, and with a bit of trash-talking thrown in for extra flavor, the reader is not alone. That’s pretty much the way Weinreich saw it, too, as follows: “Well, it was like I was watching an NBA game. There was a guy body blocking the other guy. And the guy wouldn’t let the other guy shoot. It was that simple. One was trying to head the other off, and the other one was trying to get [past] him.” Indeed, Glazer himself, embracing the same metaphor, described his own actions (quite improbably) as an attempt to effect a “moving screen.” (A screen for whom? Weinreich? He didn’t need one.) Glazer further reports that Christensen’s swat caused him to threaten to “sue” Christensen for “assault.” By contrast, Chris- tensen and Grady testified that the swat happened while Glazer was repeatedly jabbing a finger in Christensen’s chest, causing Christensen to swat Glazer’s hand to ward off the finger jabs. Weinreich, who didn’t report any “reaching” for the schedule by Glazer (nor any swat or comparable gesture by Christensen, for that matter) nevertheless recalled that once Glazer and Christensen were chest-to-chest in front of the schedule, Glazer “was poking-pointing his finger, but I don’t think he was jam- ming it into the guy’s chest.” Before turning to a narration of the final phase of the Octo- ber 23 visitation, I will digress to make some concluding obser- vations about the episodes narrated to this point, and about some of the claims made in the complaint and in the prosecu- tion brief regarding them: First, focusing on the most recent narrative, I would readily rely on Christensen’s, Grady’s, and Weinreich’s common memories that Glazer was jabbing his finger at Christensen while they were chest-to-chest to find that this was the sole reason for Christensen’s swat. But I don’t think such a finding is at all necessary, for, without regard to whose account may have been the more reliable one, I deem it independently prob- able in all the known circumstances that Christensen’s swat was motivated not at all by his admitted determination not to permit Glazer to examine (much less remove) the schedule, but rather, by Glazer’s chest-to-chest propinquity to Christensen, by Glazer’s moving his hand in some manner in the direction of Christensen’s upper body or face (even if Glazer were trying simply to reach past Christensen for the schedule), and by Christensen’s subjective fear, reasonable in the tense circum- stances, that Glazer might be about to escalate the standoff into a physical attack. Indeed, in the end, it seems probable from everyone’s account that the swat was a momentary and instinc- tively self-protective gesture on Christensen’s part, and nothing more. Second, and in any case, I reject as a wholesale distortion of the underlying reality the characterization in the complaint of this swat as “slapp[ing] the hands of IDCA’s designated repre- sentative as he attempted to copy employee names from the facility’s employee work schedule.” By the use of such verbi- age, the author of the complaint was clearly trying to suggest that Glazer was simply standing with pen in hand, trying to copy names from the schedule, when Christensen came up and administered the “slap” as a kind of schoolmaster’s punishment for Glazer’s naughtiness (“slapped the hands”). There is no evidence of record that would support such a depiction. In fact, even if Glazer’s account were taken as literally true, it would be clear that Glazer was not then trying to “copy” any names from the schedule, but was reaching for the schedule itself when Christensen swatted his hand (not “hands”) away. Third, I have essentially similar but even more impatiently unsympathetic reactions to the General Counsel’s attempts on brief (at pp. 53–55) to elevate the “bumping” and “swatting” moments of the Glazer-Smith match to something equitable to an unlawful “assault on a union representative in the presence of employees.” Indeed, I think the prosecution was itself swat- RALEY’S 429 ting at gnats by trying to make an independent Federal case out of these particular moments of incidental physical contact.85 Back to reality: In the midst of the confrontation in the back- room, Christensen had instructed an assistant drug center man- ager, Jim Maier, to call the police. (Glazer alone recalled— improbably, given the agreed-on circumstances—that Christen- sen left the backroom in the midst of the standoff to make a phone call.) The first law enforcement agents to arrive in the backroom were two men identically dressed in khaki shirts and green short pants with insignia on these uniforms identifying them as State Park Rangers, apparently employed at the nearby Granite Bay State Park. (Glazer did not report this, but recalled instead that a deputy from the Placer County Sheriff’s office was the only law enforcement officer who soon arrived in the backroom. Again, I rely on Christensen, who recalled that the “Rangers” arrived first in the backroom, and that the sheriff’s deputy arrived several minutes later, after further events de- scribed next.86) The Rangers attempted to sort out the situation, and their presence apparently ended the standoff between Glazer and Christensen. The Rangers soon persuaded Glazer and Weinreich to leave the backroom. (Glazer acknowledges, without recalling that the Rangers were then involved, that he did, in fact, leave the backroom at about this juncture, and went over to the grocery side of the store and talked to Local 588 members on that side.) Christensen thought then that the episode was “over.” How- ever, some minutes later, Glazer returned to the backroom in the company of a Placer County Sheriff’s deputy. The deputy opined (citing his mother’s experience as a longtime, union represented employee of Safeway, and his own review of Ei- dam’s designation letter) that the union agents had a “right” to be in the drug center. Christensen disputed the deputy’s curb- stone legal opinion, and the deputy then agreed to place a phone call to his “sergeant.” The deputy left to use a telephone in a nearby office and soon returned and said he wouldn’t make an arrest himself, but that Christensen could make a “citizen’s arrest” if he were determined to evict the union agents. Chris- tensen then questioned the deputy further about the procedures for a citizen’s arrest and the deputy said he would escort the union agents from the store if Christensen signed a citizen’s arrest form. However, in response to further queries from Christensen, the deputy suggested that this would probably be a useless gesture in itself, because the union agents could just 85 These observations can be taken as my final assessments of the merits of the complaint’s attacks on conduct by Christensen as de- scribed in subcounts (b) and (d) of complaint paragraph 14, supra. Put in other words, these judgments reflect my conclusion of law that, no matter what else may have been unlawful about Christensen’s various attempts to bar the union agents from talking to the employees on the sales floor, or from gaining access to the back room and/or the work schedule, he did not implicate Raley’s in an independent violation of Sec. 8(a)(1) by “bumping” Glazer (itself reflecting a weirdly inverted interpretation of the evidence) or by defensively swatting Glazer’s hand. 86 On cross-examination by the General Counsel, Grady recalled see- ing both “Park police” and “Sheriff’s officers” in the store. However, she had left the backroom before they came to the backroom, and was not privy to any contacts between or among any of the law-enforcement agents, Christensen, and the union agents. come back without jeopardy, requiring the citizens-arrest pro- cedure to be repeated from scratch. While Christensen was mulling over how to proceed, the question became moot, be- cause Weinreich reappeared inside the backroom and said to Glazer that he had talked to all the remaining employees. Glazer smiled at this news, and he and Weinreich then walked from the backroom and exited the drug center. Two more loose ends: Glazer testified, and Christensen de- nied, that at some point in the backroom after the deputy ar- rived, Christensen relented slightly, saying “there wasn’t going to be any arrest,” and that Glazer would be permitted to “talk to the employees, pass out business cards,” but that Christensen would “follow [Glazer] around wherever [he] went.” Glazer further claims that he then went over to two employees working nearby in the backroom and introduced himself, and that Chris- tensen followed and stood immediately behind him as he did this. Glazer’s descriptions are not at all compatible with Chris- tensen’s far more detailed and credible account of the events during these final moments, and Glazer is not corroborated by Weinreich or anyone else. I judge that Glazer was again gilding the lily in these respects, and that there was neither any partial relenting by Christensen nor any “following” on Christensen’s part.87 6. Concluding analyses and judgments as to alleged visitation-related violations There can be no doubt from the foregoing findings that Raley’s, through the actions of its managers at the Merced, Oroville, and Granite Bay stores, took affirmative steps to pre- vent visiting union agents from talking to drug clerks on the sales floor while they were working, and from entering or stay- ing in the backroom areas, and from viewing or copying names from the work schedules. It is equally clear that when the union agents refused to desist from such conduct, the managers in each case threatened to have the union agents arrested, and (at Merced and Oroville) did, in fact, cause the arrest of the union agent who had volunteered (or had been assigned) to “take the arrest.” Finally, it is reasonably clear that in several instances, the managers demanded that the union agents “leave” the Drug Centers completely, on the general ground that they had no right to be “in there” in the first place. However, as to this latter category of activity, I think it is also clear that the managers’ statements were not based on the union agents’ mere presence in sales-floor areas of the store open to the general shopping public, but on their actual conduct during their presence in those areas, i.e., their tracking down and buttonholing of work- ing employees. Similarly, with respect to orders to “leave” 87 My judgments here and earlier that there was no such “following” as described by Glazer may be taken as my final assessments of the merits of the complaint’s attacks on conduct described in subcount (c) of paragraph 14, supra; that is, as dismissing the complaint for want of credible proof insofar as it alleges that such following occurred. Alter- natively, even if such following could be found to have occurred, my ultimate judgment that the union agents’ visitations to and actions within the store were contractually unprivileged (and thus statutorily unprotected) would cause me to conclude that Raley’s right to control nonemployee access to and conduct within its stores necessarily im- plied Christensen’s right to follow the union agents to ensure that they did not interfere with the work of employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430 uttered when the union agents were in the backroom areas, it seems obvious that the managers were not reacting merely to the union agents’ passing presence in those areas (it’s not as if they were just customers looking for the bathroom, after all), but to their conduct and evident purpose for being there— particularly, their determination to examine and copy names from the work schedules. Further in this regard, I note that the managers did not simply intercept and seek to evict the union agents as soon as the union agents had entered the Drug Cen- ters, but in each case waited until the agents had done some- thing on the sales floor (or in the backroom area) that was ap- parently inconsistent with their presence as mere members of the general shopping public. The managers’ actions at the three stores in question are sig- nificant to the merits of the case only if the union agents oper- ated under some direct or derivative statutory right to enter the Drug Centers to do what they actually did or tried to do (but- tonhole employees on the floor, chat them up, pass out their business cards, patrol the backroom areas, inspect, and copy names from the schedules). Indeed, it was never in doubt that the managers’ conduct as described above “interfered” with the activities of the union agents as described above. Therefore, if the union agents were operating under the protective mantle of the National Labor Relations Act (the Act or NLRA) when they engaged in these activities, it would seem necessarily to follow as a matter of law that Raley’s, through the managers, abridged the Act in at least some respect. If, on the other hand, the union agents’ activities were not shielded by the Act, it would appear that the managers had every right to treat the union agents as mere trespassers, and the particular manner by which they han- dled the trespasses would not appear to implicate the NLRA. In the ensuing discussion, I will analyze only the question of the union agents’ rights under the Act, if any, to do what they did or tried to do. For reasons discussed already, the union agents, being “non- employees” of Raley’s, operated under no presumptive statu- tory right to enter the Drug Centers to communicate with em- ployees inside—whether the communication be for an “orga- nizing“ or “soliciting” purpose, or even for a contract- “servicing” purpose. (Moreover in this regard, it would not matter to the analysis whether the employees sought to be con- tacted inside the stores were “on-” or “off-duty,” or even whether the union agents were in “public” or “nonpublic” areas when the managers sought to prevent their activities or to evict them. The dispositive point is that the union agents were con- ducting solicitation and other nonshopping activities inside the stores, the “access” to which and the conduct within which Raley’s plainly had rights under the teachings of Babcok & Wilcox, Lechmere, and Farm Fresh, supra, to control and to limit to “shopping” activities.) Rather, whatever access entitle- ments the union agents may have possessed under the Act would have to derive from more unique circumstances and legal considerations. And here, I return to questions posed at the outset of this section: On what special basis, exactly, does the General Counsel assert that the union agents were entitled as a matter of Federal law to enter the Drug Centers for pur- poses of doing what they did when the managers sought to interfere with, or even to squelch their activities? Put even more pointedly, the ultimate question framed by the complaint is this: On what basis does the prosecution rest its claim that the man- agers’ actions at Merced, Oroville, and Granite Bay implicated Raley’s in an unlawful “unilateral change” in the “terms and conditions of employment” of the drug clerks in the IDCA- represented unit? As I have suggested earlier, the General Counsel, through a variety of devices, has done a good job of obscuring the precise theory of prosecution as to the alleged “unilateral change.” (Nor is such obscurantism limited to the counts now in ques- tion, as will become evident in due course.) As further noted in the next subsection, we are asked, among other things, to treat Raley’s actions as analogous to situations where an employer unlawfully refuses to come to the bargaining table based on objections to the composition of the union’s “designated” bar- gaining team. For reasons discussed in the next subsection, I don’t think the analogy is a very good one, and even if it were, the law that governs such situations would not ultimately work in the General Counsel’s favor, primarily because there plainly exists in this case “substantial evidence of bad faith or ulterior motive” both in Eidam’s designation of Local 588’s agents as IDCA’s business representatives and in the conduct of the agents involved in the visitations to the three stores where the alleged violations occurred. For now, however, it is enough to note that such arguments by analogy have nothing to do with a “unilateral-change-in-terms-and-conditions” theory of 8(a)(5) violation. And if nothing else is clear about the General Coun- sel’s position, it is at least clear that notions of “unilateral change” lie at the heart of the General Counsel’s attacks on the managers’ behavior during the visitations to the Drug Centers in Merced, Oroville, and Granite Bay. Thus, the counts in the complaint as to the visitation episodes (particularly as set forth in par. 34, supra) plainly aver in the aggregate that the visiting union agents’ rights, and Raley’s corresponding duties, were grounded in established “terms and conditions of employment” in the drug clerks unit. But on what basis, exactly, does the General Counsel maintain that such “terms and conditions” were “established?” Here, both the complaint and the General Counsel’s arguments on brief invoke two, arguably independ- ent bases: (1) a supposed “custom and past practice” whereby “IDCA’s designated representatives” had always been given “free [or “unlimited”] access to the employees during store hours,” and/or (2) the language of Section 10, allowing for store visitations by such representatives for certain defined purposes and subject to certain defined limitations. We can safely disregard the custom-and-past-practice theory; it is utterly bankrupt from an evidentiary standpoint, and the General Counsel’s summary reassertion of it on brief after con- ceding at trial that she had presented no such evidence simply reflected a disturbing lapse in appropriate candor, and, relat- edly, a significant distraction for the trier-of-fact. Such distrac- tions aside, it is reasonably clear that the General Counsel’s unilateral-change attack is now driven purely by a “contract- violation” theory, that is, a theory grounded in the General Counsel’s construction of the language of Section 10, unin- formed by any suppositions about “custom and past practice” under that Section. And this means, in turn, that we must our- selves construe the language of Section 10 to determine RALEY’S 431 whether that language can legitimately lead to the ultimate conclusion advocated by the prosecution—that Raley’s violated Section 8(a)(5) by breaching commitments made in Section 10 of the IDCA contract. It’s worth trying to tease out in greater detail the reasoning apparently employed by the General Counsel in arguing a “pure” contract-violation theory: Although the prosecution brief lacks a systematic exposition of the underlying legal thinking even as to that theory, it is fairly clear from the ar- rangement of the allegations in complaint paragraph 34, that the General Counsel has employed something close to the follow- ing, essentially syllogistic form of reasoning: What is Sought to be Proved: Raley’s violated Section 8(a)(5) by unilaterally changing terms and conditions of employment as established in the IDCA labor agreement covering the drug clerks. Premises: (1) An employer violates duties owed to its employ- ees’ exclusive representative under Section 8(a)(5) (par- ticularly as those duties are more specifically defined in Section 8(d)), when, during the term of a labor agreement negotiated with the exclusive representative, and without obtaining the “consent” of the exclusive representative, it “modifies” (or refuses to honor, or affirmatively breaches in some other manner) a provision in the labor agreement negotiated by the exclusive representative. (2) Section 10 of the IDCA contract gave IDCA (and, in turn, Eidam, as IDCA’s president) the right to “desig- nate” Local 588’s agents as IDCA’s own business repre- sentatives for purposes of exercising rights available under that Section. (3) The purpose for Eidam’s designation of Local 588’s staff as IDCA’s business representatives was, in fact, to assist IDCA in administering and policing compli- ance with the IDCA Drug Clerk agreement. (4) During their visitations to the Merced, Oroville, and Granite Bay Drug Centers, Local 588’s agents were, in fact, engaged in contract-administration activities on IDCA’s behalf authorized by Section 10. (5) Raley’s, without first obtaining IDCA’s consent to do so, variously interfered with the contract-administration activities of the union agents in the three named stores, in- cluding by arresting or threatening to arrest them. (6) First Conclusion: Raley’s thereby violated Sec- tion 10 of the IDCA contract. (7) Ultimate Conclusion: Raley’s thereby violated Section 8(a)(5) of the Act. (Q.E.D.) In all attempts to employ syllogistic reasoning in aid of real- world analysis, legal or otherwise, the validity (i.e., the reliabil- ity or usefulness) of anything stated as a conclusion depends entirely on the real-world truth of each of the premises set forth in the syllogism. And this means in this case that for the Gen- eral Counsel’s conclusion to be treated as valid, each of the premises set forth above cannot merely be accepted as true, a priori, but must have been independently demonstrated to be true. Otherwise, no matter how tidy the syllogistic form, the conclusion is practically valueless—a point captured neatly, if bluntly, in the now familiar expression first coined by computer software programmers, “Garbage In: Garbage Out.” Let us now examine the premises on which the General Counsel apparently rests the ultimate conclusion that Raley’s violated Section 8(a)(5): I will not find it necessary to quibble over the validity of the first premise, supra; for it is at least generally true that an em- ployer who, without the union’s consent, repudiates or other- wise refuses to honor a provision in the union contract during its term will commit an unlawful unilateral change in violation of Section 8(a)(5). Accordingly, for these purposes, I accept the first premise. As to the second premise (actually, two distinct premises collapsed into one), I have more serious doubts, and I empha- size that these doubts have nothing to do with the question whether or not Eidam, as IDCA’s president, had power under IDCA’s by-laws to “designate” Local 588’s staff as IDCA’s representatives for visitation/contract-administration pur- poses.88 Rather, my doubts about the validity of the second premise are really doubts about the appropriateness as a matter of statutory policy—and the reasonableness as a matter of con- tract interpretation—of construing Section 10 as ceding to IDCA the effective right to subcontract to a different union and its agents the visitational and contract-administration rights available to IDCA under that section. Although the Board does not appear to have confronted this precise question (at least no party has cited any authority and I have discovered none), there may be sound reasons of statutory policy alone for not construing IDCA’s contractual right under Section 10 to “designate” its representatives for visita- tion/contract-administration purposes as conferring on IDCA (or Eidam) the right to subcontract such important ongoing representational functions to a wholly different union, espe- cially where employees in the drug clerk unit were not shown to have been given an opportunity to vote on the subcontracting decision. See generally NLRB v. Financial Institution Employ- ees Local 1182, 475 U.S. 192 (1986); see also, e.g., Mike Basil Chevrolet, 331 NLRB 1044 (2000) (affiliation of independent labor organization with UAW local met the “due process” re- quirements of the Board where affiliation based on majority vote of employees represented by independent union, and, therefore, affiliation did not result in an “identity change” suffi- cient to raise a “question concerning representation”).89 Beyond 88 As previously noted, the General Counsel submitted a motion in limine seeking to bar litigation of that question, and I granted the mo- tion. 89 Compare Western Commercial Transport, Inc., 288 NLRB 214, 217–218 (1988), cited in Mike Basil Chevrolet, supra, finding “discon- tinuity” of representation following an affiliation between a previously unaffiliated and “autonomous” certified union representing employees of a only single employer (like IDCA ) and a District Lodge of the International Association of Machinists representing vastly larger num- bers of employees of many employers (like Local 588), and thus dis- missing a petition to amend the unaffiliated union’s certification to designate the IAM District Lodge as the exclusive representative. But compare further, Service America Corp., 307 NLRB 57, 60–61 (1992), finding continuity-of-representation following a merger of Carpenters and Teamsters locals, distinguishing Western Commercial Transport, supra, on grounds that would not be available herein, and thus dismiss- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432 questions of statutory policy, there may be sound evidentiary reasons in this case for not construing Section 10 as ceding a right to subcontract IDCA’s contract-administration function to an outside union, especially if the subcontractor is Local 588. Thus, Raley’s admitted longstanding antipathy toward the prospect of Local 588 functioning in any way as the representa- tive of its drug clerks makes it rather dubious from the start that Raley’s, by originally agreeing to the language in Section 10 some decades earlier, intended that this language could legiti- mately be invoked as the basis for deputizing Local 588’s staff to serve as IDCA’s “business representatives.” Moreover, the testimony of Kay Sordillo, IDCA’s chief executive for the first 28 years of its existence, contains strong indications that she had always viewed the “Retail Clerks” as a representational rival, not an ally, and thus could not have intended any such outcome, either. Therefore, if the contracting parties’ “original intent” with respect to the meaning or reach of Section 10 is legitimately a part of this contract-construction analysis, these considerations militate heavily against accepting the General Counsel’s construction. Nevertheless, for purposes of this analysis, I will set aside all such doubts and will assume, with- out deciding, that the second premise is valid, as well. However, it is when I focus on the validity of either of the propositions set forth above as premises (3) and (4) that I con- front doubts so profound that they stand as insuperable obsta- cles to my acceptance of any further links in the General Coun- sel’s apparent chain of reasoning. And it is these doubts—utter skepticism, really—that I recapitulate below. The General Counsel would have me find that “assisting” IDCA in its “contract-policing” function under the auspices of Section 10 was the “purpose” for the designations and the ensu- ing visitations to the Drug Centers. Not only that, the prosecu- tor would have me find that “contract-policing” (or “servicing the contract,” or “servicing the employees,” or “servicing the store,” or other such cant) was what the teams of Local 588 agents were actually doing during the particular visitations that triggered the unilateral-change counts, i.e., the visitations to the Drug Centers in Merced, Oroville, and Granite Bay, on October 22 and 23.90 All such claims strike me in all the known circum- ing the employer’s RM election petition on the basis that there existed no “question concerning representation.” 90 I have alluded earlier to the mantra-like repetition in the complaint and the General Counsel’s brief of terms like “IDCA’s designated representatives” to describe the Local 588 agents performing the visita- tions and their purpose in performing the visitations. I have already set forth most of the counts in the complaint that illustrate the point. Other examples abound throughout the General Counsel’s brief. But nowhere do they appear with such monotonously incantational frequency (as if, by hopefully chanting such phrases over-and-over, this might somehow cause the world outside to rearrange itself accordingly) than in the General Counsel’s “Statement of Facts” relating to the events at Merced, Oroville, and Granite Bay. Thus (GC Br. at 42–45): On October 22 . . . IDCA representatives Rick Glazer and Bob Porteous went to the Merced . . . store to service the drug center employees on behalf of the IDCA. . . . . Before Glazer was able to finish speaking with employees about problems in the store or other issues relating to Raley’s stances as standing on nothing more than fiction piled upon fiction. Thus, as I analyze the evidence bearing on the overall purpose for the designations and visitations, and on the particu- lar purposes and the nature of the activities conducted during the visits to the three stores in question, I reach quite different conclusions, most of which I have telegraphed in previous find- ings. First, I find as an overarching matter of fact that the “con- tract-policing-assistance” rationale for the flurry of store visits was a phony rationale from the start. Put another way, in terms that have special resonance even in this context, I find that the designation of the Local 588 agents, and the visitation cam- paign that quickly ensued, were intended and orchestrated ex- clusively for an “ulterior purpose”—to permit Local 588’s agents to conduct what were, at bottom, organizing activities on behalf of Local 588 among the drug clerks, activities aimed at supplanting—not “assisting”—IDCA as the drug clerks’ repre- sentative. (Remember: Under Babcock & Wilcox and Lechmere and their progeny, Raley’s could have lawfully refused to grant trespassory access to Local 588’s agents if they had been open about their organizing and IDCA-supplanting aims, and thus it was clearly necessary for Eidam and Local 588 to concoct a phony rationale for the visitation campaign.) Relatedly, I judge that the visitations in general, and espe- cially at the three Drug Centers where the managers’ actions triggered all of the “unilateral change” counts in the complaint, amounted to little more than vote-getting theatrics, akin to handshaking and baby-kissing during whistlestop campaigning by a candidate for political office. Moreover, I judge that the visitations were calculated not just to advertise to the drug clerks that Local 588 stood “ready and willing to represent them, and likewise (as Jacques Loveall put it) to present them with “compelling reasons for wanting to affiliate with” Local 588, but to persuade the drug clerks that Local 588 was already their representative. Thus, the visitations can also be construed as flag-planting gestures, calculated to symbolize Local 588’s new dominion over the Drug Centers and the local drug clerks. Seen yet another way, with particular emphasis on the visita- tions to Merced, Oroville, and Granite Bay, the calculation appears to have been to create confrontations that would im- press the drug clerks with Local 588’s militancy in the face of compliance with the collective bargaining agreement, Glazer was placed under citizen’s arrest[.] . . . . On . . . October 22. . . IDCA representative Hugh “Woody” Woods [sic] went to the Oroville. . . store to speak with the em- ployees or otherwise service the Drug Center employees on behalf of the IDCA. . . . . Later that same day, [Wood] returned to the Oroville. . . store with IDCA representatives Larry Heise and Tom Epperson, to fin- ish policing the IDCA contract. . . A few minutes later, while the IDCA representatives continued to service the store, Grocery Manager Bob George told the IDCA representatives that. . . they would be arrested if they did not leave the store. . . . . On October 23. . . IDCA representatives Rick Glazer and Don Weinreich went to Raley’s Granite Bay Drug Center to service the IDCA contract on behalf of IDCA. RALEY’S 433 management resistance. And it scarcely requires adding that it does not affect the validity of these interpretations of Local 588’s and Eidam’s calculations going in that these parties may have miscalculated how such gestures would be seen by many of the locals. All that matters is that, on this record, such inter- pretations far better explain the motivations for the designa- tion/visitation campaign than the “contract-policing-assistance” rationale which the General Counsel has uncritically embraced and proffered so enthusiastically in support of the “contract- violation” theory of unlawful “unilateral change.” In addition, even though the in-store activities of Local 588’s agents at Merced, Oroville, and Granite Bay might have in some ways resembled what agents of a recognized union with contractual rights of store access might be expected to do as part of their union’s contract-policing function, the resemblance was merely superficial, and does not in any case establish that the visiting Local 588 representatives were, in fact, engaged in contract-policing activities authorized by Section 10. And here I emphasize features of Section 10 which the General Counsel has conveniently ignored in asserting that the visitations in- volved no more than legitimate exercises of IDCA’s contractual rights: Apart from placing limits on the “purposes” that would legitimize any given visitation, Section 10 also expressly im- poses overriding limitations on such exercises; it states (1) “there will be no unnecessary visits”; and (2) there will be “no interference with the proper performance of the work of em- ployees covered by this Agreement.” Since a contract-violation theory is now at the heart of the General Counsel’s unilateral-change case, let’s start by focus- ing on the contractual proscription against “unnecessary visits.” In this regard I note that the General Counsel, who maintains that Local 588’s agents were engaged in contract-policing func- tions authorized by Section 10 during visits to the three stores where the alleged unilateral-change-by-contract-breach was made manifest, is nevertheless conspicuously silent when it comes to making a case that the visitations to those stores were “necessary” within the contemplation of Section 10. Appar- ently, the General Counsel expects us simply to presume, a priori, that the visitations were “necessary” under Section 10, and to forget, in the process, that it is the General Counsel who bears the burden not only of coming forward with affirmative evidence that would establish the elements of the prosecution theory—here, the contract-violation theory—but of proving those elements by a preponderance of the credible evidence in the record as a whole. However, the General Counsel has cited no authority for the interposition of such a burden-relieving “presumption,” and I am aware of none, especially in a case like this one, where we’re talking purely about matters of con- tract-interpretation as the basis for the allegation that the ac- tions of the managers at the three Drug Centers implicated Raley’s in an unlawful unilateral change in its drug clerks’ established terms and conditions of employment. Especially under those circumstances, it seems to me, the burden of estab- lishing “necessity” under the contract properly lies with the party who asserts that the conduct in question was contractually privileged, and the party, moreover, who is in the best position to establish through testimony or other evidence more readily available to it than to its opponent exactly why the conduct was seen as “necessary.” (In this context, the word necessary can only be understood in terms of IDCA’s “needs,” or perhaps the unit employees’ “needs.”) Indeed, it would seem to be irrational to place on Raley’s the burden of proving the contrary proposi- tion—that the visits were “unnecessary”—where Raley’s was never advised by Eidam or by Local 588 as to the supposed “necessity” for the visitation blitz and could not possibly be expected to read the minds of either Eidam or Local 588 as to the question of supposed necessity. I have also previously noted that Eidam’s testimony contains no indication even that he believed that the visitations were “necessary” in terms of IDCA’s legitimate representational interests, much less an explanation for why he might have held such a belief. I have also noted, on the other hand, the evidence showing that the only apparent sense of “necessity” animating the visitations was the perceived “need” to give Local 588 an opportunity to “organize” the employees for the purpose of supplanting IDCA. Thus, Local 588 agents did not come pre- pared for their supposed contract-“policing” missions with the kinds of equipment one might expect them to be furnished with, if that were, indeed, what they were really expected to be doing (such as with copies of the IDCA contract that they were sup- posed to be “policing,” and advance tutelage in the provisions of that contract). Moreover, the record affirmatively shows that the visiting agents did not receive any substantive directions from Local 588 (much less from Eidam) as to how to “police” the IDCA contract (unless generalized instructions to introduce themselves and distribute their Local 588 business cards to every employee in the Drug Centers qualify as such substantive directions—and it’s hard to see how they would so qualify). I have likewise noted the numerous factors tending affirmatively to establish the contrary proposition—that the visitations were, in fact, “unnecessary” (except in terms of Eidam’s and Local 588’s mutual wish to have Local 588 supplant IDCA as the drug clerks’ representative). Thus, each store already had an elected shop steward responsible for contract-administration functions, and, from a historical standpoint, store visitations by IDCA officials were so rare that we may safely infer that they were not seen as historically necessary in order for IDCA to perform an effective contract-policing function. In addition, I have suggested in a variety of ways how diffi- cult it is to discern from the actions of the visiting agents, par- ticularly the actions of the teams of agents at the Merced, Oro- ville, and Granite Bay Drug Centers, any genuine attempts to “police compliance” with the IDCA contract. Thus, the record does not disclose in the first instance any obvious reason for Local 588’s decision to send two agents—or even three, in the case of the Oroville visitations—to each of these stores. (How many agents are “necessary” to “police” a single Drug Center’s compliance with the contract? Nothing in the General Coun- sel’s case answers this obvious question.) Nor does the record contain any affirmative indication that the union agents even attempted to determine from the employees they talked to whether the employees were aware of any contract violations, or had any grievances or concerns under the IDCA contract. Neither does the record reveal any “policing” purpose, as dis- tinguished from a Local 588 “organizing” purpose, for the visit- ing agents’ fascination with the work schedules posted in the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 434 backrooms. Significantly, in this regard, Eidam’s testimony affirmatively indicates that IDCA, the union supposedly being “assisted” by such activity, received periodically-updated lists from Raley’s of all drug unit employees’ names and addresses. And, especially considering the latter, it is reasonable to ask, Why was it a “necessary” exercise for contract-“policing” pur- poses to record—or try to record—the names of all the employ- ees listed on the work schedules?91 In sum, we are left with a record that supplies no substantial indications of a contract-policing purpose for the visitations, nor indications of contract-policing activity during the visita- tions, nor indications of any perceived necessity for the visita- tions. Rather, the General Counsel invites us simply to take it on faith that if Eidam deputized the Local 588’s agents as IDCA’s representatives, he must have felt that it was necessary to the proper performance of IDCA’s representative function to do this, and, so long as the visitation activity involved conver- sations between union agents and employees, all inquiry must end there. Similar points can obviously be made with respect to Section 10’s proscriptions against visitations that “interfere” with the work of employees covered by the IDCA agreement. While “interference” (like “unnecessary visits”) may be an elastic and difficult notion to apply to a given instance of behavior, espe- cially in the absence of evidence of “past practice,” it is appar- ent, at least, that Local 588’s agents at the three stores in ques- tion made a point of buttonholing and chatting-up employees while they were working, and then for no obvious purpose other than to introduce themselves as agents of Local 588 and to get their business cards into the employees’ hands. I think my reasoning has been made plain enough. My ulti- mate conclusion of law is that the General Counsel has failed to establish by a preponderance of the credible evidence in the record as a whole that Raley’s committed an unlawful unilateral change in the terms and conditions of drug-clerk unit employ- 91 This is not to say that it would be impossible to rationalize the vis- iting agents’ examination and recording of names from the schedules in terms of a contract-“policing” purpose. No doubt such rationali-zations could now be promulgated at leisure by counsel for the prosecuting parties. And, indeed, anyone could imagine specific scenarios in which such activities might well be justified as “necessary” for “policing” purposes (e.g., to ensure that Raley’s was not putting employees to work in bargaining unit positions without including them in the peri- odically-updated listing it transmitted to IDCA). This is only to say that no witness was tendered by the General Counsel who even pretended to offer a legitimate, contract-policing explanation for such behavior. At most, Glazer, et al. merely attempted to explain such behavior in terms of their wish to make sure that they had “talked to” all the employees in the Drug Center before departing. But this is an explanation that I have rejected as spurious for reasons previously noted. Indeed, it is an expla- nation that in any case would have only the most remote and tenuous connection to a contract-“policing” purpose, especially where there is no evidence that the visiting agents ever even asked any of the employ- ees they “talked to” whether they were aware of any contract violations. Obviously, however, as the testimony of Organizing Director Jacques Loveall shows, the visiting agents’ fascination with the work schedules would have an intimate and substantial connection to Local 588’s dis- tinct interest in “organizing” the drug clerks to accept representation instead from Local 588. ees when its agents acted as they variously did in reaction to the visitations to the Drug Centers at Merced, Oroville, and Granite Bay on October 22 and 23, 1992. Accordingly, I will order dismissal of the counts set forth in paragraphs 10, 12, 13, 14, and 34(d) and (f) of the complaint, and dismissal, as well, of concluding paragraphs in the complaint insofar as they allege violations relating to those counts. C. Kenneth Collings’ October 23 Memorandum (Complaint Par. 15) Paragraph 15 of the complaint avers as follows: About October 23, 1992, Respondent Raley’s, by Ken Collings, had notices posted at Respondent Raley’s facili- ties that: (a) encouraged its employees to oppose IDCA’s desig- nation of Local 588 business representatives as representa- tives of IDCA; (b) informed its employees that Respondent Raley’s would not deal with IDCA’s newly designated representa- tives; (c) encouraged its employees to vote "no" on an IDCA ballot regarding whether to incorporate IDCA; (d) encouraged its employees to oppose any attempt by IDCA to merge or affiliate with Local 588. 1. Facts All of the above counts refer to a memorandum dated Octo- ber 23, 1992, signed by Raley’s chief labor relations spokesper- son at the time, Kenneth Collings, and addressed to “All Cali- fornia Drug Center Employees.” Copies were dispatched to all of the Drug Centers, where they were posted, as Collings had instructed in a covering memorandum to the Drug Center man- agers. This is what Collings said in the memo (all emphasis is in the original document): We have learned that a serious takeover attempt has been launched against your Independent Drug Clerks As- sociation. Raley’s has always respected your right to choose and the independence of the Association. How- ever, without notice to you, it is now apparent that your Executive Committee has decided to turn over the reins of the Association to UFCW Local 588. To our surprise, your recently elected President, Gil Eidam, by letter of October 19, told Raley’s that all of UFCW Local 588’s business agents had been designated as your representatives. Who do you think will be paying for that? The IDCA Bylaws, which are public information, state that your elected Stewards are responsible for con- tract matters and represent the employees on a store-by- store basis. So far as we can tell, you, the IDCA members, had nothing to do with Mr. Eidam’s decision to replace your shop stewards with Local 588’s business agents. You may wish to voice your opinion to your Association officers about what is really going on. As many of you have seen, UFCW Local 588’s busi- ness agents are canvassing the stores. Are they really looking for grievances, or are they campaigning for a merger? Or has the merger already taken place, and you didn’t get to vote? RALEY’S 435 Until Raley’s gets a satisfactory explanation of what is going on and who your representatives are, we are going to continue to deal with your duly elected Association stewards. So that there will be no misunderstanding, we will refuse to allow Local 588’s business agents to inter- rupt your work or hold you hostage during store hours. There is more. Many Drug Department employees have approached us on what to do about a ballot they re- ceived by mail purportedly asking for approval to incorpo- rate the Association. These employees have complained that they do not know why they are being asked to vote on this without any information. We cannot tell you how to vote. However, until you know exactly what is going on, you may wish to return the mysterious ballot to the Asso- ciation with a “NO” vote. Nobody seems to understand what games UFCW Local 588 is playing and if it is behind this ballot. You should be concerned that those who “know” what is going on will vote “yes” and everybody else will not return their ballots. This would probably make the “deal,” whatever it is, go through, since the ma- jority of those voting said yes. You are probably aware that Local 588 has added local after local. Local 588 has been attempting to get our non- union stores to go union for the past several months. Al- though Local 588 has respected the independence of the Drug Clerks Association ever since the NLRB-conducted election took place years ago, it now appears that Local 588 wants everything. And, unlike the earlier election, you don’t have a voice in what will happen. We encourage you not to let Local 588 destroy the positive relationship that Raley’s employees have had with the Company through the IDCA since 1959! If you want to be heard, we have listed the names and telephone num- bers of your officers. Like any union, they are obligated to serve you if you let them know what you want. Find out what is really happening. Gil Eidam, President 781–7840 Chris Clark, Vice President 421–3267 2. Analyses and conclusions Some preliminary observations and discussions will help ex- plain my judgments as to what is and is not at issue in connec- tion with the complaint’s attack on this memo: First, the telephone numbers set forth at the bottom of the memo were the Drug Center work numbers of Eidam and Clark, and this fact warrants some related comment: The com- plaint does not allege, neither in paragraph 15 nor elsewhere, that Raley’s violated the Act by effectively encouraging IDCA members to call Eidam or Clark at work with their questions or gripes about the matters that were the subjects of the Collings memo. Neither does the General Counsel advance any such argument on brief. Accordingly, I will not independently try to assess the possible merits of any such attack on the memo. Relatedly, however, Kenneth Collings testified, in substance, that the work numbers of Eidam and Clark were incorporated into the memo by “mistake,” that they weren’t on the copy that he authorized for transmission, and that as soon as he learned of their inclusion, he told his secretary to get out a “voicemail” to all the Drug Center managers instructing them to physically “black out” the telephone numbers on the copies posted in their stores. However, these were assertions that cried out for cor- roboration—corroboration, moreover, that it should have been relatively easy for Raley’s to produce if there ever were any. (Apart from Collings’ secretary, there must have been at least some store managers who could still recall whether or not they ever got such a “voicemail” from headquarters, and whether or not they ever “blacked-out” the phone numbers on the copies of the memo posted in their stores.) In fact, however, there is not a shred of independent evidence either that Collings’ secretary did what he claims to have told her to do, or that any such blacking-out ever took place at the store level. Nor is there any evidence that Raley’s took any other concrete steps to commu- nicate to its employees that they should not be telephoning Eidam or Clark at work with their questions or complaints about the matters referenced in Collings’ memo. Thus, I remain wholly unpersuaded by this testimony, and by Collings’ related explanations, which struck me as at once confusing, improvisa- tional, essentially fictional, and, not least, beside or beneath the point. Clearly, if the inclusion of the work numbers was seen by Collings as a “mistake” worth “correcting,” it was one that Collings had the responsibility (and the power) to correct effec- tively—most obviously, by issuing and publicizing in compara- ble form an amended memo containing an admonition to em- ployees not to call either Eidam and Clark at their previously- listed work numbers.92 Accordingly, I do not accept in any way the proffered explanation that the incorporation of the work numbers into the memo was a “mistake.” Rather, I find in all the circumstances that the numbers were incorporated with the same degree of intentionality that obviously lay behind every other statement or message in the memo. And although the inclusion of the work numbers in the memo is not alleged as a violation, nor will I treat it as such, I will find the fact of these inclusions to be of utmost significance when I later analyze the merits of the complaint’s attack on a verbal warning issued to Eidam on April 6, 1993, for, inter alia, “getting too many IDCA calls at work.” Second, as previously noted, the charge underlying the counts in paragraph 15 alleged that Raley’s had violated Sec- tion 8(a)(2) by, inter alia, “unlawfully interfer[ing] with the internal processes of the IDCA.” And the original complaint had partly embraced that 8(a)(2) charge by alleging that the Collings memo constituted unlawful “assistance and support to a labor organization” [sic] in violation of Section 8(a)(2). Sig- nificantly, however, as also noted previously, these 8(a)(2) allegations were subsequently dropped from supplemental or 92 Moreover, the particular means supposedly chosen by Collings to “correct” the “mistake” independently strikes me as quite strange: What message would it send to the drug clerks if they were to see the same memo still containing the language, “we have listed the names and telephone numbers of your officers,” and then look down and notice that the telephone numbers had been blacked-out? Would this have any realistic tendency to deter employees from calling Eidam or Clark at work, as they previously had been invited to do? Or would it simply create confusion, and perhaps even cause some employees to wonder if they were now being told by the company not to call their union offi- cers at all, no matter where they might be found? DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 436 superseding versions of the complaint, which now allege only that the Collings’ memo violated Section 8(a)(1). Despite this, counsel for the General Counsel now appears to be implicitly invoking 8(a)(2)’s proscriptions by arguing in conclusionary terms on brief that Raley’s, through the Collings memo, “was attempting to impermissibly interfere in the internal affairs of IDCA.”93 Such claims, resonating uniquely under Section 8(a)(2), plainly exceed those made in the complaint, and, espe- cially considered against the procedural background just noted, such claims effectively amount to a belated and inappropriate attempt, sub silentio, to revive a feature of the charge that the Regional Director, acting for the General Counsel, had obvi- ously dropped as a bad idea by the time this case was tried. Accordingly, in my view, the only question framed by the complaint and properly submitted for litigation and adjudica- tion is whether or not the alleged statements in the Collings’ memo referred to in paragraph 15 may be said to have unlaw- fully “interfere[d] with, restrain[ed], or coerce[d] employees in the exercise of the rights guaranteed in Section 7.” Third, let us stipulate to the obvious: The Collings’ memo was, at its heart, a propagandistic exercise. It was clearly calcu- lated to “disparage” both Local 588 and Eidam by depicting them as co-conspirators in a plot to hand IDCA over to the predatory Local 588 without the drug clerks’ knowledge. And it was clearly calculated also to “encourage” drug clerks to resist steps taken by Eidam that were seen by Raley’s as portending a Local 588 takeover of IDCA. Fourth, let us recall, nevertheless, that such statements of “disparagement” or “encouragement,” standing alone, do not violate the Act, nor can they be taken as evidence of a viola- tion. The commands of Section 8(c) of the Act, often referred to as the “employer-free-speech” Section, are unmistakable in this regard. That section declares: The expressing of any views, argument, or opinion, or the dis- semination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act if such expression contains no threat of reprisal or force or promise of benefit. See also NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The employer is free to communicate to his employees his views about unionism or any of his particular views about a particular union, so long as the communications do not con- tain a “threat of reprisal or force or promise of benefit.” Moreover, the Board clearly takes an expansive view of the purpose and reach of Section 8(c), relying, in turn, on Supreme Court decisions that have read into that section a broad Federal labor policy favoring free and untrammeled speech not just by employers, but by unions and employees, as well. See, e.g., Riesbeck Food Markets, Inc., 315 NLRB 940, 941–942 (1994), 93 GC Br. at 62. See also id. at 65: “Raley’s had no right to get in- volved in who IDCA chose as its designated representatives for con- tract enforcement.” where the Board stated pertinently as follows (footnotes omit- ted): The Supreme Court has declared that freedom of speech has long been a basic tenet of Federal labor policy. Letter Carri- ers v. Austin, 418 U.S. 264, 270 (1974). “This freewheeling use of the written and spoken word . . . has been expressly fostered by Congress and approved by the NLRB.” Id. at 272. Indeed, the Court has explained that the enactment of Section 8(c) of the Act “manifests a congressional intent to encourage free debate on issues dividing labor and management.” Linn v. Plant Guard Workers Local 114, 383 U.S. 53 (1966). The Board has accordingly recognized that Federal labor policy favors “uninhibited, robust, and wide–open debate in labor disputes.” Franzia Bros. Winery, 290 NLRB 927, 932 (1988), quoting Letter Carriers v. Austin, 418 U.S. at 270. Strikingly, the General Counsel’s arguments on brief do not even acknowledge the existence of Section 8(c). However, it should be apparent that the General Counsel’s attacks on cer- tain features of the memo, as set forth in paragraph 15, facially implicate 8(c)’s mandate. For reasons set forth below, I judge ultimately that these attacks not only implicate Section 8(c), but cannot be harmonized with that section, and, therefore, that the several counts in paragraph 15 must be dismissed. The language of Section 8(c), and the Board’s expansive in- terpretation of that language as reflected in Riesbeck, supra, together provide a sufficient basis for dismissing all counts, supra, that begin with the verbs encouraged or disparaged. The features of the memo that match up with either the “encour- agement” or “disparagement” counts were plainly expressions of Raley’s “views” on “issues” that had arisen out of an un- precedented and controversial set of recent labor relations de- velopments—Eidam’s initiative to turn IDCA, the “Associa- tion,” into a “corporation”; his enlistment of high-level officials of Local 588 as leading members of IDCA’s bargaining team; his deputizing of virtually everyone on Local 588’s profes- sional staff as IDCA’s “fully-authorized Business Representa- tives”; and his evident support for the then-ongoing flurry of visitations to the Drug Centers by Local 588’s agents, purport- ing to act in IDCA’s name and interest. Moreover, all of these developments had arisen in the context of the bitter, ongoing dispute between Raley’s and Local 588 in the Grocery cases. These were all obviously developments of immediate interest and concern not only to Raley’s but to IDCA, Local 588, and— not least—the drug clerk unit employees. Section 8(c) embod- ies a Federal labor policy that favors “uninhibited, robust and wide-open debate” on such matters. And clearly, the company’s expression of views on these matters were not tainted by any “threats of reprisal or force or promise of benefit” so as to re- move these expressions from 8(c)’s insulation. Accordingly, the mere facts that Raley’s “disparaged” Local 588 and Eidam, and “encouraged” drug clerks to take a close look at what was hap- pening, and to let their IDCA leadership know their feelings on the subject, and even to vote “NO” on the proposed incorpora- RALEY’S 437 tion of IDCA, cannot seriously be taken, either separately or in combination, as violations of Section 8(a)(1).94 Although the General Counsel’s arguments fail to acknowl- edge even the existence of Section 8(c), counsel for the General Counsel at least implicitly nods in 8(c)’s direction when she notes (Br. 61; emphasis added) that “statements that may not be unlawful by themselves become coercive if uttered in the con- text of other unfair labor practices that impart a ‘coercive over- tone’ to the statement.” But what “other unfair labor practices” does the General Counsel have in mind in this regard? The answer is not entirely clear, but it appears that the main thrust of her argument is encapsulated in the following statement (emphasis added): The memorandum, when combined with the arrests [at Merced and Oroville], informed the drug clerks that it would be futile for them to deal with IDCA’s newly designated rep- resentatives. This argument thus incorporates, in part, the already-dismissed allegations that Raley’s violated Section 8(a)(5) when its man- agers caused the arrests of Glazer at Merced and Wood at Oro- ville. To that extent, the argument is a nonstarter, and could be ignored on that basis. However, the argument also incorporates (and recharacterizes as involving a “futility” message) the alle- gation in subcount (b) of paragraph 15, which states that in the memo, Raley’s “informed its employees that Respondent Raley’s would not deal with IDCA’s newly designated repre- sentatives.” With respect to the futility claim, the General Counsel is obviously referring to that portion of the memo which actually states: “Until Raley’s gets a satisfactory expla- nation of what is going on and who your representatives are, we are going to continue to deal with your duly elected Association stewards.” I am not at all persuaded that the last-quoted statement would be understood by employees, as the General Counsel seems to argue, as an “anticipatory” threat that it would be “futile” for the employees themselves to “deal with IDCA’s newly-designated representatives.” In fact, I remain wholly confused about what counsel for the General Counsel even means when she uses the expression deal with in this context. Is she saying that employees would infer from the language just quoted that they would not themselves be permitted to make contacts with agents of Local 588? If so, I would dismiss the claim as simply another exercise in self-delusion or myopia when it comes to interpreting the meaning of a sentence in the English language. Perhaps, alternatively (and despite the fact that “drug clerks” are said to be the people who would see it as 94 Contrary to the General Counsel’s apparent suppositions on brief (at 61), it does not illuminate, much less alter the 8(c) analysis to re- characterize the memo as a “disparage[ment of] IDCA for being in- volved with Local 588.” See generally Camvac International, Inc., 288 NLRB 816, 820 (1988), and authorities cited. See also, e.g., American Geri-Care, Inc., 278 NLRB 676, 679 (1986). The same goes for the General Counsel’s conclusionary assertions that “Raley’s was attempt- ing to impermissibly interfere in the internal affairs of IDCA[,]” and that “Raley’s had no right to get involved in who IDCA chose as its designated representatives for contract enforcement.” See, especially, American Geri-Care, supra. “futile” to try themselves to “deal with” the Local 588 agents), what the General Counsel really means to claim is that Raley’s was itself expressing an “anticipatory” refusal to “deal with” IDCA through its “newly designated representatives.” But even if so, the notion that employees were “informed” by the memo that it would be “futile” for them to expect Raley’s’ to “deal with” IDCA through Local 588 is clearly erroneous insofar as it implies that Raley’s was expressing a blanket unwillingness to “deal” at all with Local 588 as a “representative” of IDCA. We know that Raley’s was concurrently engaged in contract nego- tiations with an IDCA bargaining team that included Local 588’s executives as principal spokespersons, and that Raley’s continued to do so for another 10–11 months. Perhaps, although the General Counsel doesn’t say so, the prosecution theory is that Collings was declaring a more limited “refusal” to “deal” with Local 588’s representatives as the au- thentic representatives of IDCA for purposes of grievance- processing or contract administration. If so, the characterization would be closer to the mark, but it would, in turn, raise quite different questions from those to which the General Counsel’s arguments appear to be directed, as I discuss next. Let us again recall the context in which Collings made the statement now in question: Local 588’s agents were blitzing the stores with organizing activity which I have found enjoyed no contractual privilege under Section 10, and, therefore, no statu- tory privilege to conduct them. I have further found that the “designation” by Eidam of 30 members of Local 588’s staff as IDCA’s fully authorized “Business Representatives” had essen- tially nothing to do with contract-policing concerns and every- thing to do with a wish to supplant IDCA, the recognized repre- sentative, with a different union, Local 588. Raley’s had good reason to suspect, not only from the designations and the visita- tion blitz, but from Eidam’s initiative to incorporate IDCA, that what was “going on” was, in reality, an attempt to substitute Local 588 as the drug clerks’ bargaining agent without benefit of any direct vote by IDCA’s members on such a substitution. And even in that context, Collings did not declare a blanket refusal to “deal with” Local 588’s agents. He only stated, in substance, that Raley’s was awaiting a “satisfactory explana- tion” of “what is going on,” and, until one were tendered, that Raley’s would maintain the status quo by continuing to “deal” with IDCA’s elected shop stewards when it came to grievance- handling or other matters of contract-administration at the store level. Let us recall also that, at the time Raley’s published the Collings’ memo, no agent of Local 588 had even attempted to present a contractual grievance or had otherwise sought to “deal” with Raley’s on matters pertaining to the interpretation or application of the IDCA contract. (Nor did such an event ever arise thereafter, so far as this record shows.) The cases variously cited by the General Counsel (Br. 60– 61) with respect to these contentions are either inapposite or irrelevant, or both. Here, I will discuss only the General Coun- sel’s attempt to draw an analogy to the Standard Oil line of cases.95 These cases hold generally that the “mere presence” of 95 See Standard Oil Co., 137 NLRB 690 (1962), enfd. 322 F.2d 40 (6th Cir. 1963). The General Counsel cites two cases in the Standard Oil line: American Radiator & Standard Sanitary Corp., 155 NLRB DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 438 “outside” union representatives at the bargaining table will not justify an employer’s refusal to negotiate with the union repre- senting the employees in the unit for which the employer is bound to negotiate. However, that doctrine covers situations that are not readily analogous to the situation presented here, principally because here, unlike in the Standard Oil cases, no issue is presented as to Raley’s willingness to meet across the bargaining table with an IDCA team which included Local 588 executives. Rather, the issue here is whether Raley’s owed a duty to IDCA to treat Local 588’s agents as IDCA’s surrogate “representatives,” with authority not only to visit Drug Centers, but, more important, with authority to exercise powers pos- sessed by IDCA to “administer” the IDCA contract on a day-to- day basis. One of the contract-administration powers normally possessed by a union’s “fully-authorized Business Representa- tives” is the power unilaterally to “bind” the union when it comes to resolving grievances or disputes (local or otherwise) over the interpretation and application of the union’s labor agreement. And seen that way, Collings’ vow that, lacking a “satisfactory explanation of what is going on,” Raley’s would “to continue to deal with [the] duly elected Association stew- ards” was seemingly a quite lawful statement of a lawful inten- tion not to enter into any discussions, much less binding agree- ments, with any Local 588 agent alone, with respect to griev- ances or other disputes relating to the interpretation or applica- tion of the IDCA contract. Indeed, Collings’ statement in dis- pute is more readily understood as a vow that for purposes of that kind of “dealing,” Raley’s would continue to recognize only the elected shop stewards as having authority to discuss and resolve such disputes. Moreover, even in cases presenting traditional Standard Oil issues, the Board has consistently recognized that where there is “substantial evidence of bad faith or ulterior motive” under- lying the outside union’s presence at the bargaining table, the employer may lawfully refuse to negotiate with a union com- mittee that includes such outsiders.96 And, lest there be any doubt on this score, my previous findings may be taken as find- ings that there is not only “substantial,” but overwhelming evi- dence of both bad faith and ulterior motive in Eidam’s designa- tion of Local 588’s staff as IDCA’s representatives for store- visitation and contract-administration purposes. Again, the designation had essentially nothing to do with discharging IDCA’s representational duties, and everything to do with fur- thering Local 588’s wish to supplant IDCA as the drug clerks’ representative. Thus, I conclude as a matter of law that the complaint is without merit and must be dismissed insofar as it alleges that the Collings’ memo implicated Raley’s in violations of Section 8(a)(1). 736 (1965), and Harley Davidson Motor Co., 214 NLRB 433 (1974). See also, e.g., General Electric Co., 173 NLRB 253 (1968); and Min- nesota Mining & Mfg. Co., 173 NLRB 275 (1968). 96 General Electric, supra, 173 NLRB at 255, adopting the Sixth Circuit’s enforcing opinion in Standard Oil Co. v. NLRB, supra, 322 F.2d at 44. D. Alleged Favoritism in use of Fax and Internal Mail Facilities (Complaint Par. 9) 1. Introduction Paragraph 9 of the complaint alleges: About October 17 and/or 18, 1992, Respondent Raley’s per- mitted its employees who were opposed to the IDCA leader- ship to use Respondent Raley’s internal mail system and fac- simile machines to exchange information critical of IDCA’s acceptance of assistance from Local 588 in negotiations for a new contract and in servicing the IDCA Drug Agreement, while concurrently denying IDCA the right to use Respondent Raley’s internal mail system or facsimile machines. As noted previously, there is no reason on this record to sup- pose that any misconduct referred to in paragraph 9 occurred on “about October 17 and/or 18.” Rather, the documents now cited by the General Counsel as proving the alleged activity suppos- edly “permitted” by Raley’s (GC Exh. 152, infra) fails to indi- cate any such underlying activity prior to October 21. However, as explained below, the timing of things is the least of the prob- lems with the several discrete assertions of fact that have been packed into paragraph 9’s single sentence. The more fundamen- tal problem is that the General Counsel has failed to establish a prima facie evidentiary case in support of any of those asser- tions. Rather, all such claims are based on assumptions and speculations that are themselves inescapably grounded in hear- say; indeed, they usually rest on multiple layers of hearsay. 2. Facts Some matters of undisputed general background will further set the stage: Raley’s had an official “policy” that store tele- phones were for “Raley’s business”-only, and the company even published rules purporting to bar employees from using store phones for “personal” calls, except in cases of “emer- gency.” Moreover, after fax machines were introduced into the pharmacies sometime in the late 1980s (originally, to allow physicians to fax-in their prescriptions), Raley’s maintained a comparable, but even more strictly-couched policy and rule, purporting to bar any “personal” use of the fax machines. In fact, however, these policies and rules were never strictly en- forced, and the record abounds with examples where employees used the store phones for “personal” calls of a “nonemergency” nature, and likewise used the pharmacy fax machines to trans- mit “personal” messages between and among the Drug Cen- ters—usually in the form of jokes, cartoons, or recipes. Indeed, after it became patently obvious from the testimony of numer- ous employee and management witnesses called during the General Counsel’s case-in-chief that employees were generally permitted (despite the General Counsel’s prior claims) to use the store phones for calls of a “personal” nature, the parties eventually stipulated that I could find as follows: In practice; [1] employees in Raley’s drug centers commonly used in-store telephones to conduct personal business, such as making or receiving telephone calls to or from family mem- bers and friends relating to family or social matters; [2] drug center managers did not seek to prevent such calls, per se, but only in perceived cases of abuse, as defined by each manager, RALEY’S 439 involving actual or perceived interference with the employ- ees’ ability to serve customers or involving actual or per- ceived tying-up of the phones so as to impair customers’ abil- ity to get through on the phone lines. At all times material to the issues raised by the complaint, Eidam was a pharmacist employed at the Roseville Drug Cen- ter, where Gary Durbin was the Drug Center Manager. In Au- gust 1992, soon after Eidam was elected as IDCA’s president, Durbin told Eidam not to use the pharmacy telephone, fax ma- chine, or the Company’s “internal mail” system for IDCA busi- ness.97 Eidam expressed some reservation to Durbin about the bar on using the fax machine for IDCA business. (His testi- mony indicates that he effectively reserved the right to use the fax to transmit bargaining-related communications to Kenneth Collings at headquarters, and that Durbin did not dispute such use.) But Eidam didn’t really quarrel with Durbin about these general instructions, which he admittedly thought were “rea- sonable,” indeed, matters of “common sense.” However, he admittedly did not honor these instructions scrupulously, espe- cially when it came to the use of his pharmacy telephone.98 And in September 1992, Durbin had issued two, separate verbal warnings to him for excessive use of the phone for union busi- 97 As we shall see, there is no evidence that anti-Eidam employees (whether drug clerks or pharmacists) used the Company’s “internal mail system” to broadcast their views or messages. Nevertheless, the system and its details have tangential relevance to some of the facts discussed later. Primarily from Kenneth Collings’ systematic descrip- tions of the system as it worked in 1992, I find as follows: Outbound letters or memos from headquarters to a store, or a department within a store, were placed in individually-addressed “interoffice mail” enve- lopes and then sent to the headquarters mailroom, where mailroom clerks sorted the envelopes and put them in pigeonholes reserved for each store. Each evening, the papers in the pigeonholes were emptied into mailbags reserved for the addressee store. The next morning, the bags were loaded onto outbound produce trucks making daily deliveries to the various supermarkets. Once a bag was received at the addressee store, someone on the supermarket side—anyone from a manager to a bookkeeper—would sort the envelopes and distribute them to their particular addressees on either the Drug or the Grocery side. Outbound communications from the store to headquarters or to another store were handled in a predictably inverted fashion: Each store had its own stock of mailbags and interoffice mail envelopes. The store-based sender would put the writing into an addressed envelope, drop the envelope into the mailbag, and the mailbag would be collected by the produce driver after completing the morning produce delivery, and carried back to the headquarters mailroom for sorting and repigeonholing, and transmission to the particular addressee, either via another outbound produce truck (in the case of store-to-store mail) or via hand delivery to a headquarters office (in the case of mail destined for someone at head- quarters). 98 Eidam admitted that, even after receiving these instructions, he typically used the pharmacy phone to place outgoing calls for IDCA business at least once a week, and also took incoming calls relating to IDCA business at least once a week. He characterized such calls as brief (generally not exceeding 10 minutes) and denied ever spending as much as an hour on the phone. But he eventually admitted that there were times when customers were kept waiting while he concluded such calls. Moreover, the credible testimony of Roseville pharmacy clerk Carrie Pagan provides substantial evidence that Eidam grossly underes- timated the frequency and duration of his use of the pharmacy phone for union business. ness (not merely for such use, per se), and had recorded these warnings in handwritten memoranda (R. Exhs. 25 and 26) that were placed in his personnel file. These warnings were not alleged to have violated the Act in any respect; indeed, they are nowhere referred-to in the complaint. Turning now to Raley’s alleged “permitt[ing]” of anti-Eidam dissidents to use company fax and internal mail media, I find as follows: On an uncertain date after October 28, but before No- vember 5, Chris Clark, who was employed at the Fair Oaks Drug Center, came to Eidam’s pharmacy worksite at the Rose- ville Drug Center. He was accompanied by Erik Rodrick, a scanning clerk at the Roseville Drug Center.99 (As previously noted, Clark was IDCA’s vice president, and Rodrick was the Roseville shop steward for the drug clerks at that store. Both had participated with Eidam on IDCA’s bargaining team, and both favored Eidam’s alliance with Local 588.) When Clark and Rodrick arrived, Eidam was working inside the pharmacy, but he emerged and met with them on the sales floor in front of the pharmacy counter. Clark then handed a sheaf of papers to Eidam, and, according to Eidam, told him in some summary manner that the papers had been transmitted via store fax ma- chines and through the Company’s internal mail system. (This testimony, incorporating plain elements of hearsay, was admit- ted only after counsel for the General Counsel had disclaimed any hearsay purpose, and had represented that Clark’s state- ments to Eidam about the manner of transmission of these pa- pers were being offered simply to explain Eidam’s subsequent behavior.) During Eidam’s examination by counsel for the General Counsel, the latter showed Eidam an exhibit containing 10 sheets of paper (GC Exh. 152). The exhibit had been col- lected and assembled under uncertain circumstances.100 Eidam stated, initially, that he recognized the papers in the exhibit as “the faxes that were sent from stores to other members regard- ing the incorporation.” (This identification, apart from the hear- say features that obviously informed it, was clearly unreliable on other grounds as well. In fact, as Eidam soon acknowledged, only four of the papers in the exhibit bore purported fax head- ers, and the balance of them contained no facial indications as to mode of transmission. And in any event, consistent with the General Counsel’ previous disclaimer and statements of pur- pose, the papers comprising GC Exh. 152 were tendered and received into evidence only as copies of papers that Clark had showed to Eidam.) These papers included not only copies of handwritten messages, but typed letters and memos, some of 99 Eidam’s spontaneous recollections as to matters of timing, se- quence, and substance were generally confused, and often proved to be clearly erroneous. His stated belief that the visit from Clark and Rod- rick occurred sometime after October 28 (the most recent date appear- ing on dated documents given to him by Clark), and before November 5 (when he mailed a letter to Charles Collings inspired by the docu- ments and report Clark had given to him), did not emerge until he was cross-examined by UWRU’s attorney. 100 Eidam did not claim he was himself the compiler of the papers comprising GC Exh. 152, and, for all that the record shows on such matters, the documents could have been collected and compiled by the General Counsel or someone else, perhaps from disparate sources, then merely tendered for Eidam’s rather sketchy “identification” of them as the papers shown to him during his meeting with Clark and Rodrick. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440 them purportedly authored by anti-Eidam dissident leader Gregg Germ, purportedly acting on behalf of a group called “A Committee of Concerned IDCA members.” Most of these pa- pers reflected opposition to Eidam’s proposal to incorporate IDCA. One of them (GC Exh. 152, p. 4) appeared on its face to be a specimen “form” letter through which opponents of Local 588’s involvement in IDCA’s negotiations could communicate their opposition to Kenneth Collings by signing it and mailing it to the Company’s Sacramento Post Office box number, which was preprinted on the letter.101 Eidam admittedly had no firsthand knowledge as to who had authored any of the papers shown to him during his meeting with Clark and Rodrick, much less who had transmitted them, when or how they had been transmitted, or how they had come into Clark’s hands. The record contains no independent evi- dence that answers any of these questions.102 Moreover, Clark, the party who had apparently brought the papers into the meet- ing with Eidam, was not called as a witness; nor was Germ, the purported author of some of the documents. Eidam took Clark’s word for it that these papers had been circulated via fax and/or internal mail, but he admittedly had “no idea” from either Clark or Rodrick, or from any other source, whether any managerial agent of Raley’s had been involved in the circulation of the papers, or even whether a managerial agent of Raley’s was aware, if true, that any such papers had been circulated through the Company’s fax machines or its internal mail system. On October 28, 1992, the charge in Case 20–CA–24973 was filed in IDCA’s name, the charge that led to all of the complaint allegations discussed to this point, including the paragraph 9 count now under discussion. (Moreover, insofar as the charge may be construed to have raised the claims set forth in para- graph 9, it appears to have been based on nothing more than the hearsay information Clark and/or Rodrick had imparted to Ei- dam, and the same is true of the claims made in paragraph 9 itself.) At some later point, closer to November 5, Eidam placed successive calls from his pharmacy telephone to the headquar- ters offices of two different district supervisors for drug opera- tions, Jody Stewart (who was responsible for the district cover- ing Eidam’s Roseville store) and Flint Pendergraft (who was responsible for a different district, in the Central Valley). Ei- dam’s recollections of these conversations were spotty, impres- sionistic, confusing, and inconsistent in many particulars. Moreover, in several respects, Eidam’s ever-expanding recol- lections of certain features of these conversations struck me as not springing from any genuine memory, but merely as the artificially-shaped products of repeated suggestive questioning by counsel for the General Counsel. However, Stewart was not 101 Kenneth Collings separately testified that at least 10-signed cop- ies of this form letter eventually reached his desk, but that he had no idea whether they came into headquarters through the United States mail, the interoffice mail, or a fax machine. 102 Rodrick vaguely testified that he recognized one of the papers comprising GC Exh. 152 (i.e., p. 4 of that exhibit), and that he believed that another (unnamed) drug clerk supportive of Eidam’s IDCA leader- ship had previously shown him a copy of this document, on “flimsy,” fax-type paper. However, like Eidam, Rodrick admittedly had no inde- pendent firsthand knowledge regarding authorship, mode of transmis- sion, or the identity of any transmitting party. called as a witness, and Pendergraft, although called to testify as Raley’s witness for other purposes, was not invited to offer his own version of the conversation with Eidam that Eidam himself so vaguely described. In the circumstances, I will as- sume the truth of certain core elements in Eidam’s testimonial descriptions of both conversations; however, I will give scant weight to those features of his accounts that struck me as mere interpretive embellishments. Thus, I find as follows: Eidam’s first call was to Stewart. In substance, Eidam complained, without citing any basis for his complaint, that employee-opponents of his administration were being allowed to use the Company’s fax and internal mail facili- ties to transmit opposition literature, whereas Eidam was himself barred from using those media for IDCA business. According to Eidam’s first, and most spontaneous recol- lection, Stewart affirmed that “it was company policy that union business could not be conducted through the com- pany facilities such as fax, and telephone, and interoffice mail. But, that personal phone calls were acceptable, as long as they weren’t abused.”103 Eidam asked Stewart what constituted “abuse,” and, as he put it rather unillumi- natingly in his testimony, “she wasn’t able to answer me.” Dissatisfied, Eidam then called Pendergraft. He initially characterized this conversation as “pretty much” involving a “recapitulation” of his prior conversation with Stewart. His later attempts to elaborate on the contents of the con- versation were confusing, and, in my assessment, essen- tially fictional.104 On November 5, with the charge in Case 20–CA–24973 hav- ing been on file for more than 2 weeks, Eidam wrote a letter of complaint to Raley’s president, Charles Collings (GC Exh. 153). He mailed copies of this letter to all the drug clerks state- wide. (Considering the timing, and the audience, I regard this letter as an attempt both to perfect or beef-up the already exist- ing charge, and to shoreup support for his administration 103 Prodded by the General Counsel, Eidam later amended this ac- count by implying that Stewart stated not only that “personal” phone calls were “acceptable” if not “abused,” but that the same standard applied to the “personal” use of fax machines and the internal mail system. I regard these emendations as merely self-serving embellish- ments, themselves cued by the leading nature of the General Counsel’s attempts to rehabilitate the essentially innocuous version given more spontaneously by Eidam in his first account of his conversation with Stewart. Beyond that, I note that Eidam never attributed to Stewart any direct statement that the transmission of IDCA-dissident materials via store fax or internal mail was seen by Raley’s as merely an “accept- able” example of a “personal” communication that somehow fell out- side the general ban on using fax or internal mail media (or even the telephones) for “IDCA business.” Indeed, on cross-examination, he seemed to reaffirm that Stewart’s reference to “acceptable if not abused” applied only to the use of store telephones for “personal” calls. 104 Based on his demeanor and the generalized nature of his re- sponses to followup questioning by the General Counsel, I formed the strong impression that Eidam had no genuine independent memory of his conversation with Pendergraft. Thus, I reject his followup responses as again the product both of leading questioning and a tendency on his part to substitute his subjective and self-serving impressions for genu- ine memory. RALEY’S 441 among the drug clerks.) In the letter, he again made a number of accusations that were based solely (and quite loosely, at that) on what Clark and/or Rodrick had told him, and none of these accusations was independently supported by any competent evidence of record. This is what he said to Collings: I am writing to you to object to the company’s blatant attempts in trying to dominate our Union. Enclosed with this letter is a piece of literature, signed by Greg Germ of Store #492, that was authorized, ap- proved, and mailed by the management of Raley’s.[105] The fact that Raley’s would condone the distribution of this letter which contains innuendos, distortions, and out-and-out lies is not only shocking, but a clear violation of Federal labor laws and just plain common decency. This is to advise you that Independent Drug Clerks As- sociation will take every and all steps necessary to combat Raley’s management’s intrusion into the IDCA’s internal affairs. I would suggest that the company channel their efforts into negotiating a fair and equitable agreement rather than wasting time and energy trying to take over the affairs of the Independent Drug Clerks Association. Sincerely, /s/ Gil Eidam, President On November 12, Charles Collings replied to Eidam’s letter in writing, effectively denying Eidam’s accusations, as follows: This is in response to your letter of November 5, 1992, in which you bring to our attention certain internal union matters. While Raley’s has always enjoyed a close work- ing relationship with the IDCA,. we reject the notion that Raley’s has ever sought to dominate the Union or to inject itself into internal union affairs. The suggestion that any company employee and member of the IDCA who dis- agrees with you is receiving assistance from the Company is not supported by fact. Moreover, the Company did not distribute Mr. Germ’s letter. As you know, it is virtually impossible to screen all documents that are placed with the Company’s mail system. We welcome your suggestion that all parties continue their efforts to negotiate a new collective bargaining agreement. I am confident that such an agreement will be reached without the need for outside diversions. We have a history of over 30 years of collective bargaining that has proved beneficial to our employees. 105 The purported “Greg Germ” letter-attachment was identical to p. 7 of GC Exh. 152; that is, it was one of the 10 documents that Eidam identified as copies of papers he had been shown by Clark. Moreover, Eidam’s specific claim to Collings that the attached letter had been “authorized, approved, and mailed by the management of Raley’s” was, despite its confident tone, simply the expression of a suspicion, itself grounded on nothing more than the summary report he had received from Clark that all of the papers comprising GC Exh. 152 had been transmitted either by store fax or through the Company’s internal mail system. 3. Analyses and conclusions As previously suggested, the General Counsel’s attempts at proof in support of the several discrete averrals of fact made in paragraph 9’s single sentence suffer from a series of fundamen- tal problems that I particularize below, in descending order of significance: (1) There is no competent evidence that Raley’s management was aware that “employees. . . opposed to the IDCA leader- ship. . . use[d]. . . Raley’s internal mail system and facsimile machines to exchange information.” Accordingly, the allega- tion that Raley’s “permitted” such dissident employees to “use” its internal mail and fax machines is properly dismissed on this ground alone,106 without regard to any of the further problems noted below, and without regard to whether or not Raley’s “concurrently denied” access to these media to “IDCA.”107 (2) Not only does the record lack proof of employer aware- ness, but it contains no competent evidence even that “employ- ees. . . opposed to the IDCA leadership” did, in fact, “use Raley’s internal mail system and facsimile machines to ex- change information.” Thus, even assuming, contrary to findings above and below, that it could be found on this record that a company fax machine or its internal mail was used by someone to transmit one or more of the papers that Clark showed to Ei- dam, it would still be entirely speculative to suppose that the transmitting parties were anti-Eidam dissidents. On this record, it is just as possible that allies of Eidam used these media to transmit copies of dissident papers independently in circulation by other means to alert Clark and/or Eidam to recent activities of the dissident faction. And in this regard I emphasize again that Clark was not called to testify as to how he may have come into possession of the papers he showed to Eidam, and neither does Rodrick’s testimony answer this question. (3) There is no competent evidence that anyone did, in fact, use Raley’s internal mail or its fax machines to transmit the papers that Clark showed to Eidam. The point is obvious with respect to prosecution claims that these papers, or some of them, were transmitted by “internal mail.” (There is no proof. Indeed, the General Counsel’s brief is notably silent when it comes to defending claims that anti-Eidam papers were sent by internal mail, no matter by whom.) However, four of these papers contain purported fax “headers,” i.e., printed text pur- porting to set forth transmission dates and originating fax tele- phone numbers (which numbers do, in fact, match up with the numbers for fax machines used in three Drug Centers). And on brief, counsel for the General Counsel emphasizes these par- ticular papers, and “requests” that I draw the “appropriate in- ferences” from the “fax data” appearing on the first four pages of General Counsel’s Exhibit 152. I take this vaguely-stated request to mean that I should treat these “data” as proof that these four documents were, in fact, transmitted on the date and time indicated, and from the fax machines that use the indicated numbers. I reject this request as both overreaching and eviden- 106 See, e.g., Farm Fresh, supra, 326 NLRB 997, 1000 fn. 18. 107 In asserting that Raley’s “concurrently denied” access to these media to IDCA, the General Counsel relies exclusively on the standing instructions that Eidam had received from Drug Center Manager Durbin several months earlier. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442 tiarily inappropriate: The request overreaches because it amounts to an attempt to exceed the stated basis for the tender and receipt of such documents in the first instance, i.e., merely as papers shown to Eidam by Clark to explain Eidam’s subse- quent actions. Beyond that, the request is evidentiarily inappro- priate because these purported “fax data” are nothing more than out-of-court “assertions” about underlying facts (mode, timing, and source of transmission), and therefore must be viewed as classic examples of written hearsay. Moreover, the papers con- taining the “fax data” were not independently authenticated by anyone with firsthand knowledge as documents transmitted through one or more Raley’s fax machines. Nor are they “self- authenticating” as to such matters. Nor is there circumstantial evidence that might add up to authentication—especially con- sidering the uncertain origins of the papers and the absence of any evidence that these particular papers were ever seen by or passed through the hands of a Raley’s official or a local man- ager. Thus, the “fax data” cannot be relied upon to prove mode of transmission, timing of transmission, or particular source of transmission, all of which points were repeatedly made clear to counsel for the General Counsel at the time she tendered these records into evidence, ostensibly for the sole purpose of ex- plaining Eidam’s subsequent behavior. Moreover, it bears reit- erating that even if the unauthenticated fax headers could be taken as proving mode, timing, or particular source of transmis- sion, it would still be unreasonable on this record to draw the “inference” that the General Counsel ultimately advocates— that it was members of the dissident group who did the trans- mitting, rather than allies of Eidam, seeking to give him a heads-up alert as to the activities of the dissidents. (4) Finally, with essentially similar hearsay considerations in mind, I judge that there is no competent evidence that the pur- ported authors of the papers in question (in those few papers where purported authorship even appears) were, in fact, the authors. Perhaps in recognition of these evidentiary obstacles, the General Counsel has devoted a significant portion of her at- tenuated arguments on brief to the exposition of a fallback the- ory of violation according to which such evidentiary problems simply don’t matter. Thus, in substance, the General Counsel argues that even if Raley’s management was unaware of any use of company fax or internal mail media by IDCA dissidents at the time they were supposedly occurring, and even if these media were not, in fact, being used by members of the dissident faction, Raley’s nevertheless “condoned” or “ratified” such (imagined) activity after the fact. The General Counsel’s fall- back theory incorporates two claims: First, that Eidam’s tele- phone calls to Stewart and Pendergraft, and his letter to Collings, combined to create an “awareness” on “Raley’s” part that dissidents were using the Company’s fax and internal mail media; second, that the company officials’ replies to Eidam’s complaints necessarily implied that they saw nothing wrong with such activity, without regard to whether or not it had actu- ally occurred. For reasons discussed below, I regard these claims, and the General Counsel’s fallback theory of post facto “condonation,” as bordering on the exotic. Focusing first on Eidam’s telephone calls to Stewart and Pendergraft, the General Counsel interprets their responses, as reported by Eidam, as “indicat[ing] that use of the fax and in- ternal mail was acceptable so long as it was not abused.” I re- ject this interpretation. As previously noted, I cannot find any- where in Eidam’s elliptical and confusing accounts any reliable evidence that either Stewart or Pendergraft ever affirmatively “indicated” to Eidam that employee use of the Company’s fax or internal mail facilities for purposes of communicating dissi- dent views on IDCA-related subjects was “acceptable” if not “abused.” On the contrary, it appears from the credited features of Eidam’s account of his call to Stewart that it was only em- ployees’ “personal” use of the telephones that Stewart stated was “acceptable” if not “abused,” and with no indication even then that Stewart, much less the Company, treated any use of the phones by IDCA dissidents to broadcast their messages as merely “personal” calls. The General Counsel makes similarly unconvincing claims with respect to the exchange of correspondence between Eidam and Charles Collings. Thus, according to the General Counsel, company “awareness” of improper activity can be found based simply on the fact that Eidam made general accusations of im- proper activity and specific accusations that company “man- agement” had “authorized, approved, and mailed” the purported “Greg Germ” letter. Moreover, even though Collings flatly denied in his written reply that company management had par- ticipated in the transmission of this letter, and more generally denied any company knowledge of or participation in the transmission of any dissident materials, Collings is nevertheless said to have “condoned” such supposed conduct when he stated to Eidam, “As you know, it is virtually impossible to screen all documents that are placed with the Company’s mail system.” The General Counsel does not directly challenge the truth- fulness of Collings’ statement that it was “virtually impossible to screen” the “documents” that circulated within the internal mail system. (And, from his uncontradicted descriptions of the system as noted earlier, I would be hard-pressed to doubt Collings on this score.) Rather, the General Counsel seems to start with the assumption that in this statement Collings effec- tively “admitted” that the purported Germ letter—and perhaps other dissident materials, as well—were, in fact, being circu- lated via the Company’s internal mail system. But this thresh- old assumption strikes me as wholly unreasonable in all the known circumstances, not least in its suggestion that Collings could have “admitted” to the existence of supposed activities (use of the internal mail by IDCA dissidents) that were never independently shown to have been occurring, and as to which Collings affirmatively denied any knowledge. Moreover, all of the fallback arguments that proceed from this assumption, whether resting on Collings’ reply letter or on statements made by Stewart or Pendergraft in response to Ei- dam’s complaints, fail to take into account facts that I see as critical ones: They ignore that Eidam’s communications to these company officials contained only the baldest of accusa- tions—accusations, moreover, for which Eidam had only the flimsiest basis, if any at all. Thus, based on nonspecific state- ments by Clark, Eidam merely claimed in vague terms in his calls to Stewart and Pendergraft that materials hostile to his administration of IDCA were being transmitted via company- controlled fax or internal mail facilities. And in his letter to RALEY’S 443 Collings, the only instance in which he made a more specific allegation, he merely claimed that “management” had “author- ized, approved, and mailed” the purported “Gregg Germ” letter. (Moreover, in this instance, Eidam’s accusation obviously was not based on anything that Clark or Rodrick had told him, but amounted to nothing more than bluff and bluster.) In addition, not only did Eidam lack any reliable basis for these accusations when he made them, but the General Counsel was apparently unable to discover any basis for such accusations even with the benefit of an additional 3 years in which to investigate the cir- cumstances thoroughly before being required to come forward with the Government’s proof as to the count in question. Considering these facts, it appears that what the General Counsel is really asserting in these fallback arguments is this: Even where there is no competent evidence in the first instance of supposed improper use of an employer’s internal media, and even where the employer has gone on record as denying knowledge of or involvement in such improper use, the em- ployer must nevertheless be found to have unlawfully “con- doned” or “ratified” such (imagined) activity if, (a) the union claims to the employer, without supporting evidence, that the activity is occurring, and (b) the employer then fails to take some affirmative steps to condemn and put a halt to the (imag- ined) activity. But the General Counsel has not identified any legal authority that might support such assertions, and it is strange to start with to charge “Raley’s” with “condonation” or “ratification” of supposed misconduct that was never compe- tently shown to have occurred. Such a charge is stranger still considering that Collings expressly denied that company man- agement had participated in the transmission of the purported “Greg Germ” letter, and more generally denied any company knowledge of or participation in the transmission of any dissi- dent materials. In my view, these disavowals were alone enough, considering the circumstances, to negate any sugges- tion that Raley’s “condoned” the supposed activity that Eidam had complained about. In any case, I judge that the company officials’ replies to Eidam’s various accusations cannot ration- ally be taken as proof even of company “awareness” of the supposed behavior that was the subject of the never-proved accusations, much less as “condonation” or “ratification” of such behavior. Accordingly, I conclude as a matter of law that the General Counsel has failed to establish even a prima facie case to sup- port the factual allegations as set forth in paragraph 9. Thus, I will dismiss paragraph 9, and I will reject all other prosecution arguments that assume that the allegations of paragraph 9 have been sustained. III. ALLEGED SURVEILLANCE OF AND DISCRIMINATORY WARNING TO EIDAM IN 1993 (COMPLAINT PARS. 17(A) AND (B), AND 31(A) AND (C)) Paragraph 17 of the complaint alleges as follows: Respondent Raley’s, at Respondent Raley’s Roseville, Cali- fornia store 267: (a) On various occasions in about January through May 1993, by Gary Durban, Joe Reed, or Steve Owens, engaged in surveillance of its employees to discover their union activities, (b) About May 16, 1993, by Jodie Stewart, created an impression among its employees that their union activities were under surveillance by Respondent Raley’s. Paragraph 31 of the complaint alleges as follows: (a) About May 6, 1993, Respondent Raley’s issued a warning to its employee Gil Eidam. (b) [left blank] (c) Respondent Raley’s engaged in the conduct de- scribed above in subparagraph 31(a) because the named employee of Respondent Raley’s joined and assisted IDCA and/or Local 588, and engaged in other protected concerted activities, and to discourage employees from engaging in these activities. Some preliminary deadwood-clearing is required to expose what really lies beneath all of the above-quoted counts: First, the allegation in paragraph 17(a), that three named agents of Raley’s [now, actually, only two108] engaged over the course of the first five months of 1993 in surveillance of “employees to discover their union activities,” is simply false in its use of pluralizations, and the same is true of the allegation in para- graph 17(b) that Jodie Stewart “created an impression among its employees that their union activities were under surveil- lance[.]” In fact, both counts were bottomed on nothing more than supposed actions directed against a single employee— Eidam. Separately, the impression-of-surveillance by Jodie Stewart alleged in paragraph 17(b) as having occurred on “May 16” is actually intended to refer to a supposed feature of the Eidam/Jodie Stewart “warning” transaction alleged in para- graph 31(a) as having occurred on “May 6.” Beyond that, the proof shows, and the General Counsel now concedes, that Jodie Stewart’s warning to Eidam actually occurred a month earlier, on April 6. Finally, the particular “IDCA” charge (in Case 20– CA–25354) whose investigation triggered the eventual inclu- sion of these counts in the complaint was not itself filed until May 18, 1993. (This charge alleged, “In the last 4 weeks Raley’s has discriminated against Gil Eidam and interfered with his protected activities.”) A. Alleged Pattern of Surveillance The paragraph 17(a) count alleging unlawful surveillance on “various occasions in about January through May 1993,” is based exclusively on Eidam’s testimony, which was highly- vague and impressionistic overall, and subject to considerable shifting each time he was invited to describe the timing, fre- quency, and nature of the alleged surveillance. Ignoring incon- sistencies and shifts in emphasis, the essence of Eidam’s testi- mony is as follows: After assuming IDCA’s presidency in Au- gust 1992, Eidam soon formed the impression that he was regu- larly “being watched” when he used his pharmacy telephone in the Roseville Drug Center. When initially pressed for particu- lars, the best he could do was to state that on several occasions 108 The General Counsel acknowledged during the March 10, 1997, trial session that she had introduced no proof that (assistant manager) Steve Owens had participated in the alleged patterns of surveillance, and thus moved to amend the complaint to delete Owens’ name from this count. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 444 in 1992 when he was using the pharmacy telephone, he noticed that Drug Center Manager Gary Durbin (not “Durban”) would appear on the sales floor near the pharmacy cash register counter about 12–15 feet away, and busy himself with “facing” the vitamin displays and other stock items on nearby shelves. Eidam also recalled, vaguely, that Senior Assistant Manager Joseph Reed sometimes engaged in similar behavior during the same period in 1992. Further, when pointedly steered by coun- sel for the General Counsel to the period addressed by the com- plaint (“about January through May 1993”), Eidam was even more lamentably vague, saying only that Durbin and Reed con- tinued to do such things in 1993. Moreover, when pressed for specifics as to such behavior in 1993, Eidam could recall only one incident, involving Reed, which occurred, according to Eidam’s indistinct memory, sometime in the 9-month period between January and September 1993. On this occasion, says Eidam, Reed entered the pharmacy while Eidam was on the telephone, and made a show of reviewing pharmacy stock or- ders on a nearby microfiche display. Eidam acknowledged that it was not uncommon for Reed to use the microfiche display for these purposes, but on this particular occasion Eidam somehow formed the impression (even while conversing on the tele- phone) that Reed was scrolling through the displayed data so rapidly that he could not have been able to digest the informa- tion passing before his eyes, and, so Eidam reasoned, Reed must have been trying to overhear the telephone conversation. I found Eidam’s accounts as to patterns of surveillance so hopelessly vague and otherwise unconvincing that I would not have relied on them even if Durbin and Reed had never been called to rebut them. As it is, however, both Durbin and Reed far more convincingly denied that they had ever spied on Ei- dam or had intentionally positioned themselves so as to over- hear Eidam’s conversations over the pharmacy telephone. And each offered wholly credible (and innocent) explanations for the activities that had caused Eidam to suspect unlawful sur- veillance. Thus, even if, arguendo, Eidam’s testimony might have created a prima facie basis for finding unlawful surveil- lance, I would find in the end that Durbin and Reed have effec- tively rebutted such a prima facie case. Accordingly, I will dismiss the complaint insofar as it alleges that Durbin and Reed engaged in any surveillance of Eidam for the purpose of “dis- cover[ing]” his “union activities.” B. Alleged Discriminatory Warning and Related Impression of Surveillance on April 6, 1993 Although Eidam could only vaguely recall the timing and substance of the incident, all parties now agree that on April 6, 1993, District Drug Supervisor Jodie Stewart was visiting the Roseville Drug Center and called Eidam into Drug Center Manager Durbin’s office for a “verbal warning.” Durbin was present during the session, as was a pharmacy “supervisor” of uncertain status named Fred Hegy. Only Durbin and Eidam testified about the warning session, however, and their memo- ries of what happened during it were each quite hazy. (True, some purported details of the session were more clearly memo- rialized by Stewart in a typed note that was placed in Eidam’s personnel file (R. Exh. 27); however, as noted below, Stewart’s memo of the meeting has only limited evidentiary value as to what happened during the meeting, and virtually none when it comes to important surrounding questions.) Consistent with certain features of Stewart’s memo, Durbin and Eidam both testified, and I find, that Stewart generally scolded Eidam for being on the telephone and keeping customers waiting, and instructed him to cut off any conversations on the phone when it would impair his ability to serve the customers. Moreover, Durbin specifically admitted, and I therefore find, that Stewart also accused Eidam more broadly at one point of “getting too many IDCA calls at work.” What remains entirely unclear in the end is what had occasioned the warning session in the first place; and the vagueness of the record makes it impossible to find that Eidam had, in fact, been “getting too many IDCA calls at work” at any recent point.109 As noted previously, Stewart’s April 6 warning was not the first time that Eidam had been “verbally warned” about exces- sive use of the phone for IDCA business, nor was it the first time that a memo reflecting such verbal warnings had been placed in his personnel file.110 Neither was it the last time that Eidam received such a memorialized “verbal warning.”111 109 Stewart’s memo of the incident states, inter alia, “We had a com- plaint from a pharmacy clerk that she (Lisa Silva) did not want to work with Gil again because he kept doctors waiting on hold and he would not get off his other call.” (Silva was not called as a witness, and, as previously noted, neither was Stewart.) Moreover, Durbin made no reference to a complaint by Silva as the basis for the April 6 meeting, and he did not recall Stewart mentioning a complaint by Silva during the meeting itself. (Durbin seemed to be suggesting, although equivo- cally, that a complaint from pharmacy clerk Carrie Pagan may have had something to do with the April 6 warning session; and Pagan’s testi- mony credibly establishes that she had made several similar complaints about Eidam during the previous 9 months or so, including as recently as in “March” 1993. However, Stewart’s memo clearly attributes the triggering complaint to Lisa Silva, and this “admission” causes me to give no weight to Durbin’s contrary suggestion that complaints from Pagan somehow figured in the warning session.) Arguably, Stewart’s memo was admissible (as a business-record exception to the hearsay rule) as evidence of what happened in the warning session itself. Ar- guably, too, if Stewart had clearly reported in the memo that Silva had made the supposed complaint directly to Stewart, this could have been received as evidence of such a fact, based on the same business-record exception. But Stewart made no such statement in the memo (rather, she referred more vaguely to “we”), and therefore I cannot find as fact that Silva’s supposed complaint to the indefinite “we” actually oc- curred. Neither does Stewart’s memo assert that Silva’s supposed com- plaint about Eidam included a specific claim that Eidam had been in- volved in an “IDCA”-related phone conversation. In sum, the memo is not competent to establish even that a complaint by Silva was what triggered the session, much less that Silva’s supposed complaint was the basis for Stewart’s accusing Eidam of receiving “too many IDCA calls at work.” 110 See R. Exh. 25, reflecting a warning session on September 1, 1992, and R. Exh. 26, reflecting another such session on September 14, 1992. 111 See R. Exh. 28, reflecting another warning session between Durbin and Eidam on May 5, 1993—this one triggered (as Durbin credibly testified) by a customer complaint directly to Durbin that, after Eidam had assured the customer over the phone that his prescription would be ready by the time the customer drove to the store, Eidam had nevertheless kept the customer waiting for 15 minutes in the store, because, in the meantime, Eidam had spent 15 minutes on the phone RALEY’S 445 However, the April 6 warning by Stewart was the only one attacked by the complaint as having been unlawfully discrimi- natory. Accordingly, I address next only the lawfulness of the April 6 warning. In arguing on brief that Stewart’s warning to Eidam on April 6, was unlawfully discriminatory, counsel for the General Counsel places virtually exclusive reliance on two points: First, she cites Eidam’s generalized testimony suggesting that phar- macy clerk Carrie Pagan and Head Pharmacist Michael Moore were at least equally guilty of “excessive” use of the store phones for “personal” business; second, she cites Durbin’s acknowledgment that, although he had also verbally remon- strated with Moore and Pagan (and at least one other drug clerk) for their excessive use of the phone for “personal” mat- ters, he had never written a memo about these warnings for inclusion in the other employees’ personnel files. The General Counsel’s argument is apparently driven by the assumption that Eidam’s frequent use of his worksite telephone to deal with the numerous “IDCA” issues predictably arising in a statewide bargaining unit during an especially fractious period posed no more of a problem for efficient store operations and customer service than did Moore’s and Pagan’s allegedly “excessive” use of the telephone for “personal” calls. However, this argument depends in large part on an adoption of Eidam’s self-servingly trimmed estimates of the frequency with which he used the telephone for IDCA business, and his equally dubious estimates of the frequency with which Pagan and Moore used the tele- phones for “personal” calls. Beyond that, it ignores the credible and uncontradicted testimony of Durbin, corroborated in sig- nificant part by Pagan, that Eidam was by far the worst and most chronic offender, especially in terms of keeping customers waiting, especially in the spring of 1993.112 I think the General Counsel has taken a hopeless tack. It is impossible on this record to determine whether Eidam’s use of the phone for IDCA business was no different in terms of cus- talking about IDCA business, instead of filling the customer’s prescrip- tion. 112 It appears from both Eidam’s and Durbin’s accounts that, during the September 14, 1992 verbal warning session memorialized in R. Exh. 26, Eidam had complained, in effect, that Durbin was unfairly singling him out for criticism for excessive use of the pharmacy tele- phone for IDCA business, and that others—namely Pagan and Moore— were at least as guilty of using the phone for personal business. Accord- ing to Durbin, echoed by Pagan, Durbin had thereafter warned both Pagan and Moore on the subject. Moreover, both Durbin and Pagan credibly testified that Eidam continued in the months thereafter to keep customers waiting while he engaged in frequent and lengthy telephone calls—including at least one lengthy call in “March” 1993 that lasted, according to Pagan, “1 hour and 20 minutes,” during which, according to Pagan, Eidam had spoken in angry, loud, and vulgar terms to a caller (Pagan presumed it was an IDCA member) as customers waited in line for their prescription orders to be filled. It is possible, incidentally, but hardly certain, that the particular call Pagan was describing as having occurred in March 1993 was the same one credibly described by anti- Eidam dissident Ed Wright. Thus, as I further describe in part four, sec. I, infra, Wright testified without contradiction that he was involved in a similarly lengthy and disputatious phone conversation with Eidam in March 1993 during which Eidam angrily declared to Wright, inter alia, “Nobody tells me where to shit.” tomer impact than was Pagan’s or Moore’s use of the phone for “personal” calls. Accordingly, a theory of unlawful discrimina- tion premised simply on comparisons between or among Ei- dam’s and Pagan’s or Moore’s telephone use would inevitably fail for want of proof by a preponderance. Nevertheless, I con- clude that Stewart’s warning to Eidam on April 6—particularly her accusation that Eidam was “getting too many IDCA calls at work”—had an inescapably discriminatory (not to mention hypocritical) quality. I rest this judgment on the fact that Raley’s, through the November 23 Collings’ memo to employ- ees, supra, had encouraged employees to call Eidam at his pharmacy work number with questions and complaints about his IDCA leadership policies. It was clearly foreseeable, there- fore, that Eidam would receive such calls. And, having thus encouraged such calls, Raley’s can hardly be heard to complain that Eidam was “getting too many IDCA calls at work.” Ac- cordingly, Stewart’s remonstration with Eidam on April 6 for that reason amounted to a discriminatory blaming of Eidam for a phenomenon that Raley’s itself had encouraged. Therefore, on this basis and this basis alone, I conclude as a matter of law that Raley’s, through Stewart, violated Section 8(a)(3) and (1) when she singled out Eidam for a verbal warning on April 6 that featured the criticism that he had been receiving “too many” IDCA calls. (Whether such a “verbal warning” violation warrants a remedial order at this late date, and, if so, what kind, are questions I grapple with briefly in the concluding part of the decision.) Finally, there is not the slightest evidence that anything that Jodie Stewart said or did during her warning session with Ei- dam on April 6 conveyed the “impression” that Eidam’s union activities were under “surveillance” by company managers. In fact, the General Counsel makes no attempt on brief to defend the impression-of-surveillance count. Accordingly, I will dis- miss that allegation for want of proof. PART FOUR: OTHER TRANSITIONAL EVENTS PRECEDING IDCA DISCLAIMER The 9-1/2 months of 1993 preceding Eidam’s eventual dis- claimer were more noteworthy for other transitional events than those surrounding Jodie Stewart’s verbal remonstration with Eidam on April 6. However, Raley’s is not charged with having committed any other unfair labor practices during that transi- tional period, and other events during that period have been largely ignored in the prosecution briefs—particularly those events marking the emergence of Ed Wright as the leader of a growing IDCA rump group opposed to Eidam’s leadership and his alliance with Local 588. I think these events deserve re- cording as part of the totality of the circumstances that must be taken into account in assessing the merits of the General Coun- sel’s attempt to discredit Raley’s recognition of UDCEA by seeking, in turn, to discredit the majority-showing secured by Wright for UDCEA as a “coerced” showing. I. WRIGHT’S BACKGROUND; HIS EMERGENCE AS A LEADER OF THE IDCA DISSIDENTS Unless otherwise noted, findings in this section are based on Wright’s credible and uncontradicted testimony when called as DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 446 a witness for the respondents during the trial sessions on March 18 and 20, 1997.113 In October 1992, Wright was hired as a drug clerk and began working for Raley’s in the Grass Valley Drug Center, often working as a pharmacy clerk. During the preceding 4 to 5 years, he had worked for a series of other drug store chains, beginning with Clark’s Drugs in southern California, where he was represented by a UFCW Local.114 He left Clark’s sometime in 1988 or 1989 and, as a result of marital difficulties, returned alone to his parents’ home in the northern California commu- nity of Smartsville, near Grass Valley, in the Sierra foothills. After relocating, he first found work with Thrifty Drugs in stores in Grass Valley and in nearby Auburn, where he re- mained for a year or more. During his stint for Thrifty, he was represented by UFCW Local 916, which was later absorbed into Local 588 by merger. In 1990, Wright took a new job with the Payless Drug chain in its Auburn store, where he remained until about August 1992. He then returned to southern Califor- nia for about two months in an unsuccessful effort to patch up his marriage, then returned to his parents’ home in Smartsville and was hired by Raley’s in October 1992 at the Grass Valley Drug Center. In January 1993, after completing his probationary period with Raley’s, Wright became an IDCA member. In March 1993, Wright was galvanized by a series of incidents described below to become a political ally of Pharmacist Gregg Germ, around whom a rump group of IDCA members opposed to Eidam had already formed in the aftermath of Eidam’s October 1992 alliance with Local 588. By late April 1993, Wright had become the most visible leader of the drug clerks within the growing rump group, having presided at a convocation attended 113 As will be evident, Wright’s testimony includes detailed refer- ences to the statements and conduct of, inter alia, the following persons clearly identified as agents of one or more of the charging parties at times material to Wright’s accounts: IDCA Agents Gilbert Eidam, Chris Clark (also a quondam individual charging party herein), Erik Rodrick, and Gordon Roadcap, and Local 588 Agent Marc Tulowitzky (who was also alleged and treated by the General Counsel as having been IDCA’s “designated representative” while engaged in the conduct described by Wright). All of these persons, save Clark and Roadcap, were called as the General Counsel’s witnesses during the presentation of the prosecution’s case-in-chief. However none of them was called during the General Counsel’s rebuttal presentation; consequently, none was ever invited to contradict Wright’s version of the events described below. 114 In the March 18, 1997 trial session, counsel for Local 588 ob- jected to counsel for UWRU’s attempts to examine Wright concerning his experiences with the Southern California UFCW Local while em- ployed at Clark’s. In response, UWRU’s counsel offered to prove, in substance, that Wright had taken steps to try to oust the UFCW Local while employed by Clark’s and had been discharged by Clark’s to appease the UFCW Local, and, consequently, that Wright harbored bitter feelings towards UFCW—all of this proffer said in the end to be relevant to rebut any claim that Raley’s had encouraged, influenced, or otherwise had “put-up” Wright to oppose Eidam or to form UDCEA in the aftermath of Eidam’s disclaimer. After counsel for the General Counsel acknowledged that she had introduced no evidence that would support any such claim, I sustained the objection and granted Local 588’s motion to strike the limited amount of testimony Wright had already offered in this regard. by upwards of 200 IDCA members, most of them drug clerks, and virtually all of whom voted in favor of various resolutions aimed at blocking or reversing Eidam’s prior initiatives. The members of the growing rump group then later became Wright’s political allies and key “contact people” when, in the aftermath of Eidam’s disclaimer, Wright formed and circulated petitions on behalf of UDCEA, and became the president of that organization, which soon renamed itself UWRU. Wright was moved to become a rump group activist by a se- ries of incidents that began sometime in the week prior to March 22, 1993.115 The first incident occurred on or about March 15, when Local 588 Representative Marc Tulowitzky visited the Grass Valley Drug Center, found Wright on the sales floor, and introduced himself as Wright’s “union representa- tive.” Wright took umbrage at this, responding that he “had nothing to say” to Tulowitzky, that he was in “no way, shape or form affiliated with [Tulowitzky] or his organization [but] was represented by the IDCA[,]” the first word of which, Wright noted pointedly, was “Independent.” Wright then turned away and Tulowitzky soon left the Drug Center. Probably on the same day, Wright used the OPX telephone (an internal phone system interconnecting all of Raley’s stores and its headquarters) in the backroom of the Grass Valley Drug Center to call IDCA Vice President Chris Clark. The number he called gave a “beeper” or “pager” signal and Wright punched in the Grass Valley OPX number to indicate the number for Clark’s return call. Clark soon called back on the OPX line and Wright complained about Tulowitzky’s visit. Clark replied that this was similar to what had been happening at many stores. Wright told him that a number of employees at Grass Valley had questions about what was going on, and Clark agreed to come over to Grass Valley to meet with the employees. At some nearby point, Wright talked to Grass Valley Drug Center Manager Jack Lane and obtained Lane’s permission to convene an in-store meeting between the drug clerks and Clark. Within a day or two after that, Clark came to the Grass Val- ley store in the company of Eric Rodrick, the shop steward at Eidam’s Roseville Drug Center, and, like Eidam and Clark, a member of IDCA’s bargaining team in the negotiations for a new labor agreement. Drug Center Manager Lane advised Wright that two “IDCA representatives” were in the breakroom and wanted to talk to him. Lane and Wright went to the break- room and Clark and Rodrick introduced themselves. Wright confirmed with Lane that the drug clerks could be called into the meeting, and Lane himself notified the other drug clerks on duty of the meeting and permitted them to participate, arrang- ing to have a manager “cover” the camera department so that the camera clerk could attend. Four or five other drug clerks, including the shop steward, then appeared and participated for all or portions of the ensuing meeting in the breakroom, which lasted about an hour. 115 See R. Exh. 14, a lengthy handwritten memorandum written by Wright on March 22, 1993, describing and complaining about the re- cent series of events involving Local 588 Representative Tulowitzky, as further described below. Wright gave this memo to Grass Valley Drug Center Manager Lane with a request that it be forwarded to the “appro- priate people,” so that “Raley’s [could] take steps to prevent further events of that nature.” RALEY’S 447 During the meeting, Wright again complained about Tu- lowitzky’s visit, and Clark replied that although Eidam had at one point designated Local 588’s agents to serve as IDCA rep- resentatives, this designation had been “rescinded due to the number of complaints received by the IDCA from its mem- bers.” Wright, exclaiming that this was the best news he had heard in some time, asked Clark for a copy of the letter rescind- ing this designation. Clark searched his briefcase, then stated he must have left the letter in his car and exited the room, but re- turned a few minutes later and reported that the letter wasn’t in his car, either, but that he would send Wright a copy of the letter. The discussion then broadened to other topics; Wright and other employees questioned Local 588’s role in IDCA’s negotiations, and Wright complained that, to his knowledge, it had never taken IDCA this long in the past to conclude a new agreement. (By then, the negotiations had been going on for about 6 months.) Clark acknowledged that “yes, in fact, 588 representatives were conducting the negotiations for us,” but both he and Rodrick defended this on the ground that IDCA needed the help of a “strong union” so that the drug clerks wouldn’t get “screwed over” by Raley’s. Clark also stated that the prolonged negotiations were an “intentional” part of IDCA’s “plan” (a strategy which Eidam later elaborated to Wright, infra). When the meeting eventually concluded, Clark thanked the attendees for listening to him, promised to pass on to Eidam the employees’ “views” regarding Local 588’s in- volvement in the contract negotiations, and also promised to send Wright a copy of the (supposed) “letter” that had revoked the authority of the Local 588 agents to act as IDCA’s represen- tatives. I will pause here to discuss some collateral points: Wright admittedly did not “clock out” for the meeting and was paid for his normal work shift that day. In the absence of any contrary evidence, I assume that the other Grass Valley attendees like- wise were paid for the time they spent in the meeting. (I cannot assume the same thing, however, in the cases of Clark and Rod- rick, who, although employed by Raley’s at other Drug Centers at the time of their visit to Grass Valley, may well have been conducting the visit on their own time.) Further in this regard, the parties have expressed differing interpretations regarding the significance of Lane’s permitting of the meeting. The re- spondent parties would argue, consistent with positions they took in response to counsel for Local 588’s objections to Wright’s testimony about this meeting, that Lane’s permitting of the meeting was indicative of an even-handed willingness on “Raley’s” part to give “both sides” an opportunity to debate the internal disputes that had already begun to rend IDCA, and which soon resulted in a virtual schism within its ranks. By contrast, the prosecuting parties would argue that “Raley’s” real motive for allowing the meeting was simply to provide a paid forum for Eidam’s employee-critics. Neither interpretation is frivolous or irrational, but both strike me as strained and dubi- ous. To start with, one function of the meeting, as distinguished from Lane’s possible intent in allowing it occur, cannot be doubted: It served not only as a forum for Eidam’s critics among the Grass Valley drug clerks, but likewise created a forum that allowed Eidam’s defenders, Clark and Rodrick, to express contrary views, and to extol the benefits of Local 588’s involvement in IDCA’s affairs. Moreover, in my view, the parties’ differing interpretations as to the “intent” of “Raley’s” in this instance each suffer from an over eagerness to impute to the corporate abstraction Raley’s—or to its top executives—whatever motives may have driven Drug Center Manager Lane to permit the meeting. In fact, on this record it is hazardous to so reflexively equate the individual motivations of a store manager with executive moti- vations at the corporate level. For one thing, the record shows that this was hardly the first or only time that a Drug Center manager had permitted drug clerks to use an on-the-clock meet- ing to discuss “IDCA” or other union-related matters. Indeed, the record shows that some Drug Center managers had institu- tionalized such a practice in their stores over the course of many years.116 For another, the record more generally shows that the various Drug Center managers exercised their discre- tionary powers in some ways that were nominally at odds with “official” corporate policy (such as in managers’ toleration of employees’ use of in-store phones and fax machines for “per- sonal” business of a “non-emergency” kind). Accordingly, I am not as inclined as the parties—especially the prosecuting par- ties— often seem to be, to see the corporate hand of “Raley’s” behind each of the many discretionary actions shown to have been taken by individual Drug Center managers in attempting to deal with the large number and variety of union-related is- sues that arose in their respective Drug Centers during the es- pecially fractious 1992–1993 period. Returning now to the narrative: Although Clark had led Wright to believe that IDCA officials had revoked the authority of Local 588 representatives to function as IDCA representa- tives, Tulowitzky returned to the Grass Valley Drug Center the day after Clark’s and Rodrick’s meeting with the drug clerks. He came up to the pharmacy counter and called to Wright, who was working inside the pharmacy area. Tulowitzky brandished what was apparently a copy of Eidam’s initial letter designating Tulowitzky, et al., as IDCA’s business representatives, saying to Wright , “I’ve got your proof right here. This is the authori- zation that I need, and I represent you.” Wright replied that he had nothing to say to Tulowitzky, that as far as he was con- cerned Tulowitzky did not represent him, and that nothing he showed to Wright was going to change his mind. Tulowitzky persisted, asking Wright loudly why he was “afraid of having a real union.” Wright emerged from the pharmacy and came face-to-face with Tulowitzky on the sales floor, where their exchanges became louder and more heated. Tulowitzky repeat- edly asked Wright why he was afraid of having a “real union” and Wright repeatedly asked whether Tulowitzky was trying to “solicit [Wright’s] representation while [Wright] was working.” Soon, Senior Assistant Joe Mowery came up to the faced-off duo and stated that Tulowitzky was disrupting his employees and would have to leave. Tulowitzky then left the store. Wright then went to the OPX phone in the backroom and placed another “beeper” call to Clark, who returned his call minutes later. Wright complained that Tulowitzky had just 116 E.g., Drug Center Manager Smith at Benicia, and Drug Center Manager Forkner at South Lake Tahoe/Stateline. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448 come into the store again, and asked Clark again for a copy of the supposed letter “rescinding” the prior designation of Local 588 representatives as IDCA representatives, adding that he wanted to be able to show this to Tulowitzky to ward off any future confrontations with him. Clark then denied that there existed such a letter or that he had ever told Wright there was such a letter, and he further denied that, during the meeting on the previous day, he had left the breakroom to search for a copy of the letter in his car. He also told Wright that, in fact, Local 588’s agents were authorized to represent him. Later the same day, the pharmacist in the Grass Valley store told Wright that Pharmacist Gregg Germ had been leading a movement to oppose Eidam’s leadership and his pro-Local 588 initiatives, and gave Wright Germ’s pharmacy telephone num- ber at another Drug Center. Wright then called Germ from the OPX line and briefed Germ on the Tulowitzky visits and re- lated developments. Germ, in turn, briefed Wright on other background matters, including Eidam’s (apparently by then abandoned) effort in September–October 1992 to incorporate IDCA. Germ also told Wright that he had been thinking of trying to organize a meeting of IDCA’s members to mount a more formal campaign of resistance to Eidam’s leadership. Wright volunteered to help in this enterprise. Germ also told Wright that Eidam was no longer speaking to him. Wright, noting that Eidam did not know him, volunteered to call Eidam to get further information regarding the status of contract nego- tiations and other matters. The same day or the next, Wright used his residence tele- phone to call Eidam at the pharmacy phone in the Roseville Drug Center, and they had a conversation that lasted nearly an hour. Wright identified himself as a drug clerk at Grass Valley, but did not disclose his affiliation with the Germ faction of dissidents. In this conversation, Wright and Eidam first dis- cussed Tulowitzky’s visits and confrontations with Wright at Grass Valley, the matter of Local 588’s agents functioning as IDCA business agents, and Clark’s recent contradictory state- ments concerning the existence of a “letter” rescinding Local 588’s authority to serve in that role. Eidam acknowledged that Clark had called him and had reported his recent phone call from Wright regarding the matter of the supposed letter. Eidam explained that at one point he and Clark had talked about issu- ing such a letter, but that it had never gone further than that, and that, in fact, no such letter had ever been written. Wright and Eidam then talked at length about Local 588’s role in the contract negotiations. Eidam asserted that Local 588 was a “professional” representative that could help the drug clerks get a “better deal” from Raley’s—specifically, wage parity with the grocery clerks represented by Local 588. Eidam further opined that IDCA had always “rolled over” in previous contract nego- tiations, and was a “puppet” of Raley’s. Wright said he thought that the goal of wage parity with the grocery clerks was ridicu- lous and doomed to fail because none of the drug chains he had worked in, including those represented by UFCW locals, had ever agreed to any such thing. He also complained that the negotiations were apparently being drawn out over this issue. Eidam said that this was intentional and part of his bargaining strategy, all done with the goal of keeping the negotiations open until Local 588’s multiemployer agreement covering grocery clerks would expire, so that the drug clerks and the grocery workers could go out on strike jointly, and, by this show of “solidarity,” could expect Raley’s to deal more “fairly” with both groups of workers. Wright predicted that the grocery workers would never go or stay out on strike simply to support IDCA’s wage-parity demands, because they had always treated the drug clerks as “second-class citizens,” typically referring to them as “drug slugs.” He also accused Eidam of pursuing his strategy of delay simply to serve Local 588’s interests, not those of the drug clerks, and he complained that the drug clerks were being “held hostage” as a result. Eidam responded angrily, “Nobody tells me where to shit.” (Wright took this as an “arro- gant” brushoff, implying that Eidam was not about to take in- structions from Wright. I think it’s just as likely that Eidam was here reacting angrily to Wright’s suggestion that he was merely acting as a stooge for Local 588, and, by these remarks, was professing to be his “own man.”) Wright asked Eidam where he found the authority in IDCA’s bylaws to support his decisions, and Eidam began to quote language which (according to Wright) did not match up with any language in the copy of IDCA’s bylaws that Wright had secured. He challenged Eidam regarding these alleged discrepancies and Eidam explained that his executive board had approved “new by-laws” authorizing these decisions. Wright stated that as far as he knew the shop stewards in the Drug Centers had not been provided with copies of these “new by-laws,” and Eidam rejoined that the shop stew- ards were not part of his executive board. Soon after this, Ei- dam noted that his fellow pharmacist was returning from his lunch break and said that he would have to terminate the con- versation because it would no longer be “private,” but invited Wright to call him later at his own home if he wanted to pursue the discussion. Following these events, in late March, Wright and Germ met at a private home with about seven shop stewards from various Drug Centers who were commonly opposed to Eidam’s leader- ship and the direction in which he was taking IDCA. They agreed to invoke IDCA bylaws supposedly permitting 10 per- cent of the membership to convene a quarterly meeting of IDCA. (Wright testified that Germ by then had a “list with almost 300 signatures on it requesting [such a] meeting.” I place no reliance on this undocumented and summary claim.) Wright and the others prepared a letter announcing that such a meeting would take place on Sunday, April 25, at the Eagles Hall in Roseville. Wright assisted in the addressing and mailing of these letters, most of which, apparently, were not mailed to IDCA members’ homes, but were addressed to the membership in care of the Drug Centers where they worked. However, cop- ies of the letters were addressed personally to IDCA’s “consti- tutional officers,” President Eidam, First Vice President Clark, Second Vice President Gayle Del Greco, and Secretary- Treasurer Gordon Roadcap. In fact, three copies were person- ally mailed to each of those officers, one to the Drug Center where each worked, another to their residence address, and the third to IDCA’s office address. The April 25 meeting at the Eagles Hall lasted nearly 4 hours, and was attended by 150–200 Drug Center employees, including about 20 shop stewards, but by none of the previ- ously-named “constitutional officers” of IDCA. It appears that RALEY’S 449 the attendees were generally united in their opposition to Ei- dam’s leadership. (One exceptional attendee was Rancho Cor- dova Drug Center pharmacy clerk Brenda Peterson, who strongly favored Eidam’s alliance with Local 588, which she saw as a “real union,” who was scornful of the notion that IDCA was a genuinely “independent” labor organization, and who, during the meeting, was outspoken in expressing such views.) Wright was authorized by a preliminary voice vote to chair the meeting. Eventually, two resolutions were proposed for discussion and a voice vote: The first was to demand that Eidam rescind his previous designation of Local 588’s agents to act as IDCA’s business agents. The second was to elect a new negotiating committee for the drug clerks, to consist of Wright, Germ, and five others. During discussions on each of these resolutions, Brenda Peterson’s was the most distinct dissenting voice, and she likewise cast the only “nay” vote when the final voice vote was taken on each resolution. She left the meeting after these resolutions were passed, and the meeting continued for at least 2 more hours after her departure. Later in the meet- ing, another motion was also made and passed by voice vote— to call for a new election of IDCA executive officers. Following the meeting, on April 28, Wright mailed a letter and an attachment of purported minutes of the meeting (R. Exh. 21) to Eidam. The letter demanded that Eidam take certain actions contemplated by the resolutions by “no later than 9:00 a.m. on Wednesday, 5 May 1993.” In a followup telephone conversation between Eidam and Wright, Eidam stated that, “on the advice of counsel,” he did not intend to comply with these demands. Wright himself later abandoned the demands, particularly insofar as they contemplated the substitution of himself and others for the existing IDCA negotiating team, consisting of Eidam, Clark, Rodrick, and Local 588 Executives Reginato, Tursky, and Jacques Loveall.117 At some nearby point, Wright suffered a herniated spinal disk injury while working, and, effective May 13, 1993, began an extended disability leave of absence that continued, inter- rupted by a few brief attempts to return to work, for the better part of the next year. Accordingly, virtually all of Wright’s activities described below and in succeeding sections were conducted while he was on disability leave and receiving work- ers compensation. However, Wright’s testimony indicates that even after beginning his disability leave, he continued to make regular visits to the Grass Valley Drug Center, for a variety of purposes. One was to stay in touch with his coworkers and fellow IDCA dissidents within the store. Another was to use the store fax machines to transmit disability-related forms and cor- respondence to Raley’s insurance carrier. Another was to use the OPX line in the backroom to share information with and coordinate strategy among the IDCA dissidents at other Drug Centers, i.e., the drug clerks, including many shop stewards, 117 See Lo. 588 Exh. 15, a June 1 letter from Wright faxed to Raley’s “Mr. Collings,” advising, inter alia, that Wright’s substitute negotiating team would no longer seek to represent IDCA at the bargaining table, that “a contract is the most important item of business for the I.D.C.A. right now, over-riding any other internal conflicts,” and further express- ing the hope that both Raley’s and IDCA would “resume bargaining in good faith, and with the best interests of the employees in mind.” whom Wright generally referred to as his “contact people” at the other stores. There is no doubt that managers at Grass Valley were aware of at least some of Wright’s frequent visits to that store after he went on disability leave. Thus, when Wright used various store fax machines on at least three occasions to transmit disability- related paperwork, he first received permission either from the Drug Center manager (Jack Lane), the Grocery manager (Bob), or a pharmacist. However, there is no distinct evidence that any managers were aware of his occasional use of the OPX line in the backroom. Moreover, on this record, it was not particularly remarkable that Wright’s store visits included visits to the back- room, where the OPX line was located. Indeed, the General Counsel established through the uncontradicted testimony of several employee-witnesses that employees were generally permitted to enter the Drug Centers (including Drug Centers where they did not work), and to visit with their fellow em- ployees on the sales floor or in the backroom areas, including in the breakroom. Moreover, the OPX line was commonly used by employees for personal calls, and, consistent with the parties’ stipulation previously noted, the record easily allows me to find that managers did not seek to prevent such uses, per se, but only in cases of abuse, where managers perceived that the em- ployee was tying up the phone line. II. JULY THROUGH EARLY SEPTEMBER: BARGAINING STALEMATE; LAST OFFER REJECTED BY IDCA AND IMPLEMENTED BY RALEY’S Findings in this section are based in part on documents of re- cord, as supplemented by Wright’s uncontradicted testimony regarding interstitial events. On July 20, corporate labor relations chief Kenneth Collings published a memo addressed to “All Raley Employees Covered by IDCA Contract (Clerks)” (Lo. 588 Exh. 1). In this memo, Collings stated that the drug clerks had been provided a copy of “the Company’s best and final offer to the IDCA negotiating group[,}” and that the Drug Center managers had held store meetings to explain the offer and to answer questions, all “so that you would be best prepared to vote on your contract.” (The record does not independently show that any such meetings occurred, and I make no such finding.) The balance of the memo responded to some of the common questions that sup- posedly had been raised during the store meetings. Among the questions and answers set forth in the memo were these: Q. How soon would the retro be paid if the contract was approved?” Answer: As with past contracts, it takes approximately 4–6 weeks. Q. How can we vote on the contract? What will the procedure be—voting in person, or mail-in ballots? A. The “How, When and Where” of the voting proce- dure is determined by the by-laws in your IDCA constitu- tion, as applied by your current IDCA officers. They will need to provide you with those specifics. Q. Could there be a strike. What would happen? A. The IDCA does have the legal right to strike if the membership chooses to vote for a strike. If that occurred, Raley’s would continue to operate its stores, with the out- come of the strike undeterminable at this point in time. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450 . . . . Q. Is the retro pay tied to the contract being ratified by August 9, 1993? A. Yes, the clause on retro pay is withdrawn if the contract is not ratified by August 9, 1993.[118] Sometime in August, apparently before August 9, Wright was told by the shop steward in the Grass Valley Drug Center that IDCA was conducting meetings with employees relating to Raley’s final contract offer. Wright then used the OPX phone in the backroom and called IDCA Vice President Clark at Clark’s “beeper” number, then punched in the Grass Valley OPX num- ber for a return call. Clark soon called back on the OPX number and Wright asked Clark about the rumored meetings, particu- larly, whether they were merely “informational,” or if a “vote” would be taken at the meetings. Clark assured Wright that the meetings were simply to discuss Raley’s contract proposal, and that “the votes would be held as they had always been held. They would be sent to the shop stewards at the store, and the shop steward would collect the votes from the employees at the store.” Clark said that “a mailing had gone out notifying people of the meetings.” Wright said that he hadn’t received such a mailing. Clark said he would fax a copy of the meeting sched- ule announcement to Wright and asked for Wright’s fax num- ber. Wright gave Clark the number for the fax machine in the Grass Valley pharmacy. Within 10 minutes after this, as Wright waited outside the pharmacy, the pharmacist handed Wright a fax that had just come through. Wright recalled that the fax was in the form of a general announcement on IDCA letterhead stating that Raley’s had submitted a contract offer that IDCA was recommending be rejected by the membership, and that meetings would be held at specified dates and locations to dis- cuss the offer. He further recalled that the fax also included Wright’s handprinted name at the top and the signature, “Chris,” at the bottom. Not long after this, however, Wright received word from one of his contact people in the Sacramento area that meetings had been held in and around Sacramento and that a “vote” had actu- ally been taken at the meeting attended by Wright’s informant. Wright then used his home phone to call Vice President Clark at his pager number, and Clark soon returned the page and con- firmed to Wright that votes were being taken at the meetings then being conducted. Wright protested that Clark had previ- ously assured him that the meetings were to be “informational” only, and that no votes would be taken. Clark replied, “On the advice of counsel, we’ve decided to hold votes at these meet- ings.” Wright rejoined, “And your counsel’s 588, right?” Clark replied, “You betcha.” Wright was aware from the faxed meeting-announcement schedule he had earlier received from Clark that another meet- ing, apparently the last of them, was to be held the same eve- ning, in Red Bluff, roughly 100 miles northwest of Grass Val- ley. Wright immediately drove to the Grass Valley Drug Cen- ter, informed all of the drug clerks in the store that votes were 118 As noted further below, however, when Raley’s implemented its final offer on September 1, it announced to employees that it had de- cided to confer the retroactive pay contemplated by that offer, in the hope that this might trigger a new vote by IDCA members on that offer. being taken, and stated that “if we wanted to accept this con- tract and put an end to what had been going on, we had to at- tend that meeting in Red Bluff that night.” Then he went to the back room and used the OPX phone to call his “contact people in the northern part of the state,” spending, “off-and-on, about 30 minutes” in this enterprise. Wright and about five other drug clerks from Grass Valley drove to the Red Bluff meeting the same evening. The meeting was chaired by IDCA Secretary-Treasurer Gordon Roadcap. About 60–70 other drug clerks were also present, including two from the northernmost Drug Center in Yreka. Roadcap stated that the meeting would involve a brief discussion about Raley’s last contract offer, following which there would be a vote, and that the IDCA leadership was recommending that the company offer be rejected. In fact, there was more than a brief discussion preceding the vote, due in large part to pointed questions from Wright and other dissidents in attendance about the history of Local 588’s involvement in the negotiations and other equally controversial matters. Roadcap reviewed the contract proposal, noting that the new wage rates for the drug clerks would be common except for the Yreka employees.119 Eventually, each of the attendees was given a ballot to be marked and placed in a single ballot box. When everyone, including the two Yreka attendees, had placed their ballots in the same box, Roadcap then unsealed a number of envelopes apparently containing ballots collected during previous meetings, and poured them into the same ballot box. Following this, all of the pooled bal- lots were counted, resulting in a final tally (as Wright some- what dubiously recalled) “in the neighborhood of 102 votes to reject the contract and 98 votes to accept. I know that it was a four-vote margin that the contract was rejected by.”120 On September 1, Raley’s published and transmitted to all Drug Centers a memorandum addressed to “All IDCA Repre- sented Drug Clerks.” The memo announced the implementation of the Company’s wage offer, including the “retro pay” that had been contemplated by its previously-described “last and best offer.” The memo, signed by the executive vice president for the Company’s drug division, David Steitz, stated that the com- pany had recently met with IDCA and had announced its inten- tion to implement these increases and that “the Company’s decision to implement the wage increases was made after a careful review of the IDCA’s position not to make any changes in their proposals made to the Company on July 8, 1993.” Steitz further stated in the memo that it was “Raley’s desire to con- clude this prolonged process and end any continued economic loss and hardship experienced by our employees[,]” and that the company had “told your IDCA representatives that our 119 IDCA’s bargaining team and Raley’s negotiators had previously exchanged proposals concerning wages affecting Yreka drug clerks, all in the context of common negotiations for an overall agreement. 120 Wright later acknowledged, however, that he calculated this “four-vote margin” only after first accounting for the (supposed) fact that IDCA’s constitutional officers had cast ballots at more than one of the prior meetings. There is no independent evidence that this occurred. Accordingly, while I accept from Wright’s uncontradicted testimony that the margin of rejection was a fairly narrow one, I do not embrace his assertion that only four votes stood between rejection or acceptance. RALEY’S 451 measured response is in hopes they will re-vote and accept the Company’s final offer[.]” So far as this record shows, no “re-vote” was ever con- ducted. Neither did IDCA or Local 588 call a strike, much less did they together call a combined, “solidarity” strike in support of wage-parity between drug clerks and grocery clerks. Instead, 2 weeks later, Eidam, with Local 588’s advance knowledge, disclaimed any further interest in representing the drug clerks, thus triggering the events narrated and discussed below in parts five and six. PART FIVE FROM IDCA DISCLAIMER TO UDCEA RECOGNITION: CHRONOLOGICAL OVERVIEW AND DISCUSSION OF CERTAIN UNDISPUTED EVENTS In this part, I will describe and discuss some of the undis- puted features of the factual setting in which the most critical unfair labor practices are alleged to have occurred, i.e., those alleged violations on which the General Counsel relies in at- tacking UDCEA’s majority showing as a coercively tainted one. In the course of this narration I will also record my reac- tions to the prosecuting parties’ interpretations of and argu- ments relating to some of these events, including instances where the proffered interpretations amount to attempts to allege that Raley’s violated the Act by conduct that was never called into question by the complaint. In part six, I will confront and dispose of particular allegations of unlawful assistance and/or coercion as set forth in the complaint. In part seven, I will re- view the totality of the circumstances as I have found them, concluding that they don’t add up to a case for voiding the rec- ognition or the bargaining relationship that traced from UDCEA’s demonstration of majority support as of September 23, 1993. I. EIDAM’S DISCLAIMER LETTER TO RALEY’S AND HIS EXPLANATORY LETTER TO THE DRUG CLERKS On Tuesday, September 14, 1993, Eidam signed and dis- patched two copies of the disclaimer letter quoted below, ad- dressing it to “Raley’s Supermarkets, Inc.” [sic] to the attention of Daniel Abfalter, the new manager of labor relations, who had succeeded the recently-retired Kenneth Collings. Eidam sent one of these copies by certified mail, and that copy did not arrive in Abfalter’s office until some date after September 14. However, Eidam, or perhaps someone he deputized, transmitted another copy of the letter (GC Exh. 124) from a fax machine in Raley’s Del Mar store, and the fax copy was brought to Abfal- ter on the afternoon of September 14, providing the first notice to Raley’s of the disclaimer.121 The letter, signed by Eidam as IDCA’s president, stated: 121 The General Counsel’s questioning of Abfalter during the prose- cution’s case-in-chief establishes that Abfalter first saw the fax copy on the afternoon of September 14. When Eidam was later called as a prosecution witness, he was not invited to comment at all about the fax copy, much less to explain the circumstances under which the copy was transmitted from a Raley’s store fax machine. Considering that only Eidam or one of his trusted deputies could have been in possession of the disclaimer letter as of September 14, the inference is warranted that Dear Mr. Abfalter: This is to notify Raley’s that the Independent Drug Clerks Association hereby disclaims any and all interest in representing your Drug Clerk employees. This disclaimer of representational interest is unconditional, irrevocable, and effective immediately and covers the entire drug clerk unit(s) previously represented by the IDCA. Also on September 14, Eidam mailed the following letter (GC Exh. 52) to all “IDCA Clerk Members,” which he likewise signed as IDCA’s president: During the past 30 years, the Independent Drug Clerks Association and the company have had a cozy relationship to say the least. During this time, the company has domi- nated the Union and as a result, your wages, benefits, and contractual rights are less than those enjoyed by your co- workers who are represented by UFCW 588-Northern California. During these last round [sic] of negotiations, we did everything humanly possible in a valiant attempt to bring your wages and benefits up to the same level as your co- workers. Quite frankly, we did not succeed. We did not fail because of a lack of spirit or dedication. Your negoti- ating committee, comprised of Chris Clark, Eric Rodrick, Gordon Roadcap, Tom Moore, and myself, has worked tirelessly on your behalf. We did not obtain our goal because the company, by using the IDCA, has kept us separate from our co-workers. This is the old theory of “divide and conquer” which has served the company well over the last 30 years. Therefore, today we have truly declared our Independ- ence. On September 14, 1993, we notified Raley’s that the IDCA is no longer interested in representing the Drug Clerks for collective bargaining. What this means is that in the future you will have the right to choose the Union of your choice [sic]. One choice would be UFCW 588-Northern California which is a union with over 25,000 members that has pro- vided responsible representation to our co-workers for over 50 years. UFCW’s qualified staff of full-time, paid representatives of the Union service the members on a regular basis thus assuring that all the terms and conditions of the contract are being adhered to. They also have a first- class Shop Stewards Program which includes an on-going continuing education program to keep the Stewards fully informed. Above all, they believe in one Union for all em- ployees working for the same company. We are excited over the action that has been taken be- cause we truly believe it will result in your obtaining equality with your co-workers. A copy of this letter found its way to company headquarters the next day, September 15. only Eidam or someone he deputized could have been responsible for transmitting the fax copy that Abfalter received the same afternoon. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452 II. INITIAL REACTIONS OF RALEY’S ON SEPTEMBER 14–15: ABFALTER-WRIGHT CONVERSATION; TEEL’S LETTER TO DRUG CLERKS Upon receiving the fax copy of the disclaimer letter on Sep- tember 14, Abfalter called Attorney Patrick Jordan, Raley’s longstanding labor counsel, who was then and continued to be at all material times in 1993 a partner in the San Francisco law firm of Keck, Mahin & Cate.122 The purpose of this initial call was to make arrangements for Jordan to participate in a follow- up conference call that would include three other top Raley’s executives, co-chair of the board, James Teel, Vice President of Human Resources Sam McPherson, and Executive Vice Presi- dent of Drug Operations David Steitz. After arranging the con- ference call, Abfalter went to a different building across the street from his own office and joined the three other executives. (Of this executive group, only Teel and Abfalter were called as trial witnesses, and then only by the General Counsel, during the presentation of the government’s case-in-chief. Their essen- tially harmonious testimony is the sole basis for my findings here and below about discussions within Raley’s executive councils.) The management group then conferred by telephone with Jordan to discuss Raley’s “strategy” (Teel’s word) in the light of the disclaimer development. Both during and after the conference call, the executives reviewed and discussed prelimi- nary drafts of a letter to the drug clerks intended to set forth Raley’s “response” to the disclaimer. The next morning, Wednesday, September 15, Abfalter re- ceived a copy of the September 14 letter Eidam had sent to the drug clerks announcing the disclaimer and recommending that they select Local 588 as their new representative. Abfalter and McPherson talked about revising their response to the dis- claimer in the light of the attacks on the Company and the pro- Local 588 messages set forth in that letter. (The original re- sponse draft, according to Abfalter, was intended to convey a company posture of “neutrality” regarding the disclaimer de- velopment, but the executives began to work up a more partisan response, he says, once they read Eidam’s letter extolling Local 588’s qualifications to serve as the drug clerks’ new representa- tive.) Abfalter and MacPherson (and perhaps Teel, as well) then conducted another telephone conference with Jordan that morn- ing relating to this latest development. And they had a further telephone conference with Jordan later that afternoon, after Abfalter had received notification from Ed Wright that he would be organizing and circulating petitions for his new un- ion, as described next. Ed Wright first learned of the disclaimer shortly before noon on September 15, when he picked up his mail at his local post office box in Smartsville and found a copy of Eidam’s letter to the drug clerks announcing the disclaimer and expressing his excitement over the opportunity it presented for the drug clerks to become represented by Local 588. Wright, who testified that he had been anticipating such a possibility for some time, must have likewise greeted the disclaimer announcement with a cer- 122 The record shows that the Keck firm later dissolved, leading Jor- dan, retaining Raley’s as a client, to his current position in a new firm, Jeffer, Mangels, Butler & Marmaro, the firm he was associated with by the time this case was brought to trial. tain excitement over the opportunity it presented: He immedi- ately went home and began to consult by telephone, first with pharmacist Gregg Germ, and then with some other contact people in the anti-Eidam rump group. They agreed to start a new union and to call it United Drug Center Employees Asso- ciation. They also agreed on the language (infra) that was in fact used in the petitions that they soon began to circulate among the drug clerks. Shortly after 1 p.m., Wright called Raley’s Sacramento head- quarters from his home telephone, asking initially for Kenneth Collings, wrongly assuming that Collings was still on the job and in charge of labor relations. He was eventually connected with Abfalter, and the two had a 4-minute conversation. While Wright’s and Abfalter’s respective versions of the conversation from the witness stand are harmonious, they include a predict- able number of marginal discrepancies as to the sequences of their exchanges and the particular phraseology used by each of them. My findings next reflect a blending of features in both versions that seem probable in the light of known surrounding circumstances. However, in cases of doubt as to a potentially material point, I have favored Wright’s version, which struck me in the end as the more straightforward and candidly- delivered one. Wright did most of the talking.123 He told Abfalter that he and other employees were forming a new, “independent” union, to be called United Drug Center Employees Association, and intended to circulate petitions of support for it. He also told Abfalter to be on the lookout for copies of signed UDCEA petitions that would soon be arriving at company headquarters, explaining further that the signed petitions would probably be turned-in by employees to their respective Drug Center manag- ers with a request that they be forwarded by fax to Abfalter’s office. Wright also told Abfalter to be prepared for a demand for recognition from the fledgling union. Abfalter told Wright that Raley’s would recognize the new organization if it could secure evidence of support from a majority of the drug clerks.124 After concluding this call, Abfalter briefed McPherson and Teel concerning Wright’s plans, and the company executives also called attorney Jordan again—for the purpose, as Teel put 123 Although Abfalter struck me at certain moments as a coy and squirmy witness, I credit as inherently probable Abfalter’s memory that the call involved not so much a “conversation” with Wright as it served as the occasion for Wright, clearly excited and perhaps even “high on himself” (Abfalter), to declare his intentions and prepare Abfalter for the UDCEA petitions that Wright expected would soon be arriving at Abfalter’s office. 124 According to Abfalter’s more mincingly cautious version, Abfal- ter merely advised Wright that Raley’s could not recognize UDCEA “or any other union” without proof of majority support. I am mindful that the Company soon updated and revised its “response” letter, infra, to incorporate a passage containing similarly cautious language. But that passage could not have been agreed on or approved prior to Wright’s call to Abalter, which was itself the trigger for the addition of the passage in question. Therefore, I doubt that Abfalter referred to the possible recognition of “any other union” when, as I find, he assured Wright that Raley’s would recognize UDCEA on a showing of majority support. RALEY’S 453 it, of “find[ing] out what our strategy would be with this new development.” Regarding these various “strategy” sessions on September 14–15, Teel further testified as follows, during supplemental adverse examination by counsel for Local 588: [BY MR. JELLISON] Okay. So you began to develop your strategy on the 14th, correct? A. Yes. Q. All right. And that strategy was to devise a course where you could continue to recognize an independent un- ion representing Raley's employees, correct? A. No. No, not at that time. Q. Okay. Some later time, did that policy develop? A. The following day. Q. Okay. And the policy also was to do what you could to prevent Local 588 from representing the drug clerks, correct? A. Yes.[125] These matters deserve further comment: On brief, the Gen- eral Counsel and Local 588 both ride extremely hard on Teel’s affirmation of Local 588’s counsel’s suggestions about the company’s “strategy” and “policy” as it had evolved by the afternoon of September 15. Indeed, they interpret these affirma- tions as a virtual confession that Raley’s “strategy” was to pro- vide unlawful assistance to UDCEA. Thus, the General Counsel finds Teel’s “admissions” to be “extremely significant” (Br. 97), and immediately infers from them that, as of the afternoon of September 15, the company executives had “determined that [Raley’s] was going to have to take an active role to ensure that Wright’s new group obtained a majority before Local 588 did in order to prevent Local 588 from representing the drug clerks.” Id. (emphasis added). However, in an especially gassy and looping discussion over the course of the next three pages, counsel for the General Counsel only murkily elaborates her reasons for making this inferential leap, and she demonstrates in the end only that the leap was the product of bootstraps rea- soning to begin with—reasoning, moreover, that traces not at all from the actual content of the “admissions” made by Teel, but simply from the General Counsel’s supplemental specula- tions about Raley’s supposedly overriding “concern” that Local 588 would acquire evidence of majority support from the drug 125 To round out the context in which Teel thus responded, this is what he said in reply to two immediate followup questions: [BY MR. JELLISON] Q. Part of that policy was to permit the independent union, which then became known as UDCEA, United Drug Clerks Employees Association, to use the fax ma- chines at Raleys in sending their petitions in support of that union to Raleys, correct? A. No. Q. Did it ever come to your attention that that’s how the peti- tions were sent to Raleys— A. No. Q. —by Raleys’ faxes? Nobody ever reported that to you? A. No. Q. Okay. clerks before Wright and his allies were able to make an effec- tive organizing pitch to them on behalf of UDCEA.126 As may be evident already, I think these dark interpretations of Teel’s “admissions” are not merely speculative but quite overwrought. For one thing, even though Raley’s executives admittedly expected Local 588 to make an organizing run on the drug clerks, and clearly did not relish having to deal with Local 588 as the drug clerks’ representative, there is no good reason on this record to suppose that the executives were fear- ful that Local 588 would be able to quickly secure a “majority” showing of its own, absent the company’s intervention on be- half of UDCEA. Perhaps more important, Teel also testified credibly concerning these “strategy” sessions that he had in- structed Abfalter and McPherson “to work closely with our counsel, to be sure that we played the game by the book[,]” because, “[h]aving been through this before, I didn’t want to have the same problems we had had in the past.” Moreover, Teel’s acknowledgment concerning the Company’s evolving “strategy” was made in the context of describing the events of September 14–15, when Teel and the other executives were shown to have been engaged only in developing a “strategy” for a “response” letter—not any overall “action” strategy. Thus, considering the context, I find it far easier to interpret Teel’s affirmation of counsel for Local 588’s suggestions as merely a reference to the outcome that the company executives admit- tedly preferred, once they learned on September 15 of Wright’s UDCEA organizing plans, and as not necessarily inconsistent with Teel’s parallel wish to stay in close touch with company counsel to ensure that Raley’s said and did only what it might lawfully say and do in aid of that preferred outcome. Of course, lawful intentions do not necessarily portend law- ful actions, and it is a separate question whether or not Raley’s or any of its agents crossed the line in certain specifically al- leged respects. But I remain unpersuaded that Teel’s quoted “admissions” can be taken as substantial proof that, by Septem- ber 15, Raley’s executives had formulated some over archingly unlawful scheme of “action” aimed at “ensur[ing] that Wright’s new group obtained a majority before Local 588 did in order to prevent Local 588 from representing the drug clerks.” Accord- ingly; my further analyses will not be informed by any assump- tion that Teel “admitted” (or even implied) by his testimony 126 Thus, purporting to defend her initial speculations about the “sig- nificance” of Teel’s “admissions” (i.e., that they show that Raley’s “determined that it was going to have to take an active role to ensure that Wright’s new group obtained a majority before Local 588 did”), the General Counsel simply introduces an additional speculation—that “Teel and the others must have worried that Wright would not have a chance to beat Local 588 without their assistance[,]” and “they must have been extremely concerned about how long it would take Wright to get about 350 or so employees in over 50 drug centers spread through- out Northern California to sign petitions.” Id. at 98. Then, following additional musings that Raley’s must have seen Wright as its “knight in shining armor,” but that “Raley’s had no idea whatsoever whether Wright could successfully pull this off and beat Local 588 without Raley’s assistance” (id. at 99), the General Counsel simply restates her initial speculation as a conclusion, as follows: “The most likely infer- ence to be drawn from the evidence [sic] is that Raley’s did not think Wright could succeed on his own, and assumed that its assistance would be necessary.” (Q.E.D.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454 that Raley’s intended to provide unlawful assistance to Wright’s organizing efforts; much less will my analyses be influenced by any of the many additional claims made by the prosecuting parties that proceed from this spurious initial prem- ise. Returning to my narrative: During their afternoon telephone conversation on September 15, Jordan advised the executives that he would be leaving the next day for a roughly 2-weeks’ long vacation trip to Europe, but that he had arranged with his former associate in representing Raley’s, Attorney Henry Telfeian, who was now in solo private practice, to handle his legal responsibilities to Raley’s in the meantime, and, therefore, that the executives should consult with Telfeian regarding any further developments during Jordan’s absence.127 Thus, it was to Telfeian that Raley’s turned for additional legal consultation and assistance in the days after the September 15 conversations with Jordan, including, as further described below, in the an- ticipatory drafting of the letter granting recognition to UDCEA, and in the crafting of the final version sent by Abfalter to Wright on the evening of September 23. Following the second, afternoon telephone conference with Jordan on September 15, Abfalter received a fax from Jordan’s office containing another draft of a company response letter. Teel, Abfalter, and McPherson may have tinkered further with the text, and they decided on its final format, agreeing that it should be on letterhead from the “corporate office” (rather than using the more conventional format for more routine memo communications from headquarters), and that it should be signed by Cochair Teel, himself. Teel signed the original memo later on September 15, and copies of the signed memo were then mailed to employees at their home addresses, while other copies were sent to the Drug Centers. Although the record con- tains no clear indication how and when these “store” copies were dispatched, I presume that they were sent out the next morning, September 16, via the Company’s internal mail sys- tem, which, as previously described, relied on produce trucks leaving in the morning from the Sacramento warehouses to make deliveries to the far-flung stores in the chain. If so, the 127 As discussed more fully in part eight, sec. I, Telfeian was then well known to Raley’s by virtue of his prior representation of the Com- pany over the course of the preceding decade or more, all during his association with Jordan in a succession of firms. In recent years, for about 13 months ending on December 31, 1991, Telfeian had been “of counsel” to the Keck firm, where Jordan was now a partner, and Telfeian had handled many legal matters involving Raley’s during his “of counsel” tenure with that firm. However, Telfeian left the Keck firm at the end of 1991 to begin a solo private practice (and to participate in an import-export business venture involving the creation of a joint, Russian-American law firm). However, in January 1993, Telfeian had arranged with Jordan to provide ad hoc assistance to Jordan and the Keck firm on an “hourly-contract” basis, with Telfeian retaining “veto power” over any such proposed ad hoc work. In the week preceding the disclaimer, Jordan had also arranged to have Telfeian fill-in for him in handling the affairs of another supermarket-chain client of the Keck firm, Lucky Stores. Then, after learning on September 14–15 of Ei- dam’s disclaimer and Wright’s efforts to organize employee support for UDCEA, Jordan had called Telfeian again, briefed him on these devel- opments, and secured Telfeian’s agreement to counsel Raley’s on these matters during Jordan’s absence. copies were probably delivered to most Drug Centers on Sep- tember 16, with the precise timing of their delivery at any given Drug Center varying according to their distance from Sacra- mento headquarters. Set forth below is the full text of the published version of the Teel memo (GC Exh. 14), which, I emphasize, is not itself al- leged in the complaint to have constituted an act of unlawful assistance, nor to have contained any unlawfully coercive mes- sage: RALEY’S SUPERMARKETS AND DRUG CENTERS _________________________________________________ CORPORATE OFFICE September 15, 1993 To: All California Drug Center Employees From: Jim Teel /s/ Subject: Response to Gil Eidam’s Letter We were informed this morning that many of you have received a letter from Gil Eidam announcing his decision, on behalf of your union, the IDCA, to disclaim interest in representing Raley’s Drug Center employees. This means that you are no longer represented by a union. Although we regret Mr. Eidam’s decision, which effectively severs 30 years of independent representation, it does present a whole set of opportunities for you and our company. We are not surprised by this announcement. We have watched Mr. Eidam assist the Grocery Clerks Local #588 in its efforts to take over the IDCA for some time. First, Mr. Eidam tried to change your Bylaws. This effort vio- lated many regulations of the Department of Labor, and was a failure. Mr. Eidam also hired representatives of Lo- cal #588 to act as business representatives and to sit at the bargaining table. Their involvement was unprofessional, confusing, and totally unsuccessful. It was not until Raley’s brought some sense to the bargaining table and decided to implement its final wage increases that you re- ceived your wage increase. Your overwhelming positive response to our decision to grant wage increases may have convinced Mr. Eidam that it was time to reveal his true purpose. That purpose was to turn your union over to Lo- cal #588, with a potential for higher dues, use of Grocery Stewards, and even the possibility of a strike. First of all, we do not want you to worry, all wages and other terms and conditions of your employment will remain as announced. Second, we have been approached by a group of your fellow employees who are interested in forming a new in- dependent union. They want to take over where the IDCA left off. We told them that for Raley’s to recognize them as your union they must prove to us that over 50% of you want them. To get that proof, they may ask you to sign a petition or an authorization card. Raley’s is willing to rec- ognize any union that you wish. By signing a card or a pe- tition, you will be telling us that you want us to recognize this union as your representative. RALEY’S 455 We want to emphasize that your right to support or oppose any specific union is guaranteed by federal law. However, the decision you make will have a large effect on your working environment. Please give the matter your serious consideration. In the meantime, we will continue to keep you up to date on any new developments. III. ABFALTER’S SEPTEMBER 16 MEMOS TO DRUG CENTER MANAGERS The next day, September 16, Abfalter dispatched two suc- cessive memos to the Drug Center managers, both of which were the products of consultations that day with Attorney Telfeian. The first memo (GC Exh. 47) went out in the fore- noon. Its subject was “Actions Taken by 588/IDCA,” and it stated as follows (capitalized emphasis in original): The purpose of this memo is to give you an update on the ac- tions taken by Local 588/IDCA. The facts are as follows: 1. Drug Clerks as of yesterday have no union. 2. IDCA officers no longer have any right to take company time for union business. 3. Grocery Clerks Local #588 members and agents have no right to interfere with Drug Center employees while on duty. 4. Grocery Clerks Local #588 Business Agents or Or- ganizers have no right to visit with our Drug Center em- ployees. Especially, they have no right of access to our break rooms or back room. 5. Raley’s has been approached by a group of Raley’s Drug employees who want to represent the Drug Center employees in their own union. a. That group has the right to demand recognition from Raley’s. b. We have to be convinced that they have a majority of the Drug Center employees before we recognize them. c. As you are presented with someone claiming that they have cards or a petition to present to you, IMMEDI- ATELY CALL YOUR SUPERVISOR OR DAN ABFALTER (opx 6054) for instructions on what to do.[128] Abfalter’s second memo (GC Exh. 127) was sent by fax in the early afternoon on September 16. Its subject was “Manager Action Steps,” and it stated as follows: Please take the following steps in your stores: 1. Post letter to employees from Jim Teel (they will receive one in their mail too.) 2. Post the Gil Eidam disclaimer letter advising that he is walking, abandoning the Clerks. 3. Advise your Drug Clerks what has happened, reas- sure them: a. The wages are as announced. 128 Abfalter testified that he could not recall having subsequently re- ceived any inquiries from Drug Center managers regarding what to do about cards or petitions they might receive, but that his intention, had they called him, was to instruct the managers to promptly transmit any such cards or petitions directly to his office, and not try themselves to “analyze” them. b. The retroactive check is being processed. c. The October increase will happen. Another digression is warranted at this point, to discuss and dispose of certain contentions made on brief by the prosecuting parties concerning the supposed “messages” conveyed by Ab- falter’s memos to the Drug Center managers (particularly the first one), and the overall significance of those supposed mes- sages to this case. Thus, both the General Counsel and Local 588 now argue, in substance, that the instructions in the first memo amounted to a “road map” for unlawful discrimination by the Drug Center managers against Local 588 and its em- ployee-allies. Moreover, relying on such an interpretation, the General Counsel further contends (even though the complaint contains no such allegation) that the first memo had an unlaw- fully coercive impact on the “employees” who are now pre- sumed to have read it, despite the fact that it was addressed only to the Drug Center managers. In fact, as discussed next, the General Counsel now clearly appears on brief to place overriding importance on obtaining a finding that “employees” not only read the first memo, but that Abfalter intended that they would read it. It bears noting imme- diately, however, that the evidence favoring any such finding is perilously slender. Thus, the General Counsel relies exclusively on the testimony of a single employee, pharmacy clerk and passionate Local 588 supporter Brenda Peterson, that she saw this memo posted in the breakroom at the Rancho Cordova Drug Center where she worked. (GC Br. at 117, fn. 117.) Counsel for the General Counsel speculates from Peterson’s claimed memory (which I would not credit129) that if the memo was posted in one Drug Center, “it was posted in others.” But if this speculation had any substance, it is reasonable to ask why the General Counsel did not invite any of the 17 other em- ployee-witnesses called during the Government’s case-in-chief to state their own recollections on the matter of the supposed “posting” of this memo. (Neither did the General Counsel seek to thus question any of the five Local 588 representatives— Loveall, Ciotti, Tulowitzky, Daly, and Glazer—called during the Government’s case-in-chief to describe their own visitations to various Drug Centers in the prerecognition period.) In any case, having settled the supposed point of fact (widespread public “posting” of Abfalter’s first memo) to her satisfaction, counsel for the General Counsel goes on to assert that the “em- ployees” who saw this memo could “draw the reasonable infer- ence that UDCEA organizers would be granted more favorable treatment than Local 588 and its supporters would be allowed.” Ibid. (See also GC Br. at 331, where the General Counsel, in support of claims that Abfalter’s first memo contained unlaw- fully “overbroad” restrictions on employee rights, now retrans- lates the memo as a communication intended for “employees’” 129 If a credibility resolution were necessary on this point, I would not credit Peterson. Not only was it doubtful that Peterson could genu- inely recall, 3 years after the fact, that she had seen this particular memo posted in her store, but, as I elaborate in part six, sec. III, Peter- son struck me overall as a biased witness, one seemingly willing to “recall” virtually anything that she sensed might aid the prosecution, and one whose claimed memories on certain other details of fact were clearly shown to have been either erroneous or wholly improbable. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456 eyes, i.e., as “telling employees that they could not talk to Lo- cal 588 representatives on company time . . . without any speci- fication as to working time.”) Thus, setting aside for the mo- ment the “reasonableness” of the “inference” that the General Counsel supposes that employee-readers would draw from Abalter’s first memo, it is at least apparent that the General Counsel is, in effect, seeking a finding that Raley’s, through that memo, committed an unfair labor practice by communicat- ing an unlawfully coercive and discriminatory message to “em- ployees.” The General Counsel’s conclusionary interpretations, echoed in summary terms in Local 588’s brief, show that the prosecut- ing parties have persuaded themselves that the first memo was intended by Abfalter, and would necessarily be so understood by any readers, as placing “restrictions” only on pro-Local 588 organizing activities, while giving the green light to comparable activities by UDCEA supporters. But a less partisan reader of the memo might be forgiven for failing to discern exactly how it was that the memo communicated the unlawful messages that the prosecuting parties claim to find so obvious. (And, in fact, counsel for the General Counsel is forced to concede, but only implicitly, that, perhaps such messages were not entirely obvi- ous, after all. Thus, at p. 114 of her brief, she charges Raley’s with adopting a “sneaky tactic indeed,” when, in the first memo, “Raley’s intentionally gave the impression, without having to state it explicitly, that UDCEA could do that which Local 588 could not. And then Raley’s could argue that it never imposed different restrictions on the two unions.”) Nevertheless, the General Counsel seeks certain “findings” relating to the first memo, as follows (Br. at 117; emphasis added): The Judge is urged to find that the stated Local 588 restric- tions, combined with the lack of restrictions on UDCEA, as well as Raley’s stated preference for UDCEA . . . provided a road map of corporate policy for the drug center Managers to follow: give UDCEA supporters full access to employees, in- cluding interrupting them while they were working, but deny the same rights to employee and non-employee supporters of Local 588.. . . The most reasonable inference that [the man- agers] could draw is that if they valued their jobs, they were going to make sure they did whatever they could to ensure that Raley’s preferred, employee in-house union won. In addition, counsel for the General Counsel has even per- suaded herself that when Abfalter stated in the first memo that the new union “has the right to demand recognition,” but that Raley’s had “to be convinced that they have a majority,” this “language” would “reasonably have been interpreted” by the Drug Center managers as “authorizing them to help the new union to obtain majority support and be recognized as quickly as possible.” Id. at 114. Again, I find such claims to be not merely overreaching in the particular procedural circumstances, but obtuse and far- fetched on their own merits. Focusing first on the claim that the memo contained unlawfully coercive and discriminatory “in- structions” to the managers that were conveyed even to “em- ployees” of Raley’s, there is the obvious threshold objection that no such claim was ever made in the complaint, and, there- fore, the claim was never fully or fairly-litigated.130 And even setting that objection aside, I think the General Counsel’s inter- pretations of the first memo as a “road map” for unlawful “as- sistance” to UDCEA and for discriminating against “employee and non-employee supporters of Local 588,” taken on their own merits, depend in the end more on partisan speculation than rational inference—indeed, that these interpretations have a disingenuous and even desperate quality. The prosecuting parties seek in their arguments to compare the first memo’s restrictions on the in-store access to drug clerks of Local 588’s nonemployee organizers with the absence of explicit restrictions on the in-store organizing activities of drug clerk employees of Raley’s. The argument is a nonstarter: The comparison suffers from the same defects discussed earlier (in part three, sec. I), in connection with the June 4, 1992 letter from Charles Collings to Local 588’s Jack Loveall, and from the same apples-to-kumquat problems elaborated elsewhere below (in part six, sec. V). As discussed in both of these por- tions of this decision, the simple legal fact of life is that Raley’s operated under no presumptive legal obligation whatsoever to give Local 588’s nonemployee organizers solicitory access to the employees inside its Drug Centers. Accordingly, it is both unremarkable and essentially irrelevant that Abfalter’s memo advised the local managers, consistent with these facts of life, that “Grocery Clerks Local #588 Business Agents or Organiz- ers have no right to visit with our Drug Center employees. Es- pecially, they have no right of access to our break rooms or back room.” I recognize, however, that here, unlike in Collings’ letter of June 4, 1992, to Local 588, supra, Abfalter’s memo to the man- agers also purported to place limits on the possible organizing activities of “Grocery Clerk Local #588 members.” And, in limited agreement with the prosecuting parties, I think this language is properly understood in context as a reference to a hypothetical class of grocery-clerk members of Local 588 who might seek to make in-store organizing contacts on behalf of Local 588 with employees in the Drug Centers. But nothing in the memos suggests that these employee-“members” of Local 588 would be subject to the same prohibitions on in-store ac- cess that were applicable to Local 588’s nonemployee organiz- ers. In fact, it is clear from the face of the memo that the only purported restriction on the organizing activities of such “Gro- cery Clerk members” was that they should not be allowed to “interfere with Drug Center employees while on duty.” In this latter regard, however, the prosecuting parties argue that the quoted restriction was unlawfully “overbroad” in its particular wording. But given the factual and legal contexts in which such arguments arise, and that the memo was written to and for 130 Raley’s has presciently anticipated on brief that the General Counsel would make some belated contention of illegality associated with the first Abfalter memo. Raley’s has properly pointed out that the legality of the memo (much less the contention that it was communi- cated to employees) was never put into issue by the complaint, and, consequently, that such an “issue” was never litigated. Raley’s has further requested that I order a reopening of the record for such litiga- tion in the event I were to determine that the belated allegation might have potential merit. For reasons further discussed below, I judge that no such reopening is necessary. RALEY’S 457 managers, and not intended as a comprehensive primer for managers on how and under what particular circumstances employees might exercise Section 7 rights, I see no need to engage in a hypertechnical analysis of the adequacy of Abfal- ter’s wording as an expression of such employee rights.131 Rather, I will regard the quoted statement in its most readily understandable light, simply as a reaffirmation to the managers of their own and Raley’s rights under Republic Aviation, supra, and progeny to limit in-store organizing activities by employees to “nonwork times and nonwork areas.” Neither do I accept the General Counsel’s additional claims that the memo, by failing to explicitly place limits on any organizing activities that might be conducted by the drug clerks themselves, would inevitably be taken by the Drug Center managers (or by the “employees” presumed to have also read it) as an “intentional” signal from headquarters that the managers should permit drug clerks orga- nizing for UDCEA to “interfere with Drug Center employees while on duty,” or (as the General Counsel now would have it, to “interrupt them while they were working”). Indeed, in my assessment, such claims involve the most attenuated and ulti- mately preposterous interpretive stretch of all. The simple facts remain: The memo never even mentioned “UDCEA.” And it was entirely silent as to what kinds of in- store organizing activities the drug clerks themselves might be allowed to engage in. It purported to bar only “Local #588 Business Agents or Organizers” (note the capitalizations, both referring to a Local 588 institutional job title) from in-store solicitory contacts with employees while they were working, and from any access whatsoever to breakrooms or backrooms. And insofar as the memo obliquely addressed what Local 588’s “grocery”-employee “members” could do, it stated only that they could not “interfere with drug clerks while on duty.” It is thus wholly unreasonable to infer from these spare facts that the memo was some kind of “sneaky” way for Raley’s to commu- nicate that drug clerks favoring UDCEA should be given greater latitude respecting in-store access to their fellow work- ers than should drug clerks favoring Local 588. Indeed, if, as urged by the General Counsel, the memo was intended as “road map” for such kinds of unlawful discrimination, it was a hope- lessly incompetent one. More fundamentally, the “road map” interpretation is itself a ludicrously speculative one, and such notions, which pervade the General Counsel’s arguments on brief, will not influence my analysis of the merits of any of the counts in the complaint yet to be addressed. 131 If, contrary to the credible evidence, the formulations used in Ab- falter’s first memo to the managers had, indeed, been intended to be presented by Raley’s to “employees” as expressions of their Sec. 7 rights and the limitations on them; and if, contrary to the credible evi- dence, “employees” actually read these memos; and if, contrary to fact, the complaint had alleged that the memo coerced employees by using an unlawfully “overbroad” formulation of the restrictions on their rights, then—and only then—would there be warrant for a more techni- cal legal analysis of the “message” conveyed in the memo. As it is, however, none of these conditions is satisfied. IV. WRIGHT’S PERSONAL ORGANIZING ACTIVITIES132 A. On September 15 In the early afternoon of September 15, following his con- versations with Germ and other employee-allies, and his addi- tional 4-minute conversation with Abfalter, Wright prepared and made about 30 copies (at a commercial copy center) of a petition document containing the following language, the lan- guage that was used on all the signed petition copies eventually received by Raley’s: By signing this petition I certify, upon penalty of perjury, that I am an employee of Raley’s Drug Center # ______ in _______, California, and am requesting that I be represented by the United Drug Center Employees Association (U.D.C.E.A.), in collective bargaining with our employer. Wright then believed that there were about 650–660 drug clerks employed in the California Drug Centers, including those in the northernmost Drug Center in Yreka, but not counting employees already hired to do get-ready work for the not-yet- open Drug Center in Elk Grove. For this numerical estimate, he relied on an employee list that had been shown to him previ- ously by Bill Cross, a pharmacist and then-IDCA shop steward in the Oroville Drug Center, who told Wright (and who con- firmed this himself as a witness) that he had received the list from Eidam.133 To allow for a comfortable margin of majority, Wright’s intention was to secure at least 350 signatures before demanding recognition for UDCEA. Once equipped with petition forms, Wright drove to his own Drug Center in Grass Valley and circulated one of the petitions among several drug clerks while they were working on the sales floor, witnessing at least the first three signatures. He then left the petition and additional blank copies with one of the drug clerks there, Kathy Ward, for further circulation. He also used a fax machine located in the “Grocery Manager’s” office (the same one he had previously used to fax some of his dis- ability-related paperwork) to transmit copies of the petition forms to several other stores, perhaps as many as six. He also spent about an hour, “on-and-off,” in the Drug Center’s back- room, using the OPX phone to make calls to about 20 of his contact people at other Drug Centers.134 (As I further discuss 132 Unless otherwise indicated, findings in this subsection are based chiefly on Wright’s uncontradicted and seemingly candid testimony, given over the course of several days of adverse examination during the presentation of the General Counsel’s case-in-chief. 133 As noted previously, during IDCA’s tenure, Eidam customarily received from Raley’s on a periodically updated basis a list containing the names and addresses of all bargaining unit employees, and Eidam admittedly used—and relied—on this list for the various mass mailings he sent to the drug clerks during his tenure—including, presumably, for his September 14 letter announcing the disclaimer and the opportunity it presented for the drug clerks to select Local 588 as their new bargain- ing agent. 134 Relying on Benicia drug clerk Tina Baker’s descriptions of the OPX system in the Benicia Drug Center, I find that the OPX phones could be used not only to call between stores throughout the chain, but also to dial other, “outside” numbers within the 916 calling code area (covering the greater Sacramento area, where many of the Raley’s stores were located and where many of the drug clerks also resided)— DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458 below, there is no distinct evidence that any managers at Grass Valley were then aware that Wright was using the Grocery Manager’s fax machine or the OPX line in the backroom; how- ever, it is clear that some such information came to the atten- tion of Senior Assistant Manager Mowery no more than 3 days later, and soon resulted in the issuance to Wright of two, suc- cessive warnings against thus misusing Raley’s telephone and fax “equipment” for his organizing purposes.) In his OPX calls, Wright told the contact people that he was sending petition forms to their stores by fax, and in some of these calls he was told that a petition copy had already arrived at the other store. He told his allies that as the petitions became filled with signa- tures from drug clerks in their respective stores, they should deliver the signed petitions to their respective Drug Center managers, for forwarding by fax to Raley’s headquarters. He also asked them to call him with updates as to the number of signers. Finally, before leaving the Grass Valley Drug Center, Wright separately solicited petition signatures from two second assistant managers, Lori Janatsch (on the sales floor) and Caren Skipper (in the backroom receiving area). He told them that second assistants had been included under the UFCW contract when he had worked for Thrifty Drugs in Grass Valley. Janatsch told Wright that she didn’t believe that second assis- tants of Raley’s could be in a union, and indicated in some manner that signing the petition wouldn’t be good for her ca- reer in any event. Skipper likewise declined to sign the petition, but wished Wright well in his further efforts. (Wright also re- called vaguely that he solicited signatures from some other second assistants at other stores in the following days; however, there is no indication of record that any second assistant ever signed, much less circulated, any UDCEA petitions.) After leaving Grass Valley, Wright drove to another Drug Center in nearby Yuba City, and spent “probably less than an hour” inside that store. He circulated a petition among the drug clerks there (exactly where and when is unclear from his testi- mony), and witnessed at least the first five signatures on that document. He also used an OPX phone in the pharmacy to call several additional contact persons at other Drug Centers, and used the pharmacy fax machine to transmit up to six more peti- tion forms to them. (Again, there is no distinct evidence that any Yuba City manager was aware of these actions. And even though I assume from the circumstances that the [unidentified] pharmacist on duty at Yuba City at the time was aware that Wright was using the pharmacy fax and phone—and was probably sympathetic to Wright’s organizing efforts—I cannot assume that the pharmacist, being himself or herself a member of the still-viable pharmacist unit represented by IDCA, would have reported Wright’s activities to a Drug Center manager.) After completing these activities, Wright left the petition with drug clerk Alexis Jeremiah for further circulation. all apparently without such calls being separately itemized on company telephone billing records as either long-distance calls or as calls to an “outside,” or “private” number. I assume that the OPX phone at Grass Valley, which is covered by a different area code, could be similarly used. B. In the Period September 16–23 Wright personally visited at least 6 more Drug Centers in the period September 16–18 (Auburn, Folsom, Granite Bay, El Dorado Hills, West Sacramento, and Benicia) and two more on September 21 (Windsor and Rohnert Park). In an uncertain number of cases and locations, he admittedly solicited signa- tures from drug clerks as they were working on the sales floor. In an equally uncertain number of other cases, he solicited sig- natures from drug clerks taking their breaks in the backroom. In other cases, equally uncertain, he simply left UDCEA petition forms in the hands of local employee-allies. (At Benicia, as is described further in part six, he spent the better part of 2 hours in—or immediately adjacent to—an upstairs office used by drug clerk Tina Baker for certain “bookkeeping” work, where he met with a succession of drug clerks, made a pitch for UDCEA, and obtained 10 petition signatures from those with whom he met.) Although he witnessed many of the petition signatures during these various visits, additional drug clerks signed the petitions after he had left them and additional copies in the custody of local employee-allies for further circulation and eventual transmission to Abfalter’s office in Sacramento. Wright also admittedly placed several additional and rela- tively brief phone calls to Abfalter’s office during this period (either from his parents’ home phone or from a public tele- phone), in each case to inquire whether certain petitions had been received at headquarters.135 V. HEADQUARTERS ACTIVITIES AS UDCEA PETITIONS ARRIVED Throughout the ensuing days preceding the recognition, a clerical team at company headquarters, working under Abfal- ter’s direction and headed by Abfalter’s secretary and assistant, Linda Schrimsher, was engaged in an ongoing review and “validation” of UDCEA petitions as they variously arrived via fax, mail, or hand-delivery. The members of the team verified first that purported employee-signers were, indeed, currently employed as drug clerks (and in this process, incidentally, they rejected as not properly countable a relative handful of signa- tures from pharmacists). Members of the clerical team also sought to “authenticate” petition signatures by comparing them with other specimens of employee signatures maintained in company records (W-4 tax withholding forms in all or nearly all cases), and they kept running tallies of the numbers of peti- 135 The General Counsel subpoenaed Wright’s parents’ telephone billing records. As the parties stipulated, the billing records showed that Wright called Abfalter’s office from his parents’ home on September 16 and was on the line for 12 minutes. Wright stated that he was “on hold” for much of this time, but that he eventually spoke directly with Abfalter, during which conversation he told Abfalter that he was get- ting lots of support for his UDCEA petition efforts and learned from Abfalter that no petition copies had yet been faxed to headquarters. The billing records also indicate that Wright initiated two, additional 2- minute calls to Abfalter’s office on the afternoon of September 20, and another 2-minute call on the morning of September 22. Wright recalled somewhat dimly that in the latter three calls he spoke either with Abfal- ter’s secretary, Linda Schrimsher, or with another secretary in the of- fice, and that in each case the conversation was limited to ascertaining whether or not certain signed petitions had been received at headquar- ters. RALEY’S 459 tion-signers whose signatures could be thus authenticated. They also eventually compared these tallies to the overall head count of drug clerks in the California Drug Centers, a total number that was itself generated by a “systems query,” i.e., a particu- larly-coded computer search of the Company’s computerized payroll and employee status database. Some of the signed petition copies received at headquarters contained facial indications from their multiple fax headers that they had been previously faxed (in blank form) between two or more Drug Centers before being signed in the Drug Center from which they were transmitted to Abfalter. Many of the signed petition-copies received at headquarters also contained facial indications that they had been faxed to headquarters. At least one of these, however (the four-signature petition from the Rancho Cordova store, GC Exh. 54, Bates 771) was faxed by an employee to headquarters via a commercial fax service. In the other cases, the faxing was done through a store machine, either by a Drug Center manager or (in upwards of four proven cases) by a drug clerk.136 A related discussion is again warranted here: The General Counsel treats Raley’s supposed “condonation” of the use of its fax machines for the purpose of transmitting the blank petition- copies between stores as “unlawful assistance” to UDCEA, and maintains further that Raley’s was equally guilty of such unlawful assistance when it “allowed” either its Drug Center managers or its drug clerks to use the store fax machines to transmit signed petition copies to Sacramento headquarters.137 I regard the former category of claims, resting on suppositions that Raley’s “condoned” Wright’s use of fax machines to get blank petition forms into the hands of his contact people, as seriously flawed—primarily because the evidence shows, as discussed below, that Wright was formally disciplined for using both store phones and fax machines as part of his initial orga- nizing activities, thereby significantly blunting any claim that Grass Valley managers (or any other managers) “condoned” any such activities that may have come to their attention.138 136 Wright admittedly used the Grass Valley store fax machine to transmit a petition to headquarters. Two of his employee-allies (Tina Baker at Benicia, and Linda Goodwin at Redding) admittedly used pharmacy fax machines at their respective stores to transmit signed petitions to headquarters. Moreover, as noted in part six, discussing events at the Rohnert Park Drug Center, it circumstantially appears that pharmacy clerk Carol Evans transmitted a four-signature petition from her pharmacy fax machine. 137 Thus, the General Counsel asserts (Br. at 95 fn. 89), that “Raley’s provided unlawful assistance to UDCEA by allowing its fax machines . . . to be used to submit the petitions to Abfalter regardless of whether it was the drug clerks or the drug center Managers who faxed in the petitions.” 138 Rohnert Park drug clerk Cindy Shepard testified that, sometime during the prerecognition period, she received a telephone call at work from Ed Wright, and that she later reported this to Drug Center Man- ager Rob Kiehlemeier, and asked him why Wright was allowed to solicit employees on their worktime whereas representatives of Local 588 were not. (She says that Kiehlemeir replied with words to the effect that Wright was “affiliated with Raley’s.”) But Kiehlmeier more credi- bly and convincingly denied having had any such discussion with Shepard/Albrecht. Accordingly, I do not reach the question whether And I regard the latter category of claims (respecting the fax transmission of signed petitions to headquarters) as equally flawed, but for a different reason—because such claims arbi- trarily assume, a priori, that Raley’s somehow had developed a pre-existing “policy” banning the use of fax machines for transmission to headquarters of employee representation peti- tions, even though the situation was plainly unprecedented, and thus not likely to have been contemplated by any preexisting policies generally limiting the use of the fax machines to “Raley’s business” only. Relatedly, I think it is arbitrary for the General Counsel to presume that employee-petitions addressed to Raley’s somehow fell outside the category of “Raley’s busi- ness.” These were “petitions,” after all, and, as such, they were clearly intended to be addressed to officials of Raley’s who had power to act on them, i.e., to corporate executives at headquar- ters. Thus, the signed petitions were, in a very real sense, prop- erly the “business” of Raley’s, and, considered as such, it did not obviously violate “company policy” for employees to use store fax machines to transmit them to headquarters. In any case, I regard it as particularly unlikely that Raley’s policy against using fax machines for “personal” business was in- tended to reach so far as to bar even the Drug Center managers themselves from using their store fax machines to transmit the signed petitions to headquarters. Again, the petitions weren’t addressed to the local managers, and the local managers had no power to act on them. Thus, it strikes me as unremarkable that the managers would use their fax machines to pass the signed petitions on to the company officials empowered to respond to them. And it involves an especially unwarranted inferential leap, in my view, to assume that the Drug Center managers were in any way acting in “violation of company policy” when they passed the petitions on to Sacramento headquarters via their respective store fax machines. VI. THE SEPTEMBER 18 AND 21 WARNINGS TO WRIGHT; DISPOSITION OF RELATED CONTENTIONS A. Limited Evidence of Management Knowledge of Wright’s Prewarning Activities Second Assistant Managers Janatsch and Skipper at Grass Valley were clearly aware from their own personal contacts with Wright that Wright was soliciting petition signatures in the Grass Valley store on September 15. However, as I have previ- ously noted, there is no affirmative evidence that Janatsch or Skipper passed on such knowledge to upper-level managers at Grass Valley; much less is there any affirmative evidence that any such knowledge ever percolated up to corporate officials in Sacramento. Nor can I find on this record that any managers at Grass Valley were aware, at the time of Wright’s September 15 visit, that Wright was using the OPX phone in the backroom, or the fax machine in the grocery manager’s office. Moreover, there is no distinct evidence that any of Wright’s in-store activi- ties at Yuba City on September 15 were known to any store managers, and the same is generally true of Wright’s visits to other Drug Centers in the period September 16–21. (However, his September 18 visit to the Benicia store, detailed in part six, Kiehlmeier’s supposed remarks would suggest a “condonation” by Kiehlmeier of Wright’s calling Shepard/Albrecht at her workplace. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460 constitutes a notable exception to this generalization, because Mike Wallis, one of the second assistants at Benicia, was clearly shown to have been aware of Wright’s presence on that occasion.) Wright testified broadly that he conducted his various in- store organizing activities with enough discretion to avoid the notice of any managers. Counsel for the General Counsel and counsel for Local 588 both greet this testimony with enormous skepticism, and they urge that I find instead that management knowledge of Wright’s in-store activities was “widespread” throughout the Drug Center chain—indeed, that detailed knowledge of all of Wright’s in-store activities “pervad[ed]” all levels of company management, including the corporate head- quarters level. For reasons discussed below, I am far less skep- tical of Wright’s testimony than are the prosecuting parties. And, more important, considering the General Counsel’s ulti- mate burden of persuasion on the point, I do not regard it as probable on this record that the managers at each of the Drug Centers visited by Wright were aware of Wright’s activities; still less do I regard it as probable on this record that any such knowledge pervaded all levels of company management. First, contrary to the General Counsel’s urgings, Wright’s “off-duty” and “out-of-uniform” presence in the Grass Valley Drug Center on September 15 (or thereafter) was unremarkable in itself, and thus not likely to have aroused any special curios- ity or scrutiny on the part of any manager, even if, arguendo, the manager had noticed Wright’s presence. (Wright had been making such off-duty visits to Grass Valley for more than 5 months, for a variety of purposes—some union related, others merely social, others relating solely to the processing of his disability paperwork.) Second, when Wright made visits to other Drug Centers (where he was never shown to have been known to any managers) his mere “presence” in those stores could not be expected to have aroused any management curios- ity. Indeed, in those instances, the fact that he was “out-of- uniform” (i.e., wearing street clothes) would make it likely that any manager who might have noticed his presence would sim- ply assume that he was a member of the shopping public. (By contrast, in the several cases of in-store confrontations between Drug Center managers and Local 588’s representatives, as de- scribed in part six, the agents typically wore “UFCW 588” jackets or other garb bearing such logos, plus nameplates iden- tifying them as Local 588 representatives.) Third, the record provides no basis for assuming that managers on duty on any given shift were expected to be “aware” of the comings and goings and other activities of each entrant into their stores; much less would the record support an assumption that manag- ers were expected to routinely “patrol” the sales floors and shopping aisles to make sure that each entrant behaved only in a manner consistent with the activities of a shopper. On the contrary, the record affirmatively indicates that managers spent substantial amounts of time in their offices, handling paperwork and taking or receiving telephone calls, and additional time on the sales floor simply “facing” shelves and performing other routine work tasks. Moreover, it is clear that even if a manager were on the sales floor, there was no single vantage on the floor from which the manager could see all other areas of the floor. The parallel arrays of product shelves separating each shopping aisle effectively precluded any such panoramic view. To be sure, the record does not wholly preclude the possibil- ity that one or more managers at each of the stores visited by Wright was contemporaneously aware of all of his in-store activities, and that each such manager promptly transmitted such knowledge up the chain of command. But neither does the record preponderate in favor of such findings. Put in different terms, a finding of widespread and pervasive management knowledge of Wright’s in-store organizing activities could only stem from an inference (a presumption, really), which enjoys no distinct or substantial support in the record.139 Therefore, I judge that the General Counsel has failed to sustain the prose- cution’s burden of persuasion on the point at issue. See, e.g., Stainless Steel Products, 157 NLRB 232, 261 (1966). B. The Warning Incidents Although management knowledge of Wright’s in-store ac- tivities was not shown to be widespread or pervasive, there is no doubt that managers at Grass Valley eventually became aware of some of these activities. A memo that found its way into Wright’s personnel file (attachment to R. Exh. 20) written by Joe Mowery, the senior assistant manager at Grass Valley, clearly shows that, by the evening of Saturday, September 18, Mowery had received reports (or “rumors,” in Mowery’s words) that Wright had been using store “equipment” as part of his UDCEA organizing. (Mowery’s memo further indicates, however, that the “rumors” were not transmitted to him by any managers, but by “other clerks.”) As a result, Mowery called Wright at home on the evening of September 18 and directly 139 The General Counsel “urges” that I “find that Raley’s drug center management in the various drug centers Wright visited were aware that he was soliciting the drug clerks while they were working and using Raley’s telephones and fax machines to organize for UDCEA.” And in this regard, the General Counsel invokes the fact that “Respondents did not call any managers to testify that they were unaware that Wright was soliciting employees and using Raley’s telephones or fax machines in their stores.” GC Br. 32; emphasis added. This argument, relying at bottom on exotic understandings of the adverse inference rule, repre- sents only one of many instances in which the General Counsel has implicitly sought to shift to the “Respondents” the supposed “burden” of proving the nonexistence of a factual element—in this case wide- spread management knowledge of Wright’s in-store activities—as to which the General Counsel bore the ultimate burden of persuasion. As I see it, however, a “burden” of coming forward to prove the nonexis- tence of the widespread knowledge element could only be said to have “shifted” to Raley’s (but in no event to UWRU) if the General Counsel had otherwise made a record independently warranting an inference of such widespread knowledge. For the reasons already noted, no such showing was made by the General Counsel. Accordingly, the fact that Raley’s did not call a parade of managers to deny something that the General Counsel failed in the first instance to establish by competent proof cannot itself be relied on to supply the element missing from the General Counsel’s case, i.e., as affirmative “evidence” that the General Counsel’s unproved suppositions were correct. Indeed, if company “knowledge” of an employee’s union activities could be predicated simply on the Company’s failure to call witnesses to deny such knowl- edge, the General Counsel’s typical litigation “burden” in an unfair labor practice case requiring proof of such knowledge would be re- duced to a virtually weightless load. RALEY’S 461 confronted him with these “rumors.” Wright then admitted that he had used the store phone and fax machine for organizing purposes. Mowery then warned Wright (consistent with the text of his memo, supra) that “our equipment was for Raley’s busi- ness only,” that Wright's “unauthorized use” of such “equip- ment” was “against company policy,” and that “continued vio- lation could result in a written warning and further progressive discipline.”140 On the following Tuesday, September 21, despite Mowery’s “verbal” warning, Wright came to the Grass Valley Drug Cen- ter again, and eventually went into the (then-vacant) office shared by the Drug Center management team. He used a tele- phone in that office to call one or more of his contact people. However, Drug Center Manager Jack Lane soon came into the office, and caught Wright “red-handed” (Wright’s words). Wright quickly concluded the call, whereupon Lane “laugh- ingly” asked Wright if his call was for “personal” or “business purposes.”141 Wright professed that the call was for “business,” but Lane clearly did not believe him, for he instructed Wright to leave the office. Wright then went down to the sales floor, and about 10 minutes later, was recalled into Lane’s office, where Lane presented him with a formal, written “Warning Notice.” This notice was signed by both Lane and Mowery, and attached to it was Mowery’s handwritten memo of his Septem- ber 18 verbal remonstration with Wright (in which he had told Wright, inter alia, that “continued violation could result in a written warning and further progressive discipline”). The warn- ing notice cited Wright for a “Failure to Follow Company Pol- icy,” for “continued use of Raley’s telephone OPX line to con- duct personal business.” In further narrative remarks in the warning notice, Lane also wrote as follows (capitalizations appear in the original, handwritten text): Since Ed is currently on leave of absence, a suspension from work (in the event of further violation) would not be ap- plicable. HOWEVER, Ed can expect to receive additional discipline if this problem recurs—UP TO AND INCLUDING THE POSSIBILITY OF TERMINATION. In an interesting epilogue to these events, Wright filed an un- fair labor practice charge against Raley’s, averring that Raley’s 140 Counsel for the General Counsel took pains, during cross- examination of Wright on April 21, 1997, to obtain Wright’s express admission that Mowery’s memo of the September 18 warning captured the same warnings and instructions uttered aloud by Mowery to Wright during their telephone conversation. 141 On brief, counsel for the General Counsel repeatedly stresses Wright’s testimony that Lane “laughed” when he thus questioned Wright. Her obvious purpose is to suggest that Lane found Wright’s “violation of company policy” to be merely amusing. Apparently, the General Counsel has never heard of a rhetorical question, much less of a rhetorical question accompanied by a skeptical laugh. Given the con- text, I regard both the question—and the laugh accompanying it—as examples of the latter category, i.e., as tantamount to Lane’s saying to Wright, “Don’t even try to tell me that this is a ‘Raley’s-business’ call.” And the best evidence that Lane so intended his “laughing question” is the evidence of what Lane did immediately thereafter. Thus, as further described next in main text, Lane kicked Wright out of the office, then, 10 minutes later, summoned him back and gave him a severely- couched written warning notice. had unlawfully discriminated against him for his union-related use of company “equipment” under circumstances where Raley’s had more generally tolerated his own and other em- ployees’ use of such equipment for various “personal” pur- poses. However, after investigating this charge, the Regional Director dismissed it as lacking in merit. On brief, UWRU’s counsel argues (with undisguised bitterness and with charges of improper prosecutorial motive) that there was an inherent in- consistency between the Regional Director’s dismissal of Wright’s charge that he was unlawfully discriminated against by the device of a written warning containing a discharge threat for using a (fax) medium for union organizing purposes that was commonly used by other employees for nonbusiness pur- poses, and the Regional Director’s issuance of complaint on IDCA/Eidam’s charge that Eidam was unlawfully discrimi- nated against by the device of a “verbal warning” for using a (phone) medium for union-administration purposes that em- ployees commonly used for nonbusiness purposes. The point is noted; but because the General Counsel possesses essentially unreviewable discretion when it comes to issuing or not issuing a complaint on a charge, the question is beyond my jurisdiction to judge. C. Supplemental Findings and Discussion As stated earlier, it is now undisputed that employees throughout the chain had often “violated” the Company’s “offi- cial” policy purporting to limit the “personal” use of in-store phones to “emergencies” only, and that, in practice, Drug Cen- ter managers did not seek to prevent nonemergency “personal” calls, per se, but only in perceived cases of “abuse,” as defined by each manager. The record also contains unrebutted evidence showing that drug clerks would likewise use the store fax ma- chines to transmit jokes, cartoons, recipes and miscellaneous other kinds of papers, and “personal” messages to their fellow employees at other Drug Centers, all in nominal “violation” of the Company’s official policy limiting the use of store fax ma- chines to “Raley’s business” only. There is also much evidence, including but not limited to the uncontradicted testimony of Raley’s Drug District Supervisor Flint Pendergraft, that the Company’s “fax” policy was typically “enforced,” if at all, only through occasional “reminders” periodically inserted into the company’s newsletter,142 rather than by trying to track down and confront individual employees suspected of wrongful “per- sonal” use of the fax system. Indeed, there is no evidence that agents of Raley’s at either the store or corporate level had ever before sought to “investigate” an apparent “personal” use of a store fax machine to ascertain the identity of the wrongful user. Neither is there any evidence that any particular employee found in the past to have “violated” the fax policy had ever been “disciplined” for the wrongful use, much less by measures harsher than those reflected in Wright’s warning notice. In fact, Pendergraft’s testimony allows me to find affirmatively that the issuance of such a formal, written warning of severe discipline or discharge to come for any future violation of the Company’s rules respecting phone and fax use was wholly unprece- dented—indeed, that no one had ever before received any kind 142 See GC Exh. 45; R. Exh. 51. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 462 of “written warning” for violating the policies respecting phone or fax use. Wright testified that, after receiving the September 21 Writ- ten Warning, he did not further use any store phones or fax machines to make contacts with or transmit documents to his employee-allies elsewhere. There is no contrary evidence. However, he admittedly used the fax machine in the Grass Val- ley grocery manager’s office on the afternoon of September 23, to transmit a demand for recognition to Abfalter’s office. Again, the General Counsel sees the fax transmission of the demand letter as an unlawfully “condoned violation” by Wright of the company “policy” conveyed to him in Mowery’s and Lane’s recent admonitions and disciplinary warnings. Again, I think the General Counsel has wrongly supposed, a priori, that a union’s demand-for-recognition letter, addressed to the re- sponsible corporate official, necessarily fell outside the cate- gory of “Raley’s business,” and, therefore, that it “violated company policy” for Wright to have used a store fax to transmit the UDCEA demand. In any case, I wonder how the General Counsel would rationalize her theory of unlawful “condona- tion” of Wright’s use of the store fax to transmit the demand letter to Abfalter with another fact of record that strikes me as clearly involving a parallel example that is plainly inconvenient to the prosecution theory—that Raley’s likewise “condoned” Eidam’s use of a store fax on September 14, to instantly trans- mit a copy to Abfalter of his disclaimer letter on IDCA’s be- half. With the foregoing findings and discussions behind me, it is now appropriate to address additional arguments made by the General Counsel on brief, primarily in passages at pages 136– 138 (reiterated in similar terms at pp. 343–347), all of which are centrally linked to the matter of the warnings received by Wright on September 18 and 21. Counsel for the General Counsel predictably dismisses these warnings as “just a sham,” and not a “serious attempt to discipline Wright.” Rather, she opines that “Raley’s just was covering its tracks when Wright’s conduct got out of hand, so that it would not appear that Raley’s was assisting Wright.”143 It is not remarkable in itself that the General Counsel would give voice to such suspicions; her lengthy brief is heavily larded throughout with comparable examples. But what I do find surprising is the particular reason- ing advanced by the General Counsel in aid of these particular suspicions, reasoning which implicitly seeks to answer a series of inevitable questions, as follows: First: What, exactly, should “Raley’s” (i.e., Grass Valley Managers Lane and Mowery, the only agents of Raley’s shown to have been aware of Wright’s misuse of Raley’s “equip- ment”) have done to avoid the General Counsel’s suspicions, and to demonstrate that “Raley’s” was, indeed, “serious” in these warnings? This is how the General Counsel answers that question on brief: First, she posits broadly that “Raley’s obliga- tion in a rival-union situation was to stop Wright from using Raley’s telephones and fax machines in violation of company policy to organize for one of the two competing unions.” Nota- 143 Local 588 makes nearly identical summary claims at p. 18 fn. 15. of its brief, but without addressing any of the questions posed and dis- cussed below. bly lacking from the General Counsel’s brief, however, is any citation of authority for this assertion, and I have discovered no case whose holding might be retranslated in any such “obliga- tion” terms. Nevertheless, for these purposes, I will assume, without deciding, that the General Counsel is correct at least insofar as she may be asserting that once Grass Valley manag- ers learned that Wright was using the phones and fax machines in aid of his organizing drive, they—and “Raley’s” itself— could reasonably be charged with condoning, or even “assist- ing” that activity unless they took steps to “stop” it. But even if so, isn’t that exactly what the warnings—and es- pecially the threat of discharge in the written warning—were facially aimed at accomplishing? Not the way the General Counsel sees it, apparently, for she goes on to argue that Raley’s had an obligation to impose a more severe form of “discipline” to “stop” Wright. What kind of more severe “dis- cipline,” exactly? The General Counsel has a ready answer for this question, too, as follows (emphasis added): “The only meaningful way for Raley’s to have ensured that Wright would cease using the telephones and fax machines was for Raley’s to have told him that it would not consider any signatures he ob- tained in violation of company policy.” And “[t]his,” so the General Counsel reasons, “would have forced Wright to change his tactics.” Consequently, she concludes, “Raley’s failure to take this actions [sic], demonstrates that the verbal and written warning it issued to Wright . . . was a meaningless slap on the wrist.” I see: The General Counsel construes the National Labor Re- lations Act as conferring on employers not only a right, but an affirmative “obligation” to “discipline” an employee’s “viola- tion of company policy” in the course of otherwise protected union organizing activities by “refusing to consider” any evi- dence of union support that the rule-offending employee has been able to secure, and any “discipline” short of that must necessarily be treated as a “sham,” or a “meaningless slap on the wrist.” Again, however, the General Counsel fails to cite any authority for these legal pronunciamentos (neither in the quoted passages nor elsewhere on brief), and I have not inde- pendently discovered any case holding that might be retrans- lated in such terms. In fact, it seems clear that here, as in sev- eral other related instances, the General Counsel has simply made up these supposed “rules” from whole cloth to suit the prosecution’s current litigation position, pretending all the while that they are somewhere engraved in the annals of law. Moreover, in this particular instance, I fear that the positions so zealously advanced by the General Counsel have been seized upon with little regard for their implications, and could easily be seized upon in turn by an employer in a future case to frus- trate the vindication of important employee rights and related policies under the Act. Take a Gissell case, for one example, where an employer who commits serious unfair labor practices during an organizing campaign (“rival union” or otherwise) may be ordered by the Board to remedy those violations by recognizing and bargaining with the union that was shown to have secured authorization card signatures from a majority of the employees. It’s not hard to envision that an employer- respondent in such a case might invoke the “obligation” trum- peted by the General Counsel to escape an otherwise appropri- RALEY’S 463 ate bargaining order, simply because some or all of the card signatures were shown to have been secured by employees whose organizing activities included conduct “in violation of company policy.” Take another example, where an employer may be disposed to grant voluntary recognition to a union based on a majority showing. In Smith’s Food & Drug Centers, 320 NLRB 844 (1996), the Board noted that encouraging vol- untary recognitions, even in “rival-union,” cases was one of the “fundamental objectives” of the Act (id. at 845), and thus it “modified” the prior rule under Rollins Transportation System, 296 NLRB 793 (1989), by holding that, “in rival union initial organizing situations, a voluntary and good-faith recognition of a union by the employer based on an unassisted and uncoerced showing of interest from a majority of unit employees will bar a petition by a competing union, unless the petitioner demon- strates a 30-percent showing of interest that predates the recog- nition.” Id. at 846.144 Clearly, however, in the light of the Gen- eral Counsel’s declared position herein, an employer who might otherwise be disposed to grant voluntary recognition to one of two competing unions based on the recognized union’s having objectively demonstrated its majority status, might choose not to act on that disposition, for fear of being accused by the Gen- eral Counsel of unlawful “assistance” if it turned out that the majority showing was “tainted” by employee organizational activity conducted “in violation of company policy.” Indeed, I think the General Counsel’s arguments here reflect both an overly-expansive view of an employer’s disciplinary “rights” and “obligations” in a union organizing situation (“rival-union” or otherwise), and a correspondingly crabbed interpretation of the rights of employees to enjoy the fruits of their successful organizing activities even when some of those activities may have been conducted “in violation of company policy.” Accord- ingly, I am strongly disinclined to embrace the General Coun- sel’s sweeping and plainly result-driven arguments. And in any case I remain wholly unpersuaded by such arguments that the warnings issued to Wright were less than “seriously” intended. Nor does the General Counsel rely on such arguments simply to support the claim that the warnings issued to Wright were “sham” in nature. In succeeding passages in the same section of her brief, she invokes similar arguments as the basis for ulti- mate claims that are at least as dubious. Thus, she asserts that “Raley’s unlawfully assisted UDCEA by recognizing UDCEA when Raley’s knowingly condoned the solicitation by UDCEA supporters of names [i.e., petition signatures] in violation of company policy.” But this assertion, flawed from the start by the unsupported assumption that Raley’s “knowingly con- doned” such “violations of company policy,” invites an even more fundamental question: Why, exactly, does it become an independent act of “unlawful assistance” for an employer to recognize a union whose majority showing may have been secured, in part, by employee activities conducted in violation of a company rule? The answer, according to the General Counsel in another overheated and essentially circular passage, 144 And see then-Chairman Gould’s concurring opinion (id. at 846– 47), emphasizing the importance of voluntary recognitions under fed- eral labor policy as his rationale for urging that the Rollins rule be “overruled entirely,” and not simply “modified.” is that “those names were tainted,” and, therefore, “Raley’s relied on what might be called the ‘fruits of the poisonous tree.’” Tainted? Poisonous? Just because Wright used store phones at Grass Valley and Yuba City to get in touch with some of his contact people at other stores, and used fax ma- chines at those stores as the medium for getting some of the petition forms into the hands of his employee-allies? That’s right, says the General Counsel, who declares in a final passage as follows (p. 138; emphasis added): To avoid violating the law once Raley’s became aware that Wright and the employees were using its telephones and fax machines in violation of company policy, Raley’s should have refused to recognize UDCEA based on those names [i.e., sig- natures on petitions]. . . . It’s [sic] failure to do so provided an unfair advantage to UDCEA over Local 588. Again, however, the General Counsel has no where cited any authority whatsoever for this declaration, and, again, I remain deeply skeptical of it. It’s one thing to assert that an employer violates the Act when it “disparately enforces” its rules so as to permit an employer-favored faction of employees to use com- pany premises and facilities to advance their representational desires, while at the same time denying similar use of its prem- ises and facilities to an employer-disfavored faction of employ- ees with different representational desires. (I take no exception to that well-settled proposition.145 And whether or not Raley’s was guilty of any such unlawfully discriminatory practices vis- à-vis pro-UDCEA and pro-Local 588 employee factions re- mains an important question, to be addressed in the light of facts yet to be narrated.) However, it’s quite another thing to sweepingly assert, as the General Counsel does here, that the “law” requires (or even permits) an employer to “refuse to rec- ognize” a union simply because the union’s evidence of major- ity support may have been secured in part by activities con- ducted “in violation of company policy.” The latter assertion presumes that manifestations of employee support for a union in such circumstances are somehow inauthentic or unreliable. But this is a presumption that enjoys no support whatsoever in Board law, so far as I can discern. It is also a presumption that blinds itself to a noticeable fact of life in union organizing drives: Employees who genuinely want a union’s representa- tion, even when counseled by the union against such activities, will often ignore the Company’s “official” rules by using what- ever practical means or opportunities at their disposal to get authorization cards or prounion materials into their fellow workers’ hands, recognizing all the while that they may be appropriately disciplined if their “violations” are discovered by their employer, but never suspecting that their “violations” would themselves be treated as “tainting” the fruits of their organizing activities. Thus, it is the latter proposition—that the “signatures were tainted”—that I regard as not merely a legal orphan, but worse, as another unfortunately short-sighted and even mischievous declaration by a representative of the Office of the General Counsel. Accordingly, my subsequent analyses will not be influenced by any such notions. 145 See, e.g., A. O. Smith Automotive Products Co., 315 NLRB 994, 1011 (1994), and authorities cited. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 464 VII. THE SEPTEMBER 23 RECOGNITION AND ITS ANNOUNCEMENT TO EMPLOYEES By the late afternoon of September 23, Wright believed (ac- curately, as it turns out), based on updates from his contact people, that more than 350 drug clerks had signed UDCEA petitions that had been transmitted to Abfalter’s office—more than enough, so he believed (accurately), to amount to a major- ity of the drug clerks in all of the California stores, including Yreka, where 8 of the 9 drug clerks employed there (as I find in appendix A) had signed a UDCEA petition. He then drove to the Grass Valley store, where, at 4:55 p.m., he used the fax machine in the grocery manager’s office to transmit the follow- ing letter to Abfalter: This letter is to inform you that the United Drug Cen- ter Employees Association represents a majority of the Drug Center employees, excluding pharmacists, in all the California stores. The United Drug Center Employees Association hereby demands recognition in all of Raley’s California stores as those employees’ collective bargaining repre- sentative. We have previously provided you with evidence of such majority status. By then, or soon thereafter, Abfalter’s clerical team had deter- mined that the petitions already received contained enough valid signatures from drug clerks to constitute a majority in the statewide unit. (Additional petitions containing some signatures dated on or before September 23 were received at headquarters on the following day, but Abfalter’s group did not have these before them when, as described next, Abfalter promptly dis- patched a recognition letter to Wright.) Abfalter cautiously allowed from the witness stand that he was “pleased” with the showing of majority support for UDCEA received by the afternoon of September 23. And he obviously treated a reply to the demand for recognition as a matter of high priority. Thus, he asked Schrimsher to stay on past the normal, 5:30 p.m. end of her workday to supervise the final preparation of a letter conferring recognition. Then, when the letter was completed and signed by Abfalter at about 6 p.m., Schrimscher hand-carried it to a nearby Federal Express depot, where it was sealed and dispatched for next-day hand-delivery to Wright. The recognition letter said this: We have in our possession evidence that a majority of the in- dividuals working as Drug Clerks in our Northern California Drug Centers wish to be represented, for purposes of collec- tive bargaining, by your labor organization, the United Drug Center Employees Association. Based on that evidence, Raley’s hereby recognizes your labor organization as the col- lective bargaining representative of those employees (a unit coextensive with the unit previously represented by the IDCA), and we are prepared to immediately commence nego- tiations for a contract. Please contact me at your earliest con- venience to arrange mutually acceptable dates for the start of negotiations. This recognition letter had existed in various anticipatory draft forms since September 17, 6 days before Abfalter signed and dispatched the final version to Wright, and well before Raley’s had any evidence of a UDCEA majority. The drafts were a product of ongoing consultations between and among Abfalter and other Raley’s executives and Attorney Telfeian, filling in for Attorney Jordan during the latter’s vacation absence. Al- though the company executives had admittedly assumed early on (from, inter alia, Eidam’s September 14 letter to the drug clerks) that Local 588 soon would be mounting its own orga- nizing effort, the executives apparently never prepared for the contingency that Local 588 might produce a majority of cards and demand recognition—at least the executives admittedly never prepared a counterpart “anticipatory” draft of a letter conferring recognition on Local 588, should that contingency present itself.146 A memorandum to “All California Drug Center Employees” announcing the recognition was also prepared sometime in the late afternoon early evening of September 23. It appeared on “Corporate Office” letterhead and it was signed, sometime between 5 and 6 p.m., by Teel, as “Co-Chairman,” after which it was dispatched (again, presumably via the truck-delivery internal mail system) to the Drug Centers, with the notation “Please Post.” The memo said this: Raley’s has received evidence that a majority of you wish to be represented by the United Drug Center Em- ployees Association, a new labor organization formed by some Raley’s employees. Based on that evidence, Raley’s has recognized the United Drug Center Employees Asso- ciation as your union. This union has been recognized as the representative of all drug clerk employees who work in the company’s California Drug Centers. This is the same collective bargaining unit that existed under the IDCA contract. We have told the union that we are prepared to begin negotiations immediately. We will sit down with your un- ion representatives as soon as possible in an effort to agree upon a contract. In the meantime, your wages and all other terms and conditions of your employment will remain the same. 146 The prosecuting parties cite this as another telling fact, in this case supposedly demonstrating that Raley’s would never have voluntar- ily recognized Local 588 on a majority showing, despite Teel’s Sep- tember 15 assurance to the drug clerks that “Raley’s is willing to rec- ognize any union that you wish.” Their interpretation is not frivolous, but neither is it particularly persuasive. The best proof that Teel’s as- surance was made in bad faith would have existed if Local 588 had secured such a majority-showing of its own, and had presented that showing to Raley’s with a demand for recognition. But this never hap- pened, even though the General Counsel posits that Raley’s executives “must have” been so fearful of this prospect that they adopted an unlawful “strategy” to avoid it. Moreover, especially considering the utter lack of evidence that Local 588 enjoyed anything approaching “majority” support, or even that Raley’s executives were fearful that it might, the executives’ failure to prepare an anticipatory letter recogniz- ing Local 588 could just as easily have been based on more mundane considerations—the most obvious possibility being that they didn’t regard any such prospect as a likely one. RALEY’S 465 VIII. LOCAL 588’S ORGANIZING ACTIVITIES DURING THE SAME PERIOD Local 588’s executives had known in advance that Eidam in- tended to disclaim IDCA’s interest in representing the drug clerks, although exactly how and when they first received such foreknowledge is not a matter of record. (Organizing Director Jacques Loveall testified that he first learned about the dis- claimer a day or so before Eidam published it, when Secretary- Treasurer Reginato, who was not called as a trial witness, showed him an advance copy of the letter.) Local 588 eventu- ally began its own organizing drive in the unit. Its first overt step appears to have been taken on September 17, when it sent out a mass mailing signed by President Jack Loveall (GC Exh. 125) to the drug clerks’ homes.147 After that, on Sunday, Sep- tember 19 (as is discussed further in part six), Jacques Loveall, accompanied by two other Local 588 agents, briefly visited the Benicia Drug Center and another nearby one in Fairfield. (Their reception by managers at each of these Drug Centers is alleged to have implicated Raley’s in “discriminatory-denial-of-access” violations.) Loveall had decided to make these early visits after receiving calls from an employee at the Rancho Cordova Drug Center late in the day on Saturday, September 18, who passed on reports from a Benicia employee that Wright had spent a “considerable amount of time” that day talking to employees in the Benicia Drug Center. In fact, it was not until Monday, September 20, that Jacques Loveall conducted a general meeting with Local 588’s profes- sional staff, where he issued blanket instructions to the agents to begin “covering” the Drug Centers. As Loveall largely indi- cated in his own testimony, and as is otherwise clear from the undisputed evidence of what happened in the aftermath of the September 20 meeting, this “coverage” process contemplated the following principal elements: Local 588 representatives were to begin making systematic personal contacts with drug clerks known or believed to favor representation by Local 588, or with grocery clerk members of Local 588 who might be able to steer Local 588’s organizers to drug clerks believed to be receptive to representation by Local 588. The representatives were also to make personal visits to the Drug Centers to intro- duce themselves and pass out their business cards (and authori- zation cards) to drug clerks. They were also to set up and con- duct “pizza dinners” for drug clerks in restaurants near the various Drug Centers, where the representatives would have a greater opportunity to make organizing pitches and distribute authorization cards. And it was not until after this September 20 staff meeting, continuing through—and well beyond—Sep- tember 23, that Local 588’s agents visited some of the Drug Centers, and, in several cases, also arranged for and conducted the pizza dinners. These combined efforts, which, I emphasize, 147 The record does not specifically indicate Local 588’s source of drug clerks’ names and addresses for purposes of this mass mailing; however, in all the known circumstances, I deem it likely that Eidam was the source of the mailing list, which was probably the same one used for his September 14 letter to the drug clerks recommending that they now select Local 588 as their representative. Indeed, the many textual and thematic correspondences between the two letters invite the inference that they had a common author. continued even after the September 23 recognition of UDCEA, resulted in Local 588’s obtaining of an uncertain number of signed employee authorizations for representation. (These in- cluded, apparently, some cards mailed out by Local 588 after September 23, designating the “UDCEA” that Jacques Loveall himself had recently formed and “registered” as an “affiliate” of Local 588, all done with the knowledge that Wright’s group was using the same name for their “independent” union, and had already been recognized in that name.) However, Loveall was admittedly “very unhappy” and “disappointed” with the “coverage” achieved by Local 588’s agents in the days (and weeks) following his September 20 staff meeting. And he was pointedly vague both about the number of signed authorizations received by Local 588 thereafter and the timing and other cir- cumstances surrounding its receipt of such cards. In sum, despite Local 588’s advance notice that Eidam would be disclaiming, the organizing “drive” conducted by Local 588 in the 9 days before UDCEA’s recognition was rather spotty and unsystematic, deeply disappointing to Orga- nizing Director Loveall, and, from all known indications, had barely gotten off the ground by September 23, when Raley’s, relying on the majority showing on the UDCEA petitions, ex- tended recognition to Wright’s fledgling group. Indeed, while the record indicates with considerable precision how many and which drug clerks had signed UDCEA petitions by the after- noon of September 23, the record tells us virtually nothing about the extent of Local 588’s support among the drug clerks by the same point, nor at any time thereafter. Finally: The record contains many incidental indications that drug clerks in several Drug Centers (e.g., Valerie Jack at Ukiah; Cindy Shepard/Albrecht and Daniel Villalva at Rohnert Park; Brenda Peterson at Rancho Cordova; Erik Rodrick at Roseville; Tim Lee at Rohnert Park) engaged in various Local 588- supportive activities (and/or activities in opposition to UDCEA) within their stores, often on work time. The record also shows that, with one isolated and essentially insignificant exception (Lee at Fair Oaks148), store managers took no actions to curb any such protected activities during the prerecognition pe- riod.149 148 As I find in part six, sec. IV,B, Drug Center Manager Haring unlawfully told Lee, when he first started wearing a Local 588 button on his work uniform, that he shouldn’t wear the button on his work uniform because it violated Raley’s “dress code.” This violation was not alleged in the complaint, and its impact was inconsequential, for Lee continued to wear the button regularly thereafter, and Haring made no further issue of it. 149 Based on an uncontradicted anecdote furnished by Erik Rodrick, the General Counsel would object here that Roseville Drug Center Manager Durbin told Rodrik, when he noticed that Rodrick had a stack of Local 588 authorization cards laying on his work desk, “Just don’t let me catch you distributing those while you’re working.” Durbin’s statement to Rodrick was not alleged as a violation (and was not a violation), and, although the General Counsel seeks to get much mile- age out of the incident on brief, she invokes it primarily to contrast Durbin’s behavior with that of Second Assistant Wallis at Benicia, who, as I will find, allowed drug clerk Albert Hernandez to take work time to meet “upstairs” with Wright, during the latter’s September 18 visit to Benicia. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 466 PART SIX: SPECIFIC ALLEGATIONS OF UNLAWFUL PRE-RECOGNITION CONDUCT I. PRELIMINARY OBSERVATIONS AND OVERVIEW A. Introduction; General Principles; Elusive Standards In this part, I will confront and dispose of roughly 20 distinct counts, as set forth in paragraphs 18 through 26 of the ultimate complaint, alleging unlawful prerecognition acts by Raley’s or its agents. The General Counsel relies on the allegedly unlawful acts described in these counts as the basis for an overarching prosecution claim that UDEA’s majority showing was “tainted,” and, therefore, that the recognition itself violated Section 8(a)(2), as did the ensuing bargaining relationship be- tween Raley’s and UDCEA/UWRU.150 A proper legal perspective on the issues raised in this case requires first a recognition that there was nothing unlawful, per se, in Raley’s having recognized UDCEA based on its majority showing, even though Raley’s was plainly aware at that time that Local 588 had rival organizing designs on the drug clerks and had begun an organizing effort of its own. The pivotally important fact for these purposes is that when Raley’s recog- nized UDCEA in the statewide unit, Local 588 had not filed a representation petition for any unit of drug clerks. See Bruckner Nursing Home, 262 NLRB 955, 957 (1982), stating in pertinent part: Accordingly, we will no longer find 8(a)(2) violations in rival union organizing situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the Board. . . . Making the filing of a valid petition the operative event for the imposition of strict employer neutrality in rival union, initial organizing situations will establish a clearly defined rule of conduct and encourage both employee free choice and industrial stability. Where one of several rival labor organizations cannot command the support of even 30 percent of the unit, it will no longer be permitted to forestall an employer’s recognition of another labor organization which represents an uncoerced majority of employees and thereby frustrate the establishment of a collective-bargaining relationship.[Fn. omitted.] See also Smith’s Food & Drug Centers, 320 NLRB 844 (1996), where the Board noted that encouraging voluntary recognitions even in “rival-union” cases was one of the “fundamental objec- tives” of the Act (id. at 845), and thus it “modified” the prior rule under Rollins Transportation System, 296 NLRB 793 (1989), by holding that, “in rival union initial organizing situa- tions, a voluntary and good-faith recognition of a union by the employer based on an unassisted and uncoerced showing of interest from a majority of unit employees will bar a petition by a competing union, unless the petitioner demonstrates a 30- 150 The General Counsel also cites alleged postrecognition unfair la- bor practices by Raley’s and/or UWRU in support of the claim that there was prerecognition contamination of UDCEA’s majority- showing. I will dismiss all such allegations of postrecognition miscon- duct, and thus I will not find it necessary to decide whether, if such misconduct had occurred, it would materially affect an analysis of the pre-recognition “taint” issue. percent showing of interest that predates the recognition.” Id. at 846. Some other basic authorities and broad legal principles ap- plicable to the unlawful recognition claims in this case are use- fully collected and summarized in Siro Security Service, 247 NLRB 1266, 1271–1272 (1980). The material teachings of that decision, and of the authorities cited therein, can be fairly re- stated in the following terms: In prosecutions like this one, attacking an employer’s voluntary recognition of a union as a violation of Section 8(a)(2), the General Counsel can prevail simply by making an unrefuted showing that, “in fact,” the recognized union lacked majority support at the time of recog- nition. Id. at 1271. Moreover, the “lack-of-majority-in-fact” test is an “objective” one; that is, the employer’s and the union’s “good-faith belief” that the union had majority support is no defense where the General Counsel has demonstrated an “ob- jective” lack of majority by showing that the number of union authorization cards or petition signatures from employees ten- dered and relied on as the basis for recognition added up to less than a majority of the employees actually employed in the rec- ognized unit at the time of recognition. See especially Ladies Garment Workers (Bernhard-Altmann) v. NLRB, 366 U.S. 731, 737–739 (1961). In this latter regard, however, it is again nec- essary to retain a certain perspective: In Windsor Place Corp., 276 NLRB 445 fn. 1 (1985), the Board took pains to “disavow the judge’s finding that a union must demonstrate its majority status before an employer can [lawfully] recognize it.” “Rather,” said the Board, under the Bernhard Altman rule, an “employer can recognize a union without such a demonstration, but risks 8(a)(2) liability for recognizing a union supported by a minority of the unit employees.” See also Bruckner, supra, 262 NLRB at 957 fn.13. Alternatively, a voluntary recognition can be successfully challenged under Section 8(a)(2) on a “taint” theory even where the General Counsel fails to “prove with mathematical certainty that the union lacked majority support at the time of recogni- tion.” Siro, supra, 247 NLRB at 1271, and authorities cited. Thus, even where, as here, the General Counsel has conceded that UDCEA did, in fact, demonstrate support from a “numeri- cal” majority when Raley’s recognized it, the prosecution may yet prevail by demonstrating, (a) that the employer “unlawfully assisted” the union during its prerecognition organizing cam- paign, and (b) that the “employer’s [mis]conduct was suffi- ciently pervasive to taint the union’s majority status.” Id. Moreover, in determining whether or not there existed such a tainted majority, the likely “impact” of the employer’s unlawful assistance must be considered in the light of the “totality of the circumstances,” including “improper conduct of the employer both before and after recognition and execution of a collective- bargaining agreement.” Id. at 1272.151 Again, however, a cer- 151 This latter formulation traces from the opinion of Justice Doug- las, writing for the Court, in Machinists: Tool & Die Makers Lodge 35 (Serrick Corp.), 311 U.S. 72 (1940)—particularly from the following passages (id. at 78–79): We agree with the court below that the toolroom episode was but an integral part of a long plant controversy. What happened during the relatively brief period from late July to August 11, 1937, cannot prop- erly be divorced from the events immediately preceding and follow- RALEY’S 467 tain perspective is required: The existence of “isolated,” or “low-impact” violations will not be sufficient in themselves to find “pervasive taint” of the union’s majority showing, any more than they would be treated as sufficient to warrant a bar- gaining order under Gissel. Thus, in the latter context, the Board, “[I]n weighing a violation’s pervasiveness,” will treat as “relevant considerations,” such factors as “the number of em- ployees directly affected by the violation, the size of the unit, the extent of dissemination among the work force, and the iden- tity of the perpetrator.” Holly Farms Corp., 311 NLRB 273, 281 (1993), citing FJN Mfg., 305 NLRB 656, 657 (1991). And, presumably, the same considerations are properly taken into account where, as here, the question will be whether any “mis- conduct” on the part of Raley’s or one or more agents of the company was “sufficiently pervasive to taint the union’s major- ity status.” Siro, supra. The General Counsel and Local 588 insist, of course, that “this is not a Bruckner case.” And this assertion raises the ulti- mate issue for adjudication: Was UDCEA’s majority showing an “uncoerced, unassisted majority?” Resolving such issues in any given case requires a recognition at the outset that “Board precedent in this area is hardly a model of clarity.” SMI of Worcester, Inc., 271 NLRB 1508, 1523 (1984), citing Long- champs, 205 NLRB 1025, 1026 (1973). Indeed, as noted in SMI, “[a]s the caselaw has developed over the years, there is ‘support’ which violates Section 8(a)(2) and ‘support’ which does not. The problem lies in determining that shadowy point at which employer assistance goes ‘beyond legally protected co- operation into the proscribed domain of interference with the freedom of choice of the employees.’” 271 NLRB at 1253, quoting NLRB v. Kellers Ladders Southern, 405 F.2d 663, 667 (5th Cir. 1968). Other cases discussed below likewise emphasize the elusive- ness of the standards for determining whether an employer has crossed the line when charged with “assisting” a union in its securing of numerical majority support. However, the issue often turns on the distinction between “coercive” assistance (obviously unlawful) and merely “ministerial” help or “coop- eration” (implying no coercion, and thereby lawful). See, e.g., Anaheim Town & Country Inn, 282 NLRB 224, 229–230 (1986): “It is apparent that [the employer’s general manager] went well beyond any ministerial help to the Union or any be- ing. . . . To say that the Board must disregard what preceded and what followed the membership drive would be to require it to shut its eyes to potent imponderables permeating this entire record. An additional observation: I regard these dicta as unexceptionable to the extent they imply that what a respondent does in the aftermath of an alleged unfair labor practice may properly influence how the trier-of- fact interprets the respondent’s motivations and behavior preceding and in the course of taking the action said to be an unfair labor practice. My only disagreement is with the various attempts made during the trial by counsel for both the General Counsel and Local 588 to invoke these dicta in support of a quite different proposition—that any unlawful act by Raley’s occurring after an employee signed a UDCEA petition may be relied on as a basis for finding that the employee’s signature was the tainted product of the same, postsigning unlawful act. On this planet, the laws of cause-and-effect preclude any such possibility. And the Court, in the cited dicta, could not have intended thus to repeal the laws of nature. nign cooperation in the union effort. He actively participated in the union organizational drive from start to finish. He called in the Union; he negotiated with the Union before it even began its organizational activity; he impliedly promised benefits to the employees if they joined the Union; he coercively interrogated an employee concerning whether they signed cards; he used supervisors to check the cards; and he precipitously executed a collective-bargaining agreement without any meaningful nego- tiations.” See also, e.g., New England Motor Freight, 297 NLRB 848, 850–852 (1980): [T]he issue in cases such as the instant matter is how much cooperation on the part of an employer is too much. In oft- quoted language from Longchamps, Inc., 205 NLRB 1025, 1031 (1973), the administrative law judge stated: . . . While it is clear that an employer may not render unlawful assistance to the formation of a union by its employees, it is also clear—and the Board has so held with court approval— that a certain amount of employer cooperation with the efforts of a union to organize is insufficient to constitute unlawful as- sistance. The quantum of employer cooperation which sur- passes the line and becomes unlawful support is not suscepti- ble to precise measurement. Each case must stand or fall on its own particular facts. Essentially the same, necessarily indefinite standards apply to the more commonly-encountered cases where an employer is alleged to have unlawfully “assisted” a movement to decertify an established bargaining representative. However, in such cases, the “essential inquiry” in the end will be “whether ‘the preparation, circulation, and signing of the [decertification] petition constituted the free and uncoerced act of the employees concerned.’” Eastern States Optical Co., 275 NLRB 371, 372– 373 (1985), quoting KONO-TV-Mission Telecasting, 163 NLRB 1005, 1006 (1967). In this regard, the prosecuting par- ties urge, and I agree, that such employer-assisted decertifica- tion cases are properly analogized to a case like this one, in- volving alleged unlawful assistance to one of two rival un- ions.152 Significantly, moreover, those cases make it clear that the “essential inquiry” properly focuses on whether or not em- ployees who sign a decertification petition have been “coerced” by the employer acts said to have involved unlawful “assis- tance.” Thus, the question is not resolved simply by pinning an “assistance” label on the act or acts in question. By parity of reasoning, “coercion,” or the absence of same, must likewise be the ultimate inquiry in cases like this one, challenging a union’s majority-showing as having been “tainted” by alleged employer acts of “assistance.” (Indeed, it could be argued that where the employer “cooperates” in a movement to oust an established bargaining representative, the test for what constitutes unlawful 152 Thus, both the General Counsel and Local 588 have cited and ar- gued the applicability to this case of Ernst Home Centers, Inc., 308 NLRB 848, 851–852 (1992), an employer-assisted decertification case, affirming and applying the “essential inquiry” standard of Eastern States Optical to determine whether any given act of arguable company “assistance” in the preparation or circulation of a decertification peti- tion amounts to unlawful assistance, or instead falls within the permis- sible realm of merely “ministerial” assistance. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468 “assistance” should be more stringent than that applied to cases like this one, where rival unions are vying to organize currently unrepresented employees.) Summing up: The General Counsel now concedes that the UDCEA petitions that were in Raley’s hands when it conferred recognition on the fledgling union contained authentic signa- tures from a majority of the drug clerks employed in the recog- nized unit, even as the General Counsel now seeks to define that unit. And it is undisputed that when Raley’s recognized UDCEA as the representative of drug clerks statewide, Local 588 had not yet filed any petition (“valid” or otherwise) for an election in any unit of drug clerks. Thus, under Bruckner, Raley’s could lawfully recognize UDCEA based on its major- ity-showing, provided that the majority showing was not itself tainted by any prior unlawful acts of Raley’s. Accordingly, to prevail in the attack on Raley’s recognition of UDCEA, the General Counsel must now rely on a majority-taint theory, under which the General Counsel bore the burden of establish- ing first that Raley’s committed at least some unlawful acts of pre-recognition assistance to UDCEA, and second that any such misconduct, considered in the totality of the circumstances, was so “pervasive” as to warrant a finding that UDCEA’s conceded, “numerical” majority-showing was nevertheless a “coerced” one. B. Organizational Scheme A number of factors make it difficult to organize the com- plaint counts discussed in this part. Chronology is a normally useful organizing principle, but that approach is confounded in this case because the timing and the sequences of alleged events are often vaguely pled and vaguely or inaccurately de- scribed in witness accounts, or otherwise hard to unravel. Moreover, even when chronology is clear, I will not always find it useful to follow chronological order in addressing the alleged violations. Rather, in succeeding sections I will order and dispose of these counts according to four categories that I will find more meaningful. These categories are themselves largely defined by the General Counsel’s alternative theories for arguing that UDCEA’s majority showing, although numeri- cally sufficient, did not reflect an “uncoerced” majority. The first category involves a unique count in the complaint, paragraph 18, which alleges that “Raley’s” itself (as distin- guished from named managerial agents at individual Drug Cen- ters) engaged in a systematic form of unlawful, prerecognition assistance, by “permitt[ing] Respondent UWRU/UDCEA to use Respondent Raley’s facsimile machines and internal telephone lines to circulate petitions[.]” Paragraph 18 is sui generis in other respects, as well—not least because the General Counsel contends that this alleged misconduct alone had the effect of “tainting” an uncertain but potentially large number of UDCEA petition signatures, i.e., those signatures said to have been ob- tained “in violation of company policy.” I have already largely confronted and rejected such contentions, but I will find it use- ful to review and directly dispose of this count first, in section II below. The second category (sec. III, below) encompasses individ- ual instances where individual managers are alleged to have directly and unlawfully “assisted” UDCEA petition-circulation activities at three Drug Centers where employees actually signed petitions for UDCEA, signatures that Raley’s relied on in recognizing UDCEA. Such “directly-tainting” violations are alleged to have occurred at Rancho Cordova (4 UDCEA sign- ers), Benicia (16 signers) and Rohnert Park (4 signers, includ- ing Woolsey, who later sought to retract her signature). The General Counsel contends that the 24 UDCEA signatures from these three stores were the directly tainted products of the al- leged violations of the local managers. I will find no factual merit to the counts alleging violations at Rancho Cordova and Rohnert Park, and, therefore, no plausible basis for attacking as contaminated or unreliable any of the 8 UDCEA petition signa- tures from drug clerks at those two stores. I will find that the Benicia counts, although perhaps raising the closest questions of fact and law, are likewise without merit. At least as impor- tant, I will find that any arguably unlawful “assistance” given by Benicia Second Assistant Wallis to Wright’s UDCEA orga- nizing activities on the day in question, (a) could not have had any coercively tainting effect on any of the 16 Benicia drug clerks who signed UDCEA petitions, and (b) was in any case too isolated (i.e., not shown to have been part of any recurring pattern at other stores) to justify more general prosecution claims of an “overall taint” to UDCEA’s majority showing. The third category (sec. IV) collects counts alleging em- ployee-directed violations by named managers at four, geo- graphically widespread Drug Centers (Placerville, South Lake Tahoe, Fair Oaks, and Ukiah) where no employee ever signed a UDCEA petition—at least none received or relied on by Raley’s. The General Counsel invokes the alleged misconduct in this category as part of an overall, “totality of the circum- stances” attack on UDCEA’s demonstrated majority showing. Here, the prosecution argues, in essence, that Raley’s alleged misconduct in these complained-of instances, although having no direct, demonstrable impact on UDCEA’s majority- showing, was nevertheless so symptomatic of “widespread” and “pervasive” unlawful company activity during the UDCEA petition campaign that it is appropriate to presume that Raley’s engaged in similar misconduct at other stores where employees did sign UDCEA petitions, even if no such “misconduct else- where” was ever specifically alleged in the complaint to have occurred, and, indeed, was never shown to have occurred. Of all the alleged violations fitting in this category, I will find only two, isolated and minimal-impact pre-recognition violations— one by a manager in the Placerville Drug Center (a violation that was effectively alleged in the complaint), and another by a manager at Fair Oaks (a violation that was never alleged in the complaint, but was fully litigated). As I finally review the case, these isolated violations, which clearly had no impact on UDCEA’s majority showing (because no one at either store signed a UDCEA petition received or relied on by Raley’s) will not add up to enough to justify the sweeping presumption about “misconduct elsewhere” that lies at the heart of the prosecuting parties’ “totality” arguments. The fourth category (sec. V) collects a series of “denial-of- access” counts, that is, counts alleging that managers at four different Drug Centers (Benicia, Fairfield, Fair Oaks, and Rohnert Park) unlawfully denied or interfered with attempts by Local 588 staff representatives to make in-store organizing RALEY’S 469 contacts with drug clerks. These counts are commonly inspired, at bottom, by a “discrimination” theory. Thus, in each case they allege as an element of the violation that “Raley’s concurrently allowed representatives of Respondent URWRU/UDCEA [re- ferring, in fact to employee Ed Wright] to use its facilities” to make organizing contacts with the drug clerks. I will judge that these discrimination counts cannot be sustained because they commonly rest on a legal premise that strikes me as irreconcil- able with the teachings of the Supreme Court and the Board— that when an employer “allows” employees to conduct pro- tected, on-premises organizing or other solicitation activities on behalf of one of two unions in a rival-union organizing situa- tion (activities which the employer is required to “allow”) the employer will forfeit its otherwise well-established right to bar the rival union’s nonemployee organizers from conducting similar activities on the employer’s premises. II. “PERMITTING” UDCEA TO USE STORE PHONES AND FAX MACHINES (COMPLAINT PAR. 18) A. Verbiage and Other Salient Features Complaint paragraph 18 charges as follows: From about September 14, 1993 until about September 24, 1993, Respondent Raley’s permitted Respondent UWRU/ UDCEA to use Respondent Raley’s facsimile machines and internal telephone lines to circulate petitions requesting that its employees be represented by Respondent UWRU/UDCEA. Paragraph 18 differs from the remaining counts dealt with below in that it raises questions of fact and law that I have al- ready largely addressed and disposed of in part five. Neverthe- less, I think certain of paragraph 18’s features deserve further elucidation and comment before I recapitulate below why I find the entire count meritless. The claims made in paragraph 18 were amended into the complaint shortly before the trial. They are exclusively grounded, in fact, on evidence of admitted employee activi- ties—primarily those of Ed Wright on the afternoon of Septem- ber 15 (during his visits to the Grass Valley and Yuba City Drug Centers, where he used store telephones and fax ma- chines) and again on September 21 (when he was caught using the telephone in the office shared by the Grass Valley Drug Center managers). Considering this, the count now under dis- cussion is notable first for its avoidance of the word “em- ployee” when referring to the “user” of the Company’s tele- phone and fax lines, and its choice instead to refer to an abstract and barely existent entity, “Respondent UWRU/UDCEA,” as the “user.” I don’t think the choice of such labels was merely thought- less or artless, for the author of the complaint uses similar rhe- torical devices when referring to Wright or his employee-allies in other counts, such as in paragraph 19, alleging that at the Benicia store, Second Assistant Wallis “allowed” persons iden- tified only as “representatives of Respondent UWRU” (but referring in fact to Wright) to “use” the Benicia “facilities” to “talk to employees.” Rather, I think that by avoiding mention- ing in paragraph 18 that it was an employee or employees whom “Raley’s” is said to have “permitted” to use its phones and fax machines, and by referring instead to Respondent UWRU/UDCEA as the “user,” the author of the complaint may have been trying in this early count to condition us to start thinking about Ed Wright in the same way we think about an organizer on Local 588’s professional staff, i.e., as merely a “union representative,” despite the fact that Wright, unlike his supposedly equitable counterpart on Local 588’s staff, was a Raley’s employee. And that this was the author’s intent seems clearly to be reinforced by the General Counsel’s contention, disposed of in section V, of this part, that when Raley’s “al- lowed representatives of “Respondent UWRU [i.e., Wright] to use the [Benicia] facility to talk to employees,” it followed “as a matter of law” that Raley’s was now required to cede to Local 588’s “representatives” the same access to and degree of “use” of its store “facilities” as it had “allowed“ to “Respondent UWRU/UDCEA’s representatives,” i.e., Wright. Moreover, the prosecuting parties, while never quite asserting that Wright was not an “employee,” repeatedly emphasize Wright’s “off-duty/ leave-of-absence” status and his UDCEA-“representative” pur- pose during his visitation to Benicia and various other stores in the prerecognition period. Again, their apparent point is to sug- gest that Wright’s off-duty/LOA status, and his role during the visitations as a “representative” of a labor organization, com- bine to make him properly comparable, for access-rights pur- poses, to that of an organizer on Local 588’s staff. These suggestions need to be nipped in the bud. As I elabo- rate in section III,C, any notion that Wright was not an “em- ployee” when he conducted his prerecognition organizing ac- tivities, or that his off-duty/LOA status somehow warrants treating him for store-access purposes as tantamount to a “non- employee union organizer” under Babcock & Wilcox and Lech- mere, collides squarely with the Board’s holdings to the con- trary. Accordingly, for present purposes I simply emphasize that which the wording of paragraph 18 (and other paragraphs yet to be discussed) seems to be trying to obscure: Although Wright was in all cases of his phone and fax use during this period acting on behalf of and in the interests of his fledgling union, his status was not that of a “nonemployee organizer” for UDCEA, but that of an “employee” of Raley’s within the con- templation of Section 2(3) of the Act, with all attendant statu- tory protections. In addition, I observe that insofar as paragraph 18 alleges that Raley’s permitted Wright or his employee-allies to “circu- late” petitions via company-controlled media, the verb must be understood as referring to Wright’s or other employees’ use of store fax machines to transmit blank petition copies to their coworkers at different stores. That’s what “circulate” has to mean in this context, and the verb cannot sensibly be extended to cover a separate category of petition-transmission activity, i.e., the faxing of already-signed petition copies to company headquarters. Nevertheless, as I have noted earlier, the General Counsel has expanded the prosecution theory on brief to in- clude the notion that Raley’s was equally guilty of unlawful assistance to UDCEA’s organizing drive when it “permitted” its store fax machines to be used as the medium for transmitting signed petitions to Abfalter’s office at headquarters, no matter whether the transmitting party was a drug clerk or a Drug Cen- ter manager, and no matter whether the corporate officials at headquarters who received and relied on the petitions knew or DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470 did not know the identity or job status of the particular trans- mitter in any given case. B. Analyses and Conclusions Recapitulated Paragraph 18, like all of the other counts yet to be discussed in this part, requires me to answer one or more of the following three questions: (1) Did the General Counsel establish by a preponderance of the credible evidence in the record as a whole that the conduct identified in the complaint as unlawful assis- tance actually occurred? (2) If so, was the proven conduct unlawful? (That is, did the conduct shown to have occurred involve coercive, discriminatory, or otherwise prohibited acts that amount to unlawful “assistance,” as distinguished from aid of a merely “ministerial” kind?) (3) If so, could the particular acts found to constitute unlawful assistance, viewed in the light of all the surrounding circumstances, have had any “tainting” impact on UDCEA’s majority showing? For reasons recapitu- lated below, I judge in the end that the factual allegations of paragraph 18 are not supported by a preponderance of the credible evidence, and that the proven facts will not themselves support any claim of unlawful assistance or petition-tainting conduct on Raley’s part. If we are talking simply about the use of store phones and fax machines to “circulate” UDCEA petitions, it is apparent that paragraph 18 relies on three categories of admitted em- ployee activities, primarily those of Ed Wright, namely: (1) Wright’s admitted use of in-store fax machines at Grass Valley and Yuba City on September 15, to get UDCEA petition forms into the hands of his employee-allies in various other Drug Centers; (2) Wright’s admitted use of OPX phones at Grass Valley and Yuba City on September 15 to advise his employee- allies that petition copies were being transmitted to their stores and to instruct them what to do with them; and (3) Wright’s admitted use of the OPX phone in the Grass Valley managers’ office on September 21, to make followup contacts with an employee-ally. Any merit to the General Counsel’s theory of violation as to this count depends at the threshold on the existence of substan- tial and credible evidence that Raley’s “permitted” the activities just listed. But there exists no such proof. The record contains no distinct evidence that any agent of Raley’s was aware of Wright’s (or of any other specific employee’s) use of the OPX phones or fax equipment in aid of UDCEA organizing at the time the employees used these media—especially not on Sep- tember 15, when Wright conducted the lion’s share of these activities. Accordingly, “Raley’s” cannot plausibly be charged with having given “permission” for any of those activities. In addition, in those cases where agents of Raley’s (Grass Valley Manager Lane and Senior Assistant Mowery) were shown to have become aware, post facto, of Wright’s use of store phones and fax machines, “Raley’s” can hardly be charged with having “condoned” those activities. Thus, the evidence affirmatively shows, (a) that Mowery, after hearing “rumors” from “other clerks” that Wright had been using company “equipment,” called Wright on the evening of September 18 and, when Wright admitted that the rumors were true, Mowery plainly and unambiguously instructed Wright not to do such things; and (b) that Lane, after catching Wright using the telephone in the managers’ office on September 21, promptly issued a more severely-couched written “Warning Notice” to Wright that he faced further discipline, including discharge, if he were to re- peat such misconduct. Moreover, as previously discussed, there is no substantial basis in this record for supposing (as the prosecuting parties insist) that these warnings and instructions were less-than-“seriously” intended, for they represented un- precedently formal and severe warnings and threats of dis- charge for an employee’s use of the fax machines or phones for “non-Raley’s business.” And the General Counsel’s reason for asserting to the contrary—that “Raley’s” had an “obligation” under the Act to “punish” Wright’s breach of the rules by “re- fusing to consider” any petition signatures secured “in violation of company policy”—is not supported by any caselaw and is independently mischievous in terms of its erosive impact on established employee rights and other fundamental policies under the Act. In addition, as discussed previously, the General Counsel fares no better even if paragraph 18 were intended, despite its chosen verbiage, to refer to other than petition-“circulation” activity, i.e., to Raley’s having “permitted” employees and/or managers to use store fax machines to transmit signed petitions to Sacramento headquarters. There is no good reason to sup- pose that Raley’s official rule limiting fax transmissions to “Raley’s business” only, envisioned a ban on the transmission of signed petitions (uniquely significant papers bearing on rep- resentational questions important to both the employees and Raley’s) to the company officials in Sacramento who were empowered to respond to such petitions. And the same is true of Wright’s use of a store fax machine to transmit UDCEA’s demand for recognition to Abfalter, i.e., the same medium also used by Eidam (and “permitted” to the same extent by “Raley’s”) to transmit instantly to Abfalter one copy of his letter disclaiming IDCA’s representational interest in the drug clerks. Indeed, the General Counsel’s implicit presumption— that these store-to-headquarters fax transmissions of documents fundamentally affecting its employees’ representational rights fell outside the category of “Raley’s business”—is dubious on its face, and not supported by any affirmative evidence of any relevant past practice that might justify such a presumption. In any case, I would find that by thus “permitting” employees or managers to use store faxes to transmit signed petitions to headquarters, Raley’s did no more than to render lawful, non- coercive “ministerial” aid in the transmission of already-signed petitions to the people who had to review them before Raley’s could lawfully decide whether or not to recognize UDCEA. Accordingly, I dismiss the complaint insofar as it alleges that Raley’s gave unlawful assistance to UDCEA, or otherwise unlawfully coerced employees, by the alleged conduct de- scribed in paragraph 18. I likewise reject the General Counsel’s difficult-to-understand claim that the signatures of employees on petitions that were circulated “in violation of company pol- icy” were thereby “tainted.” And I do so without trying to de- termine exactly whose signatures the General Counsel may RALEY’S 471 have had in mind in making this claim, much less trying to divine the theory on which the claim is made.153 III. ALLEGED “ASSISTANCE” VIOLATIONS BY MANAGERS AT STORES WHERE UDCEA PETITIONS WERE SIGNED A. “Allowing” Employees at Rancho Cordova to “Circulate” UDCEA Petition 1. Introduction: the undisputed facts The complaint alleges that Raley’s furnished unlawful assis- tance to UDCEA when, as alleged in paragraph 22 (a): On various unknown dates from about September 17, 1993 until about September 23, 1993, by Charles Cooper, Bill Renfry[154], and Mary Porter, allowed its employees to circulate petitions requesting that they be represented by Respondent UWRU/UDCEA. This is a confusing and mysterious count in many ways, and not just because the record surrounding it is littered with a greater-than-usual number of testimonial disputes, false leads, and other sources of factual confusion or uncertainty. Nor is it because here we again confront a count that surfaced only in trial-eve amendments to the complaint, even though the Gen- eral Counsel’s two witnesses in support of the count, Brenda Peterson and Teresa Bever, had given affidavits to a Board agent in December 1993 describing the matters now at issue.155 Rather, the greatest source of mystery in the end is that the General Counsel has never clearly identified, much less coher- ently defended, the prosecution’s theory of violation in this instance; that is, a theory under which Raley’s could be found to have unlawfully assisted UDCEA, even if the factual aver- rals of paragraph 22 were found to be true. Indeed, so ulti- mately elusive are the General Counsel’s contentions associated 153 Counsel for the General Counsel has not attempted to describe with any specificity either the identities or total numbers of petition- signers believed to belong to the supposed class of those who signed petitions “in violation of company policy.” Indeed, the breezily elusive nature of counsel’s repeated references to this imagined class is itself a source of lingering mystery, not just in trying to assess the potential numerical impact of such supposed taint on UDCEA’s majority show- ing, but in trying to get a handle on the General Counsel’s underlying theory of employer-“taint” itself. Is the General Counsel saying that it independently “violated company policy” for an employee to sign a union petition that arrived via a store fax? Or is the General Counsel saying that because the faxed petition arrived in a store in “violation of company policy,” any employee who signed it thereafter must be pre- sumed to have been coerced or otherwise unduly influenced in the choice to sign by the circumstances of the petition’s original arrival? And if the particular provenance of a particular petition is critical to the General Counsel’s theory, and it appears to be, what was it about a petition faxed “in violation of company policy” that could be said to have coerced or otherwise unduly influenced an employee who signed it? Simply that the petition had “Raley’s cooties” on it? And without regard to whether or not any of the signers were able to detect any such microbes of contamination? 154 The name is properly spelled as “Renfree,” the spelling I will use from now on. 155 Indeed, Peterson had furnished two such affidavits in December 1993, and had also furnished a handwritten narrative statement to Local 588 concerning these matters on September 24, 1993 (GC Exh. 102), only days after the events now in question. with this count it’s hard to know which of the many facts or supposed facts might matter in the end, and therefore, it’s hard to decide where or how to start talking about them. I’ll begin by summarizing those facts that are not now in dispute: On the morning of September 17, a UDCEA petition form was faxed into the Rancho Cordova pharmacy, where it was spotted and taken from the fax machine by pharmacy clerk Brenda Peterson, who was by then well known to local em- ployees and managers as an outspoken supporter of Local 588. Peterson promptly complained to Second Assistant Manager William Renfree, and gave the faxed document to Renfree, who soon dropped it on the table in the employee breakroom. Peter- son, apparently following closely on Renfree’s heels, entered the breakroom herself, where she saw the petition on the table and Renfree still present in the room. Peterson then confronted Renfree a second time, pressing the petition back into his hand and further pressing him to report this evident violation of “company policy” to Sacramento headquarters. (Peterson states that she specifically advised Renfree to call “Dan Abfalter” in “Human Resources”, and Renfree recalls that Peterson sug- gested a man’s name, one, however, that he could no longer recall, just as he could no longer recall whom he did speak with at headquarters, as further described below.) Renfree then walked from the breakroom with the petition in hand. Some minutes after this, Renfree reported back to Peterson that he had called headquarters and had received instructions to “re- move” the petition, which, so he assured Peterson, he had done. Further, and subject to marginal qualification below, there appears to be no dispute about what Renfree did after agreeing to call headquarters and before reporting back to Peterson: Thus, Renfree testified that he called headquarters and eventu- ally spoke to a man whose name he could no longer recall (and who is assumed by the General Counsel to have been Abfalter), who instructed Renfree to secure the petition in Drug Center Manager Cooper’s office, an instruction which Renfree says he followed by placing the petition in a drawer in Cooper’s desk. The General Counsel largely embraces Renfree’s testimony in this regard, accepting as fact (indeed, as “admissions”) that Renfree placed such a call to headquarters, that he received instructions to secure the petition, and that he then placed the petition in Cooper’s desk drawer. (See GC Br. 221–223.) In fact, the only question the General Counsel seems to raise in this respect is whether Renfree’s narration fully described his conversation with the headquarters official. However, the Gen- eral Counsel’s doubts about the completeness of Renfree’s descriptions are themselves based only on darkly speculative ponderings of a now-familiar kind,156 and thus may be safely 156 The General Counsel finds it “likely” in this instance that “Ren- free reported to Abfalter that a drug clerk supporting Local 588 had complained that the petition was sent by fax in violation of company policy.” Then, introducing the editorial notion that “UDCEA had been caught red-handed” (by Peterson), the General Counsel speculates that “Abfalter” must have seen it the same way after receiving Renfree’s report. Thus, counsel imagines that “Abfalter would have been forced to tell Renfree to put the petition away for awhile to calm things down because they could not give the impression, once they were caught, that Raley’s was helping UDCEA circulate its petition.” GC Br. 221 fn. 261 (emphasis added). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472 ignored for purposes of further discussion. In sum, treating the substance of Renfree’s testimony as not in any genuine dispute, I find as fact that Renfree placed a call to headquarters, re- ceived instructions to secure the petition in Cooper’s office, and did just that, by placing the petition in Cooper’s desk drawer.157 However, 4 days later, on September 21, Peterson discov- ered, under disputed circumstances, that the same, fax-flimsy petition she had pressed into Renfree’s hand and which Renfree had put in Cooper’s desk drawer on September 17, was now being circulated by Minnie Ruth (Ruthie) Gordon, a drug clerk who normally worked in the camera department. (Gordon had been IDCA’s shop steward at Rancho Cordova for about 12 years prior to the disclaimer, and she became UDCEA/ UWRU’s shop steward after the recognition and continued to serve in that role until she retired in December 1994.) By the time Peterson discovered this on September 21, Gordon had already signed the petition, as had one other drug clerk, Mel Brovald. (In fact, both Gordon and Brovald had signed it the preceding day, September 20.) Also on September 21, and un- der disputed circumstances, Peterson acquired possession of the original petition document, now containing Gordon’s and Brovald’s original, September 20 signatures. Later that eve- ning, Peterson met with Local 588 Representative Greg Cory, at which point she passed on this original document to Cory. By the time of this handover, however, Gordon’s and Brovald’s signatures had been crossed out, again under disputed circum- stances. This incarnation of the original fax-flimsy petition document in its two-signatures-crossed-out form remained in Local 588’s files until belatedly discovered by the General Counsel, after concluding Peterson’s direct examination, fol- lowing which it was eventually tendered and received into evi- dence as General Counsel’s Exhibit 103. However, it is evident that UDCEA adherent Gordon still possessed what must have been a copy of the original, fax- flimsy petition in the form it existed when Peterson first ac- quired it on September 21, i.e., still containing Gordon’s and Brovald’s intact (not crossed out) signatures. Thus, Gordon’s testimony, confirmed by the documentary record, further shows that, on September 22, Gordon was still circulating an identical copy of the petition, with her own and Brovald’s signatures intact on the copy, and secured the signatures on her retained copy of two more drug clerks, Mary Neely and Eddie Pine. Then, after obtaining these additional signatures, Gordon went to a nearby commercial facility, “Mailboxes, Etc.,” and paid to have the four-signature petition faxed to Abfalter’s office in Sacramento. The fax was transmitted at 1:44 p.m., and was presumably received and printed out in Sacramento within minutes of that time. The fax copy received at headquarters is General Counsel’s Exhibit 54, Bates 771, which is the only incarnation of the petition copies among the three “Rancho 157 Moreover, I note that Senior Assistant Porter specifically and credibly confirmed that, after learning from Renfree that Peterson had objected to the arrival of the faxed petition, and that Renfree had sub- sequently called headquarters and followed instructions by impounding the petition in Cooper’s desk drawer, she looked in the drawer herself and found the petition there, in the same, unsigned, fax-flimsy form as it had appeared when it had first emerged from the fax machine on September 17. Cordova” petition-specimens now in evidence whose pro- venance and chain of custody is not the subject of contradic- tory, confusing or ambiguous testimony. A total of 16 drug clerks were then employed in the Rancho Cordova store. Raley’s relied on the four UDCEA signatures from Rancho Cordova as part of its majority calculation leading to its statewide recognition of UDCEA on September 23. 2. The General Counsel’s ultimate contentions It is clear from the General Counsel’s brief that the prosecu- tion seeks an ultimate finding that the four Rancho Cordova petition signatures were “tainted” by Raley’s allegedly unlaw- ful prior “assistance,” and thus should be disregarded in any analysis of UDCEA’s majority showing.158 Exactly why the General Counsel takes these ultimate positions is less clear from the prosecution brief. Nor can the answer be inferred from the language used in the complaint, which simply charges that Raley’s acted unlawfully by “allow[ing] employees to circulate [UDCEA] petitions.” However, as suggested earlier, the lan- guage of paragraph 22 raises a serious question on its face whether it describes conduct that violates the Act. The question is this: How can it be unlawful for an employer to “allow” em- ployees to do something—“circulating” a union petition in this case—which the Act normally requires an employer to “allow,” subject only to the employer’s right to restrict any such activity conducted on its premises to nonwork areas and nonwork times? The General Counsel has nowhere confronted this question in the 23 pages of the prosecution brief devoted to this count, and the prosecution’s legal position with respect to these mat- ters remains devilishly hard to discern from the General Coun- sel’s lengthy but meandering and ultimately inconclusive dis- cussions. In the end, however, it seems evident from the totality of the General Counsel’s remarks about and characterizations of the facts that the prosecution’s theory of violation starts with a legal assumption which the General Counsel has avoided stating explicitly, and has never defended by citation to any pertinent authority. The implicit legal assumption is as follows: Renfree operated under a statutory “duty” in the circumstances to confiscate the balnk petition once it arrived via the pharmacy fax, and defaulted on that supposed duty when, by one device or another, he “allowed” the petition to get back into circulation through Gordon’s hands between September 20 and 22. But if this is, indeed, the key legal theory that animates the remainder of the prosecution’s arguments, I reject it for the reasons set forth in my concluding analyses. The undisputed facts summarized above form only the skele- ton for the General Counsel’s ultimate claims that the four peti- tion signatures were the tainted products of Raley’s allegedly unlawful assistance. Thus, based on further, highly disputed features in the testimony of Peterson, the prosecution’s anchor witness, the General Counsel also seeks additional findings— not only that Rancho Cordova managers “allowed” Gordon to “circulate” the petition ultimately received and relied on by 158 See GC Br. 233 (“all of the names on the Rancho Cordova peti- tion were tainted”). See also id. at 338 (“all four signatures from the Rancho Cordova drug center . . . were tainted and cannot be counted towards UDCEA’s majority”). RALEY’S 473 Raley’s, but that, in fact, Renfree himself was the party who furnished the offending petition to Gordon for this purpose, despite the fact he had originally told Peterson that he had fol- lowed orders by “removing” the petition. In addition, based on the wholly-disputed testimony of drug clerk Teresa Bever, the General Counsel seeks yet additional findings—that store man- agers not only knew of and “allowed” Gordon to “circulate” the petition, but conspired in Bever’s presence to facilitate Gordon’s petition-circulation activities, by talking about taking Gordon from her work in the camera department so that she could conduct a “survey.” Accordingly, before passing finally on the merits of the General Counsel’s ultimate contentions, I will revisit the facts in greater detail, making credibility resolu- tions where necessary to address the matters most closely in dispute, i.e., those additional features in Peterson’s and Bever’s accounts which the General Counsel most frequently invokes in support of whatever theory animated the trial-eve decision to amend the Rancho Cordova counts of paragraph 22 into the complaint. 3. The facts as I find them a. Peterson’s credibility Counsel for the General Counsel relies heavily on Peterson’s various narrations as the basis for most of her factual assump- tions and arguments on brief. But Peterson’s accounts are sig- nificantly contradicted by other witnesses. For all of the reasons set forth below, I would not rely on Peterson’s version of con- troverted transactions; indeed, I would not give credence to any feature of her testimonial account that is not independently corroborated by reliable evidence. Peterson presented as an intelligent, alert, and articulate wit- ness, but hardly a disinterested one. Her own testimony, echoed by that of other Rancho Cordova witnesses, shows in the ag- gregate that, from at least April 1993 through and beyond the recognition of UDCEA/UWRU, she was a particularly outspo- ken supporter of drug clerk representation by Local 588. Thus, she attended the rump group convention called by Wright, Germ and other anti-Eidam dissidents at the Roseville Eagles Hall 5 months earlier, on April 25, and she was the most con- spicuous voice in opposition to the dissident’s efforts to stymie or undue Eidam’s alliance with Local 588. Thereafter, starting in May and continuing through the summer of 1993, she admit- tedly initiated and maintained contacts with Local 588 repre- sentatives Greg Cory and Jacques Loveall, and regularly advo- cated representation by Local 588 to nearly all of her co- workers at Rancho Cordova, including then IDCA shop steward Gordon (whose own testimony clearly shows that she was steadfastly in the anti-Eidam, anti-affiliationist camp). Before the disclaimer, Peterson also admittedly informed Drug Center Manager Cooper, and “probably,” Renfree, as well, that she supported Local 588. Likewise, following the disclaimer, Peter- son became a conspicuous supporter of Local 588’s overt drive to become the drug clerks’ representative, and an equally vocal opponent of Wright’s UDCEA organizing efforts, which, as her testimony shows, she believed would simply give rise to an- other, intolerable, “in-house” union. In the days and weeks following the disclaimer, she distributed authorization cards for Local 588 among the Rancho Cordova drug clerks, and left packets of other such cards on the breakroom table for employ- ees to sign. (Significantly, there is no contention nor evidence that Peterson or any other Rancho Cordova employee was dis- turbed or inhibited in any way in thus organizing for Local 588 within the Drug Center.) She also had at least three separate meetings with Local 588 agent Cory in the 5-day period be- tween September 17 and 22, where she passed along various bits of intelligence relating to UDCEA organizing efforts at Rancho Cordova. However, that Peterson was an early, outspoken, and even passionate supporter of Local 588 would hardly be enough in itself to cause me to reject her disputed versions of certain sup- posed transactions. We heard from very few people in this case who did not come to the witness stand with an admitted or oth- erwise inferable interest in the outcome.159 But Peterson was in many ways unique among the witnesses. She was unswervingly convinced—and gave strong voice to the conviction from the witness stand when I finally allowed her to unburden herself— that she had been herself the victim of unlawful discrimination at the hands of Raley’s and her Rancho Cordova managers. (This belief, apparently linked centrally to a temporary pay- check snafu arising after UDCEA’s recognition, was also the subject of a separate charge filed by Local 588 on Peterson’s behalf, a charge, however, which Local 588 later withdrew, and which is not being pursued in this litigation.)160 Peterson clearly betrayed that she was nursing a deep and abiding sense of grievance over the perceived discrimination, and she regularly displayed unique signs of bias against and contempt for the respondent parties and their representatives and anyone else associated with them, and an overweening desire to depict them in the worst possible light.161 In short, Peterson stood out in my mind as a witness with a special axe to grind. 159 Nearly all of the employees called as witnesses by one side or the other were admitted adherents of either Local 588 or UDCEA/UWRU, and many of them also revealed that their preference for one union over the other was decidedly more than a merely casual inclination. Obvi- ously, moreover, the management-level witnesses called by Raley’s may be presumed to have been mindful of Raley’s interests as they presented their own testimonial accounts. 160 The charge in question was filed by Local 588 in Case 20–CA– 25800. In connection with this charge, Peterson furnished an affidavit to the Board on December 22, 1993, one which covered matters nar- rated again (in some respects inconsistently) by Peterson in her trial testimony, and attached to which was Peterson’s September 24, 1993, handwritten statement to Local 588 (GC Exh. 102), also covering many of the same matters. The record does not indicate exactly when this charge was filed, nor when it was subsequently withdrawn by Local 588 (Peterson professed from the witness stand not to have been aware even that the charge had been withdrawn.) But it clearly appears that the investigation of it took place during December 1993, in the same period when the Regional Director was also investigating Local 588’s October 4, 1993, charge attacking Raley’s recognition of UDCEA/ UWRU. 161 Peterson’s resentment of, and general sense of grievance against (variously) Raley’s, its Rancho Cordova managers, Ed Wright, and any other employees who favored an “in-house” union, were often made palpable in ways that the cold transcript cannot convey—by the drip- pingly sarcastic and scornful tones that pervaded many of her descrip- tions of the actions of others, and, as well, many of her responses to questions posed on cross-examination by the respondents’ lawyers. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474 I note also that the several pretrial statements signed by Pe- terson concerning the matters now in question do not always fit well with her trial testimony concerning those same matters,162 testimony which was itself marred by inconsistencies, confu- sions, and false leads. Add to that the remarkable number of disputed instances (infra) in which Peterson claims personally to have secured “admissions” from various individuals who were fully aware of her militantly pro-Local 588 stance, i.e., “admissions” which conveniently enable prosecution arguments that would not otherwise be available from the record. All of these factors, considered in their totality, have left me quite reluctant to embrace any features of Peterson’s various ac- counts that are not clearly corroborated by independently reli- able testimony or documentary evidence. b. The events of September 17 elaborated On the morning of September 17, Peterson was working in the pharmacy when she spied a specimen UDCEA petition emerging from the pharmacy fax machine. By Peterson’s and all others’ accounts, this “original,” fax-flimsy document, showed signs on its face of having been previously faxed be- tween other Drug Centers, with the first such transmission hav- ing occurred on September 15. And, in the form in which it emerged from the Rancho Cordova fax machine, it contained what had once been an employee signature on its first signature line, but this signature had already been heavily “blacked-out” before the document had been faxed into the Rancho Cordova pharmacy, apparently at some previous point in the chain of transmission. The rest of the signature lines, however, were then blank. Peterson immediately took the petition from the fax machine, picked up an in-house intercom “pager” phone, and summoned Second Assistant Renfree into the pharmacy, where she pre- sented the faxed petition to him. She complained as she did so that she didn’t appreciate being interrupted in her work by a 162 Peterson wrote or subscribed to at least four different written statements in the 3 years preceding the opening of the trial. These were (1) an initial, handwritten account of recent events prepared and given to Local 588 on September 24, 1993 (separately received in evidence as GC Exh. 102); (2) a later affidavit furnished to the Board on December 16, 1993, in connection with Local 588’s October 4 charge attacking the recognition (attached to which were copies of GC Exhs. 102, 46); (3) another affidavit given to the Board on December 22, 1993, in connection with the separate, ultimately withdrawn charge filed on her behalf by Local 588, discussed in the last footnote; and, (4) her re- sponse to the Region’s phase three investigative questionnaire, which she signed and returned in late June or early July 1996. The record made during Peterson’s cross-examination contains fragmentary indica- tions of what she said in her December 1993 Board affidavits and in her July 1996 questionnaire response. And what is noteworthy from a com- parison between and among these statements and her trial testimony are the number of internal discrepancies, inconsistencies, and other tell- tales of unreliability. (In some written statements she made claims of fact about the behavior of store managers and others that she was not invited by the General Counsel to repeat from the witness stand. Other claims made in her trial testimony are in conflict with one or more of the pretrial statements she furnished, particularly with respect to the (pre or postrecognition) timing of a conversation she claimed to have had with Cooper and Porter about Gordon being in possession of the petition. faxed solicitation to sign a union petition, and she demanded that Renfree do something about this breach of “company pol- icy.”163 (Considering the minimal amount of “interrupted” work time involved in Peterson’s having spotted and then removed the petition from the fax machine, and the substantial amount of additional worktime Peterson thereafter spent in bird-dogging the status and progress of the petition, I take her expression of umbrage over the arriving petition’s “inter-ruption” of her “work” with a large dose of salt.) I must now digress to explain my finding that Peterson gave the original fax-flimsy in its nascent, unsigned form (rather than a “copy”) to Renfree. This explanation, although itself difficult to narrate and certain to introduce further confusion, will also help to illustrate Peterson’s related unreliability when it came to identifying the provenance and disposition of two other incarnations of the petition that were also received into evidence (GC Exhs. 103, 46).164 Thus, contrary to my (now- undisputed) finding that Peterson gave the original fax flimsy to Renfree on September 17, Peterson testified (several times, in fact, and deliberately in each case) that she first made a “copy” of the original document from the fax machine, and that it was this “copy” that she gave to Renfree on that date. Relatedly, she also testified more than once that she also gave a “copy” of the same document, in its nascent, September 17 form, to an agent of Local 588. This implied that Peterson had retained the origi- nal fax flimsy in its nascent form, and that she had given both Renfree and Local 588 a “copy” of the petition in the same form. But no such “September 17” version of the document was ever tendered by the General Counsel, either in “original” or “copy” form. Moreover, prodded by reminders from the bench, based on Peterson’s testimony that such a copy might exist in Local 588’s files, the General Counsel eventually (during trial recess days that interrupted much of Peterson’s cross-exam- ination) made appropriate inquiries and made a discovery: The only “copy” in Local 588’s possession, was, in fact, the “origi- nal” of the fax flimsy itself, but in the later, evolved form that it took after Peterson had reacquired it on September 21. Put an- other way, using the General Counsel’s words (Br. 211 fn. 242), this discovery showed that the document in Local 588’s possession (GC Exh. 103) was, in fact, “the actual original petition on thermal fax paper that had [come] over the Rancho Cordova fax machine without any signatures on it, and on which two additional signatures later were placed and then 163 I won’t find it necessary to resolve the marginal credibility con- flict between Peterson and Renfree as to whether Peterson specifically advised Renfree during this first episode to call “Dan Abfalter,” or whether she threatened herself to call Abfalter if Renfree were unwill- ing to do so. 164 As previously found, GC 103 is the “original,” fax-flimsy petition document that arrived via the pharmacy fax on September 17, but as supplemented by the September 20 signatures of Gordon and Brovald, which had, in turn, been crossed out on the original by the time Peter- son gave it Local 588’s Cory on the evening of September 21. (This document, belatedly discovered reposing in Local 588’s files, also contained a notation on its back side indicating that Cory had received the document from Peterson on the evening of September 21.) GC Exh. 46 is a photocopy of the front side of GC Exh. 103, one retained by Peterson. RALEY’S 475 scratched out.” And this discovery also makes it clear, as the General Counsel is now forced to concede, that Peterson could not have given a “copy” of the nascent, September 17 petition to Renfree, but the fax-flimsy “original” itself.165 Returning to my narrative, it is further undisputed that, al- though Renfree accepted the faxed petition form from Peterson after she had summoned him into the pharmacy, he didn’t hang on to it for very long. Rather, he immediately took it to the employee break room and dropped it on the table. (He ex- plained, credibly and plausibly in my assessment, that he was uncomfortable as a member of management being in possession of a union petition, and thus simply left it on the breakroom table for employees to deal with in any way they might see fit.166) However, the ever-vigilant Peterson soon entered the 165 See GC Br. 230 fn. 271, where the General Counsel concedes that Peterson was “mistaken” in claiming that she had given Renfree a “copy” of the fax flimsy as it had emerged from the fax machine on September 17, but then argues that “such a mistake on a minor detail does not detract from Peterson’s overall credibility as a witness.” In this latter regard, however, I note that the General Counsel must have be- lieved initially that the “detail” in question was important enough to warrant repeated, specific, and deliberate testimony by Peterson. And I observe, moreover, that a more timely attempt (preferably, during the original investigation) to verify or qualify or disprove Peterson’s ac- count by seeking in advance any petition documents Peterson had fur- nished to Local 588 could have headed off the wholesale confusion in the record engendered by Peterson’s “mistaken” testimony. In addition, elsewhere on brief (at 211), the General Counsel still unaccountably clings to Peterson’s testimony that she did, in fact, make a “copy” of the “original” fax flimsy as it emerged through the fax machine on September 17, even though no such copy was ever produced, and we now know that Peterson did not give this supposed “copy” to Renfree and no such copy was in Local 588’s files, either. Finally, I am not as convinced as the General Counsel is that Peterson’s “mistake” involved merely a “minor detail.” Rather, as I discuss further below, that Peter- son, in fact, acquired the original fax flimsy on September 21, now containing Gordon’s and Brovald’s signatures, casts serious doubt on other aspects of Peterson’s testimony relied on by the General Coun- sel—particularly her claim, wholly denied by drug clerk Gordon, that Gordon voluntarily surrendered that document to Peterson on Septem- ber 21, after producing it in a “folded-up” form from her vest pocket, and that it was Gordon who “crossed-out” the two signatures, before Peterson made a “copy.” 166 Counsel for the General Counsel finds this explanation unpersua- sive. Her doubt, however, is again grounded in speculation. Thus, she imagines (Br. 220) that if Renfree had “really wanted not to get in- volved, he would have taken the petition to his superiors, Drug Center Manager Cooper or Senior Assistant Manager Porter, or he would have called human resources to find out what to do[.]” Then, having satisfied herself by such reasoning that Renfree must have been attempting to conceal a more sinister motivation, the General Counsel speculates that Renfree’s real intention in dropping the petition on the break room table was to facilitate the continued circulation of the petition by “any of the four drug clerks besides Peterson who were scheduled for lunch between 11:30 a.m. and 2 p.m[.]” Then, the General Counsel observes that “Renfree might have gotten away with it except that he was caught by Peterson and forced to call human resources.” However, as already stated, it strikes me as wholly believable that Renfree would initially doubt the appropriateness of his doing anything with the petition other than dropping it like a hot potato, and thus would do exactly what he admittedly did, and for the very reason he asserted. In any case, what remains more importantly uncertain is the General Counsel’s reasoning break room, noticed that Renfree was still in the room and had simply left the petition on the table, and renewed her objections to the petition’s presence in the store, considering that it had arrived in violation of “company policy.” She told Renfree he should call a named person in “Human Resources” to report the breach of company rules and get instructions on what to do with the petition. (Perhaps she specifically suggested that Ren- free call “Dan Abfalter,” but if so, she showed a surprising familiarity with recent shifts in the headquarters hierarchy, under which Abfalter had ascended to the position vacated by Kenneth Collings only weeks earlier.) Renfree then retook pos- session of the petition and walked away with it. He soon re- ported back to Peterson that he had called headquarters and had followed someone’s instructions at headquarters to “remove” the petition. As I have already found, Renfree had, in fact, called head- quarters, and had, in fact, placed the petition in Cooper’s desk drawer. But as I have also found, the same petition was back in Gordon’s hands by September 20. The question how the faxed petition later got into Gordon’s hands is a prickly one, and be- fore penetrating that thicket, I must address another body of disputed claims made by Peterson about an additional set of transactions that supposedly occurred on September 17, in the midst of Peterson’s serial confrontations with Renfree over the arrival and status of the offending petition: Peterson states that, after initially handing the petition to Renfree, and before she discovered it on the breakroom table, Renfree separately came into the pharmacy to tell her that she had a call on the store’s OPX phone in the backroom. (Renfree denied, categorically and specifically, that any such intervening transaction oc- curred.) Then, says Peterson, she picked up the OPX phone and spoke to someone who identified himself as “Ed Wright,” and whose voice Peterson claims independently to have recognized as Wright’s, based on her attendance at the IDCA dissident meeting chaired by Wright at the Roseville Eagles Hall 5 months earlier, on April 25. She further testified that, during the call, she extracted from Wright an admission that he had him- self faxed the petition to the Rancho Cordova store, and that she then chided him for thus violating “company policy,” fur- ther stating to him, “Haven’t we had enough of this in-house union stuff?” Wright flatly asserted that the alleged conversation “never happened.” He denied having ever called Peterson, or having underlying her accusation that Renfree was trying to “get away with” something by leaving the petition on the table until “caught” by Peter- son. “Get away with what?” is the real question here. And the only answer I can divine from the General Counsel’s more sinister accusa- tion is that the prosecution must be assuming that Renfree operated under a statutory duty, once having been advised by Peterson that the petition had arrived by fax, to confiscate the offending document and take whatever other steps necessary to ensure that it could never go into “circulation.” However, as I discuss in my conclusions, this is a strange conceit, especially when advanced by a representative of the General Counsel, and one which again is not supported by any citation to rele- vant authority. Thus, I regard it as merely ironic that Renfree soon did what the General Counsel apparently presumes he had a duty to do immediately after Peterson first brought the petition to his attention— impound the petition and take it out of circulation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476 had any such conversation in any context with Peterson, whom he admittedly knew, and vividly remembered from the April 25 Eagles Hall meeting, as a particularly vocal opponent of his and others’ efforts to undo IDCA’s alliance with Local 588, and as an evidently strong adherent of drug clerk representation by Local 588. Peterson’s account of the supposed “Ed Wright” conversa- tion raises obvious questions about the likelihood that any such transaction ever occurred: Why would Wright place such a call to Peterson, known to Wright as an ardent supporter of Local 588? Even assuming, arguendo (as Peterson’s account strongly implies), that Wright had been made aware by Renfree before Peterson got on the line that Peterson had made a fuss over the petition’s arrival, what could Wright possibly expect to have accomplished by speaking personally to Peterson? (To persuade Peterson, somehow, to become mute on the existence of the faxed petition? Or perhaps persuade her, somehow, to encour- age store management to allow its circulation? I doubt it deeply.) And why, above all, would Wright ever “admit” to Peterson that he had himself been the party who had faxed the petition into the store? (Wright independently denied having faxed the petition to Rancho Cordova.) Counsel for the General Counsel acknowledges and seeks to address these probability questions in a lengthy and defen- sively-couched footnote on brief. ( “Corrected” fn. 245, spilling over from p. 212 onto p. 213.) She first stresses, however, that “the Judge need not resolve this credibility dispute.” And it is only after making this unexplained disclaimer that she never- theless advances a series of speculations leading to her (equivo- cally-stated) conclusion that Peterson’s claims about the “Ed Wright” phone call were “not so improbable,” after all. In my view, however, credibility disputes like this bear heavily on Peterson’s overall reliability, and, in turn, on the merit of claims made by the General Counsel that assume that Peterson otherwise testified truthfully. Accordingly, declining the Gen- eral Counsel’s implicit invitation to set the dispute aside as unimportant, I record my judgment that Peterson’s account of a supposed Renfree-facilitated phone call from Wright deserves no credence whatsoever. This judgment is based in part on my overall assessment, recorded earlier, that Peterson was a gener- ally unimpressive, biased, and even vengeful witness, prone to exaggeration and invention. It is based further on the denials convincingly uttered by Renfree and Wright as to these sup- posed transactions. It is based further on the inherent improb- ability that Wright would have placed any such call to Peterson, much less that he would have confided to her (even if true) that he had himself faxed the petition into the Rancho Cordova store. Indeed, I think Peterson’s claims as to these supposed transactions were simply inventions, and another illustration of Peterson’s seeming willingness, even eagerness, to supply oth- erwise missing evidentiary “details” that might be useful to the prosecution—in this case, to supply a basis for arguing the existence of affirmative, conscious collusion between Wright and Second Assistant Renfree. c. The disputed events of September 21 and thereafter Gordon was again in possession of the “original,” fax-flimsy petition on September 20. She signed it that day, and so did Brovald. I again pass over for the moment the abiding myster- ies surrounding the reemergence of the petition in Gordon’s hands. I focus instead on Peterson’s account of what happened on September 21, when she discovered that the petition had resurfaced and was being circulated by Gordon, and Peterson’s further descriptions of subsequent events, all of which accounts are disputed at every juncture by the others whose statements and actions Peterson described: (i) Supposed Peterson-Gordon confrontation In substance, Peterson testified as follows: On the afternoon of September 21, Peterson heard from another drug clerk that Gordon was circulating a UDCEA petition. Peterson then sought out Gordon in the camera department where Gordon was then working, and asked her if she had a petition. Gordon confirmed that she did, and produced it in a folded up form from her pocket. Peterson discovered that the petition was the same fax-flimsy document she had intercepted on September 17 and given to Renfree, now supplemented by Gordon’s and Brovald’s September 20 signatures. She lectured Gordon that it was “improper” for her to have the petition and asked how she had gotten it. Gordon replied that Renfree had given it to her. Peterson asked to make a copy of the petition and Gordon con- sented. However, before Peterson went to a copy machine to make the copy, Gordon first crossed out her own and Brovald’s signatures on the original document. Then. says Peterson, she made the “copy” which (as she later erroneously testified) she subsequently gave to Local 588’s Cory. (We know now that Peterson actually retained the fax-flimsy “original” supposedly surrendered by Gordon, and furnished that original to Local 588’s Cory, by which point Gordon’s and Brovald’s signatures had been crossed out on the original.) Moreover, by her account she apparently made a second “copy” at the same time, for she also identified General Counsel’s Exhibit 46 as a “copy” she had made and retained, and had attached to her December 16, 1993 affidavit to the Board. (That exhibit, as previously noted, is a copy of the front page of the original fax-flimsy belatedly discovered in Local 588’s files, i.e., GC Exh. 103. And GC Exh. 46 copy was clearly taken only after someone had already crossed out Gordon’s and Brovald’s February 20 signatures on the “original” from which that copy was taken.) Gordon denied participating in any such transaction with Pe- terson. There is no obvious reason to doubt Gordon on this point, and there are many reasons to doubt Peterson’s account. First is the improbability that UDCEA adherent Gordon, who presented as a feisty and not easily-cowed individual, would have submitted with such docility to any such lecturing and grilling at the hands of coworker Peterson, known to Gordon as a Local 588 enthusiast. Second is the even greater unlikelihood that Gordon would have (conveniently) “admitted” to Peterson that she had obtained the petition from Renfree. Third is the still-greater improbability that Gordon would have knowingly or willingly surrendered to the hostile Peterson what we know now was the “original” petition document. Fourth is the pro- found improbability that Gordon would have been the one to cross out her own and Brovald’s signatures on the original document, especially that she would have done so before the point when Peterson made one or more “copies.” (We know RALEY’S 477 now that the four-signature petition copy faxed by Gordon to Sacramento on September 22 (GC Exh. 54, Bates 771) included the intact signatures of Gordon and Brovald as they had ap- peared before someone crossed-out their signatures on the “original” as it appeared by the time Peterson gave it to Local 588.) And if, as Peterson insists, Gordon herself crossed out the signatures on what proved to be the “original” before surrender- ing it to Peterson for “copying,” this would leave unexplained how the “copy” that Gordon obviously used thereafter to obtain two additional signatures before faxing it to headquarters failed to contain the cross outs over her own and Brovald’s signatures. Thus, I place no reliance on Peterson’s inherently dubious and independently unreliable claim that Gordon surrendered to Peterson what proved in fact to be the “original” petition. I remain equally unpersuaded by her claims that Gordon “admit- ted” that Renfree had given the petition to her, and likewise wholly dubious that it was Gordon who did the crossing outs on that original that existed by the point Peterson passed it on to Local 588.167 (ii) How did the petition get back in Gordon’s hands? How Gordon got the petition is the subject of much conflict- ing and occasionally confusing testimony. I doubt that the an- swer ultimately matters. And I note that the General Counsel, who posits as an answer that Renfree was himself the key in- termediary, has never explained why even this particular an- swer might make a legal difference. (Again, I can only con- clude that the General Counsel’s working premise, however unstated, is that Rancho Cordova management owed—and 167 Ignoring the improbabilities and plain discrepancies in Peterson’s account of how she acquired the petition from Gordon and who did what with it, the General Counsel insists that “[a]lthough Gordon de- nied that she gave Peterson a copy [sic] . . . that denial should be dis- credited because there is no other plausible explanation for how Peter- son obtained the petition with only two signatures on it.” GC Br. at 231. I think that by claiming that Peterson’s “explanation” is the only “plau- sible” one available on this record, counsel for the General Counsel is simply betraying an uncharacteristic lapse in her otherwise demonstrat- edly fertile capacity for speculation. Another possible scenario, one that I think is equally “plausible” in the light of all the known facts (but no more so), is this: The vigilant Peterson, determined to thwart any circu- lation of the offending faxed petition, and alerted by rumors on Sep- tember 21 that Gordon was circulating a UDCEA petition, again inter- cepted the petition, now containing two signatures, but without Gordon knowing about it (perhaps after finding the original unguarded in the breakroom or elsewhere, or temporarily in the hands of another em- ployee). Then, having intercepted the fax-flimsy “original,” which she would retain and furnish to Local 588 as “evidence” of Raley’s conniv- ance, Peterson quickly took it to a copy machine and made a copy with the two signatures still intact. Then she returned the copy of the unal- tered original to the place where she had found it or to the person from whom she had acquired it, following which the copy went back into circulation and ended up being faxed by Gordon to Sacramento head- quarters, where it emerged from the headquarters fax machine as GC Exh. 54, Bates 771. In the meantime, Peterson, now in possession of the still-intact “original,” and acting in a self-appointed role as both a censor and enforcer of the company fax “policy, ” herself crossed out Gordon’s and Brovald’s signatures on that document, before again copying it in that form (GC Exh. 46), and before passing the original in that now crossed out form (GC Exh. 103) to Local 588’s Cory the same evening. defaulted on—a statutory “duty” in the circumstances to take affirmative and effective steps to confiscate and remove the petition from circulation.) But in this section I will assume that the answer does matter, and in due course below, I will reach provisional findings that strike me as providing the most likely answer. Peterson’s testimony, relied on by the General Counsel, pro- vides one possible answer—that Renfree himself, having ini- tially impounded the faxed petition, later surrendered it to Gordon for circulation. However, I have already rejected Peter- son’s testimony that Gordon “admitted” to Peterson that this had happened. (Accordingly I need not consider this seeming hearsay, much less decide the merits of the General Counsel’s argument that Peterson’s testimony about Gordon’s statement was properly treatable as a no hearsay “admission” of an “agent” of a party-opponent, with “Respondent UWRU/ UDCEA” being the “party,” and with Gordon playing the role of an “agent” supposedly capable of making an admission on the fledgling union’s behalf.) Moreover, the General Counsel does not rely solely on that argument in any case; rather, she relies centrally on Peterson’s further testimony that Renfree himself also “admitted” to Peterson that he had given the peti- tion to Gordon. According to Peterson, this is what happened: On the after- noon of Friday, September 24 (after UDCEA had been recog- nized), Peterson observed Gordon walking into the breakroom and followed her in. Upon arrival, Peterson found Gordon in conversation with Renfree and Cooper. Peterson then con- fronted Renfree in particular, stating that, although he had pre- viously told her that he had removed the petition from the store, she had discovered that Gordon had been circulating it, and that Gordon had already told her she had gotten the petition from Renfree. Peterson then asked Renfree directly if he had given the petition to Gordon, and he answered affirmatively, also confessing to Peterson that he knew it was “wrong” to do this, and that he “should have gotten rid of it.” Renfree directly denied virtually every aspect of Peterson’s account, in both general and specific terms, and he did so with credible conviction. Gordon was never invited, neither during her direct examination by Raley’s counsel, nor on cross- examination, either to confirm or deny Peterson’s testimony concerning the supposed breakroom confession by Renfree. Drug Center Manager Cooper (who generally struck me as a circumspect and occasionally coy witness,168 with few vivid memories of the events in this period), nevertheless effectively denied that any such “confession” transaction as described by Peterson had occurred.169 And Cooper testified more generally 168 Cooper stated that he had learned from Renfree that Renfree had impounded the “fax” that Peterson had complained about, but Cooper professed never to have learned from Renfree or anyone else that the “fax” was a UDCEA petition. However, he eventually conceded, when pressed from the bench about this, that he “assumed” that the fax in question was some kind of “union”-related document. 169 Cooper stated that the only conversation he had with Peterson re- lating to the offending “fax” occurred on the day the petition had first emerged from the pharmacy fax machine, or soon thereafter. He testi- fied that Peterson merely complained on that occasion that Cooper should not be allowing such unauthorized faxes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478 that he had no independent knowledge as to how the petition copy eventually faxed by Gordon to Abfalter’s office might have gotten into Gordon’s hands. In all the circumstances, in- cluding Renfree’s credibly-uttered denial, Peterson’s seeming penchant for invention, and the special unlikelihood that Ren- free would have shamefacedly confessed to the hectoring Peter- son, above all, that he had given the petition to Gordon (even assuming that he had, in fact, given the petition to Gordon), I remain wholly unpersuaded by Peterson’s account. Accord- ingly, if it matters how the petition resurfaced, Peterson’s tes- timony does not supply a reliable answer. How, then, did Gordon end up with the petition by Septem- ber 20? As I discuss below, both Renfree and Gordon denied that Renfree was the intermediary, and Gordon herself claims instead that coworker Eddie Pine (deceased by the time these matters were litigated) brought it to her on that date, but that she was otherwise in the dark as to how Pine might have come into possession of it. However, after considering Gordon’s account in the light of other facts and counterpossibilities dis- cussed below, I regard it as ultimately the most likely possibil- ity that Gordon herself, miffed by news from Renfree that he had impounded the petition in Cooper’s upstairs office, was responsible, either directly or through the agency of coem- ployee Pine, for surreptitiously retrieving it from Cooper’s desk. I begin by reviewing and amplifying on Renfree’s account: of September 17 events: He states that after being confronted twice about the petition by Peterson, and after calling headquar- ters and being advised by a headquarters man to secure the petition in Cooper’s office, and after putting the petition in Cooper’s desk, he was soon confronted by Gordon, who was in an agitated state. In this confrontation, he says, Gordon said she had heard that Peterson had intercepted and made a fuss about a petition coming in over the fax machine, and then repeatedly insisted to Renfree that she had a “right” to see it. However, Renfree states he repeatedly refused Gordon’s demands, and told her finally, hoping to persuade her that he was without power to comply, that he had received, and followed, instruc- tions from headquarters to secure the petition in Cooper’s of- fice. Gordon then walked away. The General Counsel, while clinging to Peterson’s testimony about supposed admissions made by both Gordon and Renfree, nevertheless also appears to embrace Renfree’s testimony that he had some such confrontation with Gordon. Indeed, the Gen- eral Counsel appears now to rely on Renfree’s testimony that he told Gordon during the confrontation that the petition was impounded in Cooper’s office. Thus, at page 224 of her brief, the General Counsel cites Renfree’s latter “admission” as the basis for arguing that even if Renfree did not himself give the petition to Gordon, “what he told her” about the petition’s whereabouts was tantamount to an “open invitation” to Gordon “to go upstairs and get the petition herself.” Lest there be any doubt, however, I regard this “open invitation” theory, which presumes the truth of Renfree’s descriptions of his confron- tation with Gordon, as simply another example of the extreme distances the General Counsel is willing to travel in search of a theory under which Renfree could be said to be “responsible” for Gordon’s acquisition and later circulation of the petition. I have already rejected Peterson’s convenient but improbable testimony that Renfree effectively confessed to her that he had given Gordon the petition. Renfree’s testimony was straight- forward and delivered with conviction: Thus, I would credit him that he did not in fact give the petition to Gordon, indeed, that he rebuffed her demands to furnish it to her, and that the last he ever saw of it was on the morning of September 17, when he placed the unsigned fax flimsy in Cooper’s desk drawer. How, then, did Gordon end up with the petition? The record suggests only two remaining possibilities: either (1) some other manager, i.e., Cooper or Porter, removed it from Cooper’s desk and gave it to Gordon (or Pine); or (2) an employee removed the petition from Cooper’s desk. The former possibility was never shown to have been more than just that, a mere possibil- ity. In fact, the General Counsel made no attempt to prove or argue that anyone other than Renfree was the culprit (either directly or by “open[ly] invit[ing]” Gordon to retrieve it). Moreover, the possibility that either Cooper or Porter later fur- nished the petition to Gordon was specifically and credibly denied by Cooper and Porter, and by Gordon, as well. Accord- ingly, there is no credible basis in this record for finding that Renfree was the enabler, and no basis whatsoever for finding that a manager other than Renfree played such an intermediary role. The latter possibility, however, that an employee retrieved the petition from Cooper’s desk, was never specifically contra- dicted by Gordon. In fact, Gordon’s own account, in which she claims Pine was the intermediary, implicitly tends to confirm the latter possibility. When Gordon was called to the witness stand, she was no longer working for Raley’s, and had been in retirement status for more than 2 years. She testified, in substance, that she first learned from fellow drug clerk (and eventual petition-signer) Eddie Pine that Peterson had intercepted a faxed UDCEA peti- tion and had made a “commotion” about it to management. She specifically denied that Renfree gave her the petition. However, she never specifically denied that she had angrily confronted Renfree and demanded that Renfree give it to her. Moreover, her sketchy account implicitly supports an interpretation that she must have known that the petition was somewhere in the store, and had not been destroyed or sent elsewhere, knowledge that cannot easily be explained unless we accept the truthful- ness of Renfree’s account of his confrontation with Gordon. Thus, Gordon testified as follows during direct examination by counsel for Raley’s: Q. At some point in time, did you obtain the petition? A. Yes. Q. How did you obtain the petition? A. To the best of my knowledge, Eddie Pine, another employee there, brought it to me. As I was going on my break, I asked that he bring it, and he brought it to me. Seemingly, Gordon knew enough about the petition’s where- abouts by September 20, to “ask Eddie Pine” to “bring it” to her. Moreover, Pine was not himself shown by any evidence of record to have been independently knowledgeable about the petition’s whereabouts; yet, somehow as a result of the sup- posed “request” by Gordon, Pine was able to quickly locate it RALEY’S 479 and bring it to Gordon. Apparently, therefore, Gordon, based on her confrontation with Renfree, knew where the petition was reposing, and took steps to retrieve it. And whether she enlisted Pine in the purloining, or did the job herself but sought at trial to divert suspicion to the now-deceased Pine, is in the end the only question that cannot be answered withy any degree of certainty. But clearly, I don’t need to decide whether a now- retired employee or a now-dead employee did the job; all that ultimately matters is that the credible record preponderates in favor of a finding that an employee did the job on his or her own, and not with the connivance or knowledge of Renfree or any other manager. This latter being the only finding I am willing (or reasonably able) to make on this record, there remain only two questions of fact worth further consideration: Did Gordon, having obtained the petition on September 20, thereafter solicit any employees to sign the petition at times when she or the solicitee was sup- posed to be working? If so, can Rancho Cordova management be found to have known of, condoned, or otherwise connived in any such worktime solicitations by Gordon. The General Coun- sel repeatedly states in conclusionary terms on brief both that Gordon did engage in worktime solicitations and that company managers knowingly “allowed” this. However, the short answer to both claims is that there is no reliable evidence to support either one. (iii) Did Gordon do any worktime soliciting? There is no credible evidence to support any assertion that Gordon conducted worktime solicitations. Not only did Gordon deny it,170 but the testimony of Peterson and Bever, relied on by the General Counsel, fails to establish it with anything resem- bling convincing clarity. Peterson’s only contribution in this respect was to report an observation she supposedly made on the afternoon of September 22, sometime between 1 and 2 p.m. (i.e., at a point conveniently close to the 1:44 p.m. time when Gordon faxed the 4-signature petition to Abfalter’s office). On this occasion, says Peterson, she observed Gordon talking to drug clerk Todd Strahl, in a shopping aisle, with a paper in her hand. The ever-watchful Peterson drew the conclusion that Gordon was soliciting Strahl’s “vote.” However, she admittedly couldn’t hear the Gordon-Strahl conversation and her belief in this regard deserves no weight. Moreover, she admittedly had no idea whether Strahl was scheduled to be working or on break at the time, although she “believed” that Gordon was not then on a break, and should have been working in the camera 170 The General Counsel “urges” (Br. at 217–218) that I “discredit Gordon’s testimony that she solicited Neely, Pine and the other em- ployees to sign the petition only when she and they were on breaks or at lunch.” Put another way, the General Counsel wants me to find affirma- tively, based on a discrediting of Gordon, that Gordon did conduct worktime solicitations. But this is just another example of the General Counsel’s frequent attempts to shift to the respondent parties the burden of establishing the nonexistence of facts (here, worktime solicitations by Gordon, moreover, worktime solicitations known to her local man- agers) that it was the General Counsel’s burden to establish by a pre- ponderance of the credible evidence. As further noted below, the Gen- eral Counsel made no such showing; accordingly, I need not independ- ently assess Gordon’s own credibility in denying that she engaged in worktime solicitations. department. But again, there is no independent reason for cred- iting Peterson’s “beliefs” about such matters. Bever’s recollections, apart from substantial doubts I inde- pendently retain about their truthfulness (noted below and in the next section), did not get the General Counsel any further in establishing that Gordon used her own or others’ worktime to solicit signatures on her copy of the UDCEA petition. In es- sence, Bever’s account is that on some date in “September” (a quite uncertain date, which Bever agreed could as easily have occurred after the September 23 recognition as before) Gordon approached Bever while Bever was working in the backroom marking merchandise. Gordon was bearing a folded piece of paper in her hand, says Bever, and asked Bever if she was “for” Local 588. Bever says she replied that she was, whereupon Gordon turned and walked away. Gordon denied thus approaching and questioning Bever, whom she said she avoided in her soliciting of UDCEA petition signatures because she already knew full well that Bever was a Local 588 supporter. Bever herself admitted on cross- examination by UWRU’s counsel that she had previously told Gordon that she was a Local 588 supporter—indeed, that she had also previously disclosed her pro-Local 588 sympathies to many other employees and managers at Rancho Cordova, and that there should have been “no doubt” in the store about her union preference at the time Gordon supposedly approached her. The obvious point disfavoring the likelihood of Bever’s account, therefore, is that there would have been no reason for Gordon to have thus questioned Bever, especially not as a part of Bever’s September 20–22 solicitations to get signatures on the UDCEA petition. Bever was not an impressive witness; her memory was otherwise shadowy about related events occurring in the same period, and her specific account of Gordon’s sup- posed worktime “solicitation” of her (i.e., the momentary and ambiguous exchange just described) was not just inherently improbable in the circumstances, but smacked of improvisation or outright invention, as did her account of a later event sup- posedly involving Cooper and Porter, discussed in the next section. Accordingly, I would not rely on Bever’s testimony to find that Gordon engaged in any worktime solicitations. (iv) Did any managers believe that Gordon was engaging in worktime solicitations? Or take any steps to permit such solicitations? Not only is there no substantial evidence in the first instance that Gordon conducted worktime solicitations, but there is no evidentiary basis whatsoever for finding that any Rancho Cor- dova managers knew or believed that Gordon was engaged in such activities, even if they did occur. (Even if I were to give more credence to Peterson’s various accounts of discussions with local managers than I am otherwise inclined to give, there is virtually nothing in her testimony which suggests that in any such discussions she even accused Gordon of abusing her own or other employees’ worktime to solicit petition signatures. Rather, the burden of Peterson’s testimony as it relates to sup- posed discussions with managers is that she complained that Gordon should not be allowed to circulate the rule-offending faxed petition at all.) Moreover, the complaint does not allege that Rancho Cordova managers “allowed” Gordon to “circu- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480 late” her petition during worktime; rather, it only alleges that they violated the Act by “allowing” Gordon to “circulate” the petition, period. However, seemingly in an effort to establish that local man- agers were, at least, disposed to permit and even to facilitate worktime solicitations by Gordon, the General Counsel pre- sented Bever’s additional testimony about another supposed event: Bever testified that on the same day (whenever it was) that Gordon approached her in the backroom and asked her if she was “for Local 588,” she later became privy to a conversa- tion in the same backroom between Drug Center Manager Coo- per and Senior Assistant Porter. This is how the conversation went, according to Bever: Cooper asked Porter, as the latter entered the backroom, whether Porter planned to “take Ruthie out of camera.” Porter answered, “I don’t know. Why?” Cooper replied, “So she can continue her survey.” Then Bever says she interrupted the two managers and asked, “What survey?” but didn’t receive an answer, prompting her to ask further, “Do you mean the petition?”—to which Cooper supposedly replied, “Well, I don’t know. I’m not supposed to know about this stuff.” Bever’s account was almost literally the same every time she was asked to give it, starting with the affidavit that she gave to a Board agent in December 1993 (which Bever acknowl- edges was taken in Peterson’s presence), and continuing through her direct and cross-examinations during the trial. Strikingly, though, Bever never reported in her woodenly- repeated recitations of the supposed event any reply that Porter might have made to Cooper’s supposed suggestion, or any other denouement to the supposed exchange of words between the managers. Moreover, Bever never claimed to have thereaf- ter observed Gordon conducting any “survey,” petition-related or otherwise. But the absence of evidence that any such reas- signment scheme was ever agreed to by Porter, much less im- plemented by her or Cooper or anyone else, is dismissed as a matter of no concern by the General Counsel, who simply states in this regard (Br. at 217, emphasis added), “Cooper’s attempt to have Porter arrange to allow Gordon to circulate the petition while she should have been working, whether successful or not, demonstrates that Cooper was aware that Gordon was circulat- ing the petition and that he wanted to help her to [do] this.” Again, I remain quite unpersuaded: As noted previously, both Cooper and Porter, like Renfree, denied ever being aware even that Gordon was “circulating” a petition. More important, both Cooper and Porter denied ever having any such conversa- tion as described by Bever, and further denied ever having ac- tually reassigned Gordon from the camera department to permit her to conduct a “survey, petition-related or otherwise. Gordon, too, denied ever having been reassigned for purposes of any “survey,” petition-related or otherwise. Considering these credibly-uttered denials, the ambiguity of Bever’s testimony in the first instance, and the independent improbability that Coo- per and Porter would have discussed any scheme to help Gordon in her petition-circulation efforts in the presence of Bever, known to both of them as a Local 588 supporter,171 I 171 The General Counsel recognizes the latter improbability, but again seeks to explain it away in ludicrously speculative terms—terms, moreover, which are themselves mincingly equivocal, due to counsel’s treat Bever’s purported recollection of the incident as another likely invention on her part. 4. Analyses; conclusions of law I will address below one theory of violation which seems to have informed the paragraph 22 count and the General Coun- sel’s claims from the start, even though it was never explicitly argued by the General Counsel. I will also address another the- ory vaguely introduced by the General Counsel on brief, but which I am persuaded amounts to an afterthought, and an at- tempt to justify the existence of the count without ever address- ing the issue it raises. Moreover, I regard this afterthought the- ory as not being fairly encompassed by the allegations of para- graph 22, indeed, one which amounts in my view to another, sub silentio attempt by the General Counsel to amend the com- plaint. Here, however, I focus chiefly on the facts which neces- sarily must be found in the end for either such theory, or any other theory, to have any merit. Whatever else may be murky about the General Counsel’s theory or theories of violation, it clearly appears from counsel for the General Counsel’s extensive and highly-editorialized discussions on brief of the “facts,” and in her more abbreviated concluding summary of them as set forth at page 337 of her formal “Argument,” that the Government’s theory of violation presupposes the existence of facts that would show that Rancho Cordova managers not only “allowed” Gordon to “circulate” the petition, but took affirmative steps to help her in that enter- prise, including by furnishing her with the once-impounded petition, and by “allowing” her to circulate it on her own or other employees’ worktime. But if this is the prosecution the- ory, the evidence will not sustain it. Thus, reiterating what I have previously found: The credited record will not support a finding of fact that any member of Raley’s management at Rancho Cordova, or elsewhere, ever knew that Gordon had circulated the petition copy that Abfalter received at headquar- ters on September 22. Accordingly, the credited record cannot support any claim that company managers “allowed” Gordon to circulate the petition. Still less would the credited record allow a finding that company managers affirmatively “assisted” Gordon in her circulation of the petition. Not only have I found no credible evidence that any managers helped Gordon acquire possession of the petition, I have further found no credible evi- dence that company managers were aware that she had acquired it, much less aware that she was circulating it. Finally, for rea- sons previously noted, I have found no credible evidence that Gordon solicited petition signatures during worktime, much resort once more to a variant of the “not un-“formulation. Thus (Br. at 217 fn. 253): “It is not implausible that Cooper would conduct this conversation with Porter in front of Bever, a known Local 588 sup- porter, because he was using ‘code’ words and would have had no reason to think Bever knew what he was talking about.” I see. Cooper was intentionally speaking in “code” to Porter, a code which, by Bever’s account, Porter herself did not seem to understand, but which Bever was nevertheless readily able to decipher as a refer- ence to the “petition,” even though Cooper is presumed by the General Counsel to have believed that Bever would not be able to decipher the “code” words, but that Porter would. RALEY’S 481 less evidence that company managers were aware of or be- lieved that she was conducting worktime solicitations. I have suggested, citing the averrals made in paragraph 22 as joined to various characterizations of the facts stressed by the General Counsel on brief, that the theory apparently underlying the paragraph 22 count is that “Raley’s” (i.e., Renfree) owed a statutory duty to confiscate the petition that arrived by fax at Rancho Cordova “in violation of company policy,” and breached that duty by thereafter “allowing” it to get into Gordon’s hands for circulation. This theory, however, is never articulated, much less defended by the General Counsel in its own terms. It is also a fatally flawed theory in my view, even though, ironically, the headquarters official with whom Renfree spoke on September 17, seems to have likewise assumed that Raley’s operated under a “duty-to-confiscate” in the circum- stances, and thus advised Renfree to impound the petition in Cooper’s office. Although both the General Counsel and Raley’s apparently have assumed that Raley’s operated under a duty to confiscate the offending faxed petition, neither party has cited any legal authority supporting any such proposition, and I have discov- ered no such authority in independent research. By contrast, research shows that the Board has frequently held that an em- ployer violates Section 8(a)(1) by confiscating union cards, petitions, or other such printed materials being circulated by employees or otherwise discovered in the workplace. See, e.g., Nashville Plastic Products, 313 NLRB 462 (1993); BRC In- jected Rubber Products, 311 NLRB 66, 74 (1993); Photo- Sonics, Inc., 254 NLRB 567 (1981); Elias Bros. Big Boy, 137 NLRB 1057, 1075 (1962), enfd. 325 F.2d 360 (6th Cir. 1963). This is hardly surprising. Such confiscations plainly “interfere with” employees’ presumptive Section 7 rights to circulate union petitions or other such printed materials among their coworkers. It deserves emphasis, nevertheless, that although Section 7 generally protects employees’ rights to circulate union petitions or other such printed materials at their workplace (subject only to the employer’s right to limit such activities to nonworktimes and nonwork areas), this protection has no presumptive applica- tion to an employee’s cooptation of the employer’s internal communications media (fax machines, in this case) to transmit such materials to their coworkers. Rather, the employer may lawfully prescribe that its fax machines be used for company business-only, and may lawfully discipline employees for vio- lating the rule, so long as it does so even-handedly, uninflu- enced by any “union” content in the material being faxed, or the “union” identity of the employee doing the faxing. However, in none of the cases cited previously (nor in any other case that I have discovered) has the Board even suggested that an employer’s right to discipline rule violators in such situations includes the “right” (still less the “duty”) to confis- cate union petitions or other such materials based simply on the fact that the documents may have gotten onto the employer’s premises in violation of a company rule or policy. (In fact, so far, the Board does not appear even to have confronted the question, much less to have held that an employer commits unlawful “assistance” when it “fails to confiscate” a union peti- tion whose faxed arrival may have involved a “violation of company policy.”) Again, there would appear to be good reason for the absence of any such holding: Confiscation in such in- stances has the necessary effect of preventing employees from further circulating the petition between and among themselves by protected means, and the “interference” with the exercise of such protected rights necessarily attending such confiscations is not outweighed in the statutory scheme by any obvious legiti- mate, nondiscriminatory business need of the employer. Pre- sumably, the employer can enforce its “business-only” fax rule effectively by means other than taking the faxed petition out of further circulation, either by republishing the rule in the face of apparent violations (as was Raley’s historical practice), or, in perceived cases of “abuse,” by tracking down and disciplining the wrongful fax user according to a nondiscriminatory disci- plinary scheme (which had never been Raley’s practice, but which occurred for the first time after Wright confessed that he had used company phones and fax machines in aid of his UDCEA organizing drive). And it would be an unusual case, indeed, where it might be found that confiscation of the offend- ing union petition itself was the only effective way to enforce the employer’s rule. Moreover, that this is not such a case seems clear. There is much evidence that employees had vio- lated the “business-only” fax rule in the past by faxing jokes, cartoons, recipes, etc., and no evidence that Raley’s had any practice of confiscating these materials as a disciplinary device to enforce its rule. As I see it, therefore, any theory that Rancho Cordova managers operated under a duty to confiscate the peti- tion that emerged from the pharmacy fax machine on Septem- ber 17, is wrongheaded from the start. The General Counsel muddily introduces for the first time in her argument a “discrimination elsewhere”-theory of violation, one which again allows the General Counsel to sidestep the legal question raised by the paragraph 22 count in the com- plaint, namely: Why is it “unlawful assistance” for an employer to “allow” employees to “circulate” a union petition? Indeed, under this newly-introduced theory, the General Counsel may even be conceding that there was nothing unlawful, after all, about the supposed actions of the Rancho Cordova managers, at least not when considered in isolation. Thus, in her summary concluding arguments at pages. 337– 338 of her brief, the General Counsel needlessly reminds us (as she does throughout her discussions of all other complained-of events, as well) that the “conduct” of the Rancho Cordova managers “can not be analyzed in a vacuum.” She then con- trasts “Raley’s” supposed “allow[ing]” of Gordon to circulate the UDCEA petition among Rancho Cordova employees “while they were working” (sic), and “Raley’s” further allowing of Wright to do the same thing at Benicia (discussed, infra) with a series of supposed unlawful acts elsewhere. (These include claims which, with insignificant exceptions, I will find were either not credibly shown to have occurred, or, if they occurred, were not violations.) Then, after thus summarily referring to a variety of actions or supposed actions taken by managers else- where, the General Counsel ends her discussion with the fol- lowing conclusionary assertion (emphasis added): In view of Raley’s other acts of assistance to UDCEA, by Cooper, Porter, and Renfree allowing Gordon to solicit em- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482 ployees to sign the UDCEA petition, Raley’s provided an un- fair advantage and unlawful assistance to UDCEA. This line of argument clearly amounts to an attempt to slip past legal questions that were put into issue by the complaint, by interjecting a “discrimination elsewhere”—theory as a basis for finding merit to paragraph 22’s attack on the conduct de- scribed therein. The attempt is, again, both overreaching and rejectable on its own merits: First, the complaint pleads the conduct of Rancho Cordova managers alleged in paragraph 22 (“allowing” employees to “circulate” the UDCEA petition) as a distinct, stand-alone violation—not merely as anecdotal evi- dence to be cited in support of an independent claim that “Raley’s” gave UDCEA an “unfair advantage” when its man- agers at certain other stores allegedly failed to honor the Sec- tion 7 rights of Local 588’s employee-supporters. Second, even this belated and muddy formulation of a theory presupposes at a minimum that Raley’s “allowed” Gordon’s circulation of the petition. And the simple rebuttal to this theory, therefore, is that I have found no such evidence. Thus, even if (contrary to my findings, infra) managers at other stores engaged in a pattern of unlawfully restricting employees from engaging in activities in support of Local 588, such unlawful acts of discrimination elsewhere could not reasonably be invoked as a basis for find- ing that Raley’s acted unlawfully at Rancho Cordova by “al- lowing” employees in that store to do that which the Act re- quired Raley’s to “allow,” i.e., to “circulate” UDCEA petitions. Accordingly, although the General Counsel’s discrimination elsewhere-theory invokes facts and circumstances yet to be narrated and analyzed, I will give it no further consideration as a basis for finding merit to the allegation in paragraph 22—the substance of which is that Raley’s independently committed an act of unlawful assistance by “allowing” Rancho Cordova em- ployees to “circulate” the UDCEA petition. That count lacks merit for the reasons previously stated. Therefore, I dismiss it, and I reject, as well, the General Counsel’s contention that the four Rancho Cordova petition signatures cannot be counted as evidence that UDCEA represented an “uncoerced” majority. B. Alleged Discriminatory Instructions to Rohnert Park Employees In section V, infra, I will deal with alleged discriminatory denial-of-access counts, including those alleged in paragraph 23(a) dealing with Rohnert Park Drug Center Manager Kiehl- meier’s run-ins with Local 588 Representative Joseph Daly. Here, I dispose of an independent count involving Kiehlmeier, paragraph 23(c), which alleges as follows: About an unknown date between about September 15 and September 23, 1993, Respondent Raley’s, by Rob Kiehlmeier, at Respondent Raley’s Rohnert Park, Califor- nia store #377, at a time when Respondent UWRU/ UDCEA did not represent a majority of Respondent Raley’s employees, told employees that they were not al- lowed to speak to representatives of Local 588 in the store on company time, while Respondent Raley’s concurrently allowed representatives of Respondent UWRU/UDCEA to use Respondent Raley’s facilities. I permitted the General Counsel to amend the complaint to add this count after the trial opened. It is based solely on the controverted testimony of drug clerk Cindy Albrecht (nee Shepard, the surname she was using in September 1993, and the name I will use when referring to her below) concerning what Kiehlmeier said in a meeting with employees. Before reviewing Shepard’s account, I will set forth below my more general findings about the setting: Everyone agrees that Kiehlmeier conducted two meetings with different groups of Rohnert Park drug clerks on the same day during the organizing window period. Shepard was unsure of the date, but I find, crediting Kiehlmeier’s memory as the most reliable, that Kiehlmeier conducted these meetings at the end of the first week following Eidam’s disclaimer, on either Thursday, September 16, or Friday, September 17 (i.e., in the week prior to his encounters with Local 588 Representative Daly, discussed in sec. V). His primary agenda in each meeting, as I find from his own accounts and from the harmonious ac- counts of employee-witnesses Carol Evans and Melanie Mon- eymaker, was to communicate the messages to employees that Abfalter’s September 16 memos had encouraged him to trans- mit. Thus, I find that in each meeting he informed the drug clerks, in substance, (a) that IDCA had disclaimed interest in representing them; (b) that the disclaimer would have no effect on the scheduled pay increase that had been previously an- nounced, nor on the retroactive pay component; (c) that a new union was being formed; and (d) that it was up to the drug clerks themselves to decide whether to select that union or any other union as their representative. I further find from the same sources that in these meetings Kiehlmeier also made reference to Local 588’s and the “new union’s” likely rival organizing efforts (perhaps referring to Local 588 in the old-fashioned way, as the “Retail Clerks”). I further find that, in this context, he made certain statements (described later below) regarding possible in-store contacts between union organizers and drug clerks. In addition, from the same sources I find that in each meeting the time spent by Kiehlmeier covering these agenda items was relatively miniscule compared to the time he spent responding to employee’s questions—more accurately, refusing to answer the employees’ persistent attempts to get further in- formation about the two likely rival unions, and their equally persistent attempts to draw him out on his own feelings and recommendations as to how they should proceed. Thus, I find that in each such meeting Kiehlmeier replied almost ritualisti- cally to such questions, stressing that he could give the employ- ees no information about the competing unions, even if he had such information, which he did not, much less could he offer an opinion how they should proceed, and that the employees themselves must look elsewhere for answers and make up their own minds. Drug clerk Shepard was another of the General Counsel’s late-discovered witnesses,172 and she was an admitted Local 172 Shepard was interviewed by a Board agent and signed an affida- vit on August 14, 1996, 5 days before the trial began, and she signed another statement to the Board, in the form of a declaration under pen- alty of perjury, on September 17, 1996, nearly a month after the trial began. While the record shows that she had previously been a co-signer RALEY’S 483 588 supporter in September 1993. Shepard’s memories of the meeting were obviously limited, and what she did profess to recall struck me as artificially shaped and contrived, to suggest (falsely) that in-store contacts between the drug clerks and Lo- cal 588’s organizers was the primary focus of Kiehlmeier’s remarks in the meeting. This is what she recalled during her direct examination by counsel for the General Counsel: Q. Tell us what Rob Kiehlmeier said and what any employees said during this meeting. A. Rob informed us that IDCEA was on longer repre- senting us, and that Local 588 may try to approach us to sign up for their union, and that we were not allowed to speak with them on company time in the store, but if we wanted to speak with them on our own time outside of the store, we could. And I believe he mentioned something about a new union being formed to pick up where the IDCEA had left off. Q. Do you recall anything else that was said during this meeting? A. No, I do not. (On cross-examination, Shepard recalled a bit more: She was “sure” that employees asked “questions” during the meeting, but she professed not to be able to recall the nature of any of the questions nor of any of Kiehlmeier’s replies.) The General Counsel, relying on Shepard’s selective memo- ries, and on the prosecution’s own strained and unconvincing interpretation of Abfalter’s September 16 memos as amounting to a “road map” for unlawful discrimination, seeks a finding that Kiehlemier expressly prohibited only in-store, worktime contacts between drug clerks and Local 588’s representatives, while implying to the employee-attendees at the meetings that they were nevertheless free to have in-store, worktime contacts with UDCEA’s “representatives.” But this interpretation is not well-supported even by Shepard’s testimony as set forth above. Moreover, on cross-examination Shepard acknowledged that she was not sure that Kiehlmeier ever expressly referred to “Local 588” in this context, and she also acknowledged that Kiehlmeier made no specific reference to the name of the “new union” that was being formed. Moreover, I note the following exchange during her cross-examination by counsel for Raley’s: Q. Isn’t it true that Mr. Kiehlmeier during the course of this meeting never stated or otherwise indicate[d] that it was okay for employees to talk to agents of this new union during company time? A. He never stated that it was okay, no. He did not state that it was okay. In fact, crediting Kiehlmeier and Moneymaker, I find that Kiehlmeier made only the briefest and most generalized refer- ence to the matter of in-store contacts between drug clerks and union representatives. Thus, Kiehlmeier recalled advising em- ployees that they would probably be “approached by . . . repre- of certain group letters addressed to the Regional Director in latter 1993 urging action on Local 588’s charges attacking the recognition, there is no evidence that she had been interviewed by the Board at any time prior to August 14, 1996. sentatives from different unions[,] and on your out of the store time, you were able to speak to anybody you would like to. [But] If they were in the store and interrupted your work, we could not have that happen.” Similarly, during cross-exami- nation by counsel for Local 588, Moneymaker testified as fol- lows: Q. BY MR. JELLISON: When Mr. Kiehlmeier said that you may be contacted by 588 or people from the other un- ion, did he tell you how you should handle that? A. He told us that they may contact us and that we didn’t have to talk to them; that it was our choice. Q. Did he say anything else? A. Not really. Q. Did he say that the Local 588 reps did not have any right to be inside the store? A. No. Q. Did he say that they cannot talk to employees in- side the store? A. No. Q. Did he say that they cannot interrupt the work time of the employees? A. Yes. Q. What did Mr. Kiehlmeier say about that? A. He said I would prefer that they didn’t talk to you while you were on work time. If you chose to talk to them when you are on your breaks, or lunch, or wherever, that is your privilege. Q. Didn’t he actually say you can talk to them outside the store, but you can’t talk to them inside the store? A. No. Considering the relevant record in its entirety, I find, con- trary to the General Counsel’s contentions, that Kiehlmeier’s brief remarks at the meetings bearing on in-store contacts be- tween employees and union representatives did not focus ex- clusively on the likely in-store organizing activities of Local 588’s organizers; rather, they were addressed to any such ac- tivities that might be conducted by representatives of either of the unions vying for representational rights. Much less did Kiehlmeier’s remarks purport to discourage employees only from having worktime conversations with representatives of Local 588 (still less did they convey the suggestion that em- ployees were free to talk to the “new union’s” representatives in the store on their work time). Rather, I find, Kiehlemeier’s remarks indicated only that he didn’t want representatives of either union interrupting employees’ work. Moreover, while such remarks may have implied that he didn’t want employees using their worktime to “talk to” any union representatives, that implication is a far cry from the General Counsel’s claims as to this episode. And in this regard I note also that there is no evi- dence that Kiehlmeier ever scolded any employees when, on at least one occasion in the following week (the first run-in with Daly, as described in sec. V), he did notice that Daly was talk- ing to them. Rather, on that occasion, his critical remarks were addressed only to Daly, not to any employees. Accordingly, insofar as paragraph 23(c) depends for its merit on the notion that Kiehlmeier issued instructions that would reasonably be understood by employees as barring them only from having in- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484 store, worktime contacts with Local 588’s representatives, I dismiss that count as wanting in credible support. Finally, to round out the factual context of all of the prosecu- tion claims associated with Rohnert Park, I note some addi- tional, undisputed facts relating to the nature and extent of rival union activities conducted by employees at that Drug Center: First the Grocery-side employees at the Rohnert Park store were represented by Local 588. Second, as I will describe in section V, infra, Local 588 Agent Daly made several organizing visits to the Drug Center in the period September 20–23, during which visits he talked with several drug clerks on the sales floor, and handed out Local 588 authorization cards to employ- ees, including pharmacy clerk Evans. In addition, both drug clerk Shepard and Manager Kiehlmeier commonly recalled that Local 588 authorization cards were left on the drug clerk break- room table prior to September 23, and Kiehlmeier affirmatively testified, credibly and without contradiction, that he did not remove these cards or otherwise disturb them. In fact, there is no evidence that Kiehlmeier or any other Rohnert Park manager took any steps whatsoever to interfere with in-store employee activities on behalf of either Local 588 or UDCEA. The parties agree that a total of 13 drug clerks were em- ployed at Rohnert Park on September 23 (See GC Exh. 181). Four of these drug clerks signed UDCEA petitions that were in Raley’s hands at headquarters by about 5:10 p.m. on the after- noon of September 23, prior to the point when Abfalter signed and dispatched the letter recognizing UDCEA. (Id; see also GC Exhs. 11 and 54, Bates 750 and 751.) Specifically, in this re- gard, I find as follows: Ed Wright had admittedly visited the Rohnert Park Drug Center briefly (for about 5 minutes) in the late afternoon or early evening of September 21, following his visit to the Windsor Drug Center. He went to the pharmacy counter and gave pharmacy clerk Carol Evans a UDCEA peti- tion form, which she signed in his presence, then retained for further circulation. (There is no evidence that any manager was aware of his presence or activity during the visit.) On the morn- ing of September 23, drug clerks Melanie Moneymaker and Doug Shaw also signed the petition, which remained in Evans’ custody. At 12:49 p.m. that day, the petition containing these three signatures was faxed to Abfalter’s office from the Rohnert Park pharmacy fax machine (GC Exh. 54, Bates 751), appar- ently by pharmacy clerk Evans. Later that afternoon, drug clerk Laura Woolsey also signed the petition; then, at 5:09 p.m., this four-signature version was likewise faxed to Abfalter’s office. This second petition copy (GC Exh. 54, Bates 750) also con- tained an unsigned covering note, appearing on a post-it sticker affixed to the original, stating, “I got one more for you.” The parties stipulated that the note was in Carol Evans’ handwrit- ing. I therefore infer that it was Evans who did the faxing in this instance. It is evident from the accounts of both Shepard and drug clerk Daniel Villalva that they were among a cadre of drug clerks at Rohnert Park who supported Local 588. It is further clear from both of their accounts that, like Peterson at Rancho Cordova, neither of them felt any inhibitions about using their own or another employees’ work time to monitor and oppose UDCEA’s organizing efforts. Thus, Shepard testified that, after hearing from Evans that Ed Wright was “in the pharmacy” and ready to answer any employee’s questions about UDCEA (ap- parently referring to Wright’s brief visit late in the day on Sep- tember 21), she looked in the direction of the pharmacy and saw a man whom she didn’t recognize standing inside the pharmacy prescription area talking to a pharmacist. Shepard then admittedly made contact with the Local 588 Grocery stew- ard, James Orr. (From Orr I find that Shepard used an in-house intercom phone to page Orr, who left his work in the produce area to take the call in the Grocery backroom.) Shepard told Orr over the phone that Wright was in the Drug Center, and Orr immediately walked to the Drug Center, where Shepard met him and pointed to the man inside the pharmacy prescription area talking to the pharmacist. (Like Shepard, Orr recalled that he could only see the shoulders and head of the “man” in ques- tion, due to the fact that an elevated counter/wall behind the pharmacy cash-register counter blocked a more complete view. Unlike Shepard, however, Orr claims—incredibly—to have spontaneously recognized Wright, when he saw Wright more than three years later during a trial recess, as the same “man” whose head and shoulders he had glimpsed momentarily in the pharmacy in September 1993.)173 Orr, who says he had been pre-alerted by Local 588 Agent Daly to report any evidence of Wright’s presence in the Drug Center, then immediately re- turned to the Grocery backroom and called Daly, who himself quickly came to the store and met with Orr, by which time, however, Wright had already left the store. Villalva, admittedly on worktime, entered the pharmacy en- closure on the afternoon of September 23 and asked working pharmacy clerk Evans to show him the UDCEA petition in her possession, which Evans did, showing Villalva the petition now containing four signatures, with Woolsey’s as the last. Then, still later the same afternoon (probably after Evans had already faxed the 4-signature petition at 5:09 p.m.), Villalva (again admittedly on his worktime) approached Woolsey at her work station at the camera counter and questioned her about why she had signed the petition, and sought to persuade her that the employees should get more information and that she should retract her signature. (Woolsey, whose memory as to these matters was both more foggy and more self-serving than Vil- lava’s, believed that her conversation with Villalva about re- tracting her signature occurred while the two were on break in the breakroom. I rely on Villalva’s more specific memory that 173 While Shepard’s testimony circumstantially suggests that Wright was the “man” she saw in the pharmacy (and Wright himself admitted that he might have entered the pharmacy to talk briefly to a pharmacist during his September 21 visit) Orr’s claim that he “recognized” Wright as the same “man” during the trial is wholly unbelievable. And so is the artful caricature (GC Exh. 163) drawn by amateur cartoonist Orr year’s after-the-fact, purportedly based on his “memory” of how the “man” looked when he saw him in the pharmacy in September 1993. Rather, I think the caricature was essentially a fraud—not based on Orr’s mem- ory of the “man” he saw in the pharmacy in September 1993, but on his far more recent memory of how Wright looked in February 1997, when Orr had seen Wright during a trial recess. (The testimony of Wright and other witnesses, supplemented by a 1992 drivers license photo of Wright, credibly shows that Wright had significantly changed his hair- style, and had gained upwards of 60–70 pounds in the intervening years, and Orr’s caricature clearly captured the 1997 Wright, but not the 1993 Wright, in both respects.) RALEY’S 485 his discussion with Woolsey about retracting her signature, and the drafting and signing of the retraction note itself, infra, both took place at the camera counter, while both Villalva and Woolsey were on the clock.) Eventually, Woolsey agreed with Villalva, and the two discussed wording for such a retraction. Then, in Villalva’s presence, Woolsey wrote out, signed, and handed to Villalva a note stating, “To whom it may concern: I wish to withdraw my signature from the petition for Raley’s Clerk Union[sic].” Villalva then promised to find out from Evans the number to which she had faxed the UDCEA petition containing Woolsey’s signature, and to send Woolsey’s retrac- tion to the same number. Villalva then returned to Evans’ workstation within the pharmacy enclosure and described to Evans Woolsey’s wish to retract her signature, following which Evans readily disclosed the fax number she had used to trans- mit the petition to Abfalter. However, it was not until the fol- lowing Monday, September 27, at 5:33 p.m., that Villalva actu- ally followed through by himself faxing Woolsey’s retraction to the number Evans had given him, using a store fax machine to make the transmission. C. September 18 Events at Benicia 1. Introduction and overview Here we reach the centerpiece of the General Counsel’s case, the alleged acts of Second Assistant Wallis at Benicia that are repeatedly invoked in support of virtually every other count in the complaint alleging “assistance” violations at locations other than Benicia. In this regard, paragraph 19 of the complaint alleges as follows: Respondent Raley’s, at Respondent Raley’s Benicia, Califor- nia facility: (a) about September 18, 1993, by Mike Wallis, at a time when Respondent UWRU/UDCEA did not represent a majority of Respondent Raley’s employees: (1) instructed employees to talk to representatives of Respondent UWRU; (2) allowed representatives of Respondent UWRU to use Respondent Raley’s facilities to talk to employees[.] Although there are testimonial disputes about details, the fol- lowing facts are undisputed and will function as my core find- ings: Ed Wright came to the Benicia Drug Center at about 1 p.m. on the afternoon of Saturday, September 18, then soon met upstairs with drug clerk and UDCEA ally Tina Baker, whose records-compiling duties that Saturday required her to use a small, upstairs office, sometimes called the “bookkeeping of- fice” and sometimes just called “Tina’s room.” Another, even smaller “cubbyhole” space, called the “security office” was connected to Tina’s room by a door in the back of the book- keeping space. Wright spent about the next 2 hours within that interconnected suite, and Baker was likewise present at her bookkeeping desk during at least the first hour, but was absent for a substantial part of the second hour, during which she took her scheduled 2–3 lunchbreak. During the 2-hour period, a total of 10 Benicia drug clerks entered the suite, met with Wright, and signed the UDCEA petition, which Baker retained on her bookkeeping desk. All of the first five of these signers were on the job that afternoon, as were three of the latter five signers. (The other two September 18 signers were employees not scheduled to work whom Baker had called at home and urged to come in to sign the petition.) At about the time Wright de- parted the store and Baker was nearing the end of her lunchbreak, Baker took the petition from her upstairs office down to the pharmacy, where, at 2:59 p.m., she faxed the 10- signature petition (GC Exh. 54; Bates 754) to Abfalter’s office in Sacramento. She retained the original petition for further circulation. Six more drug clerks signed the petition after Wright left the store and after Baker had already faxed the 10- signature version of the petition to headquarters. One of these employees signed later on September 18. Two more signed on Sunday, September 19. Three more signed on Monday morn- ing, September 20. At 9:04 that Monday morning, Baker re- faxed the petition, now containing 16 concededly authentic signatures, to Abfalter’s office, where it emerged in the form it appears in General Counsel’s Exhibit 54, Bates 752. Raley’s relied on these 16 signatures when it concluded that UDCEA enjoyed majority support in the statewide unit and thus recog- nized UDCEA. Part-time drug clerk Albert Hernandez was one of the em- ployees who met with Wright and signed the petition during Wright’s Saturday afternoon visit. He was the fourth employee to sign the petition. He was the sole witness called during the prosecution’s case-in-chief to support the allegations of para- graph 19 (other than Wright, called as an adverse witness). And his testimony about a conversation with Second Assistant Man- ager Wallis preceding his meeting with Wright was the sole basis for the allegations of paragraph 19. His testimony about this conversation was both credibly delivered and undisputed, and I rely on him to find as follows: Hernandez came on duty at 2 p.m. At an uncertain point after that (but sometime before 2:59 p.m., as the record independently makes clear) Wallis called Hernandez into the backroom and told him that a “union guy” was “upstairs” and wanted to “talk to” him, and that Her- nandez was free to “go ahead and take all the time [he] need[ed].” Hernandez was then on duty, but he promptly went upstairs to meet with Wright, heard Wright’s organizing pitch for UDCEA, and signed the petition. The General Counsel seeks an ultimate finding that all 16 Benicia signatures on the faxed petition received by Raley’s on September 20, were the tainted products of coercion and other forms of unlawful assistance evidenced by or tracing from Sec- ond Assistant Wallis’ statements to Hernandez. However, the basis for the General Counsel’s position in this regard has rela- tively little to do with Wallis’ statements and actions as re- ported by Hernandez. Rather, the prosecution’s position may be better understood, if at all, only in the light of other, highly controverted features of Hernandez’ testimony. Thus, Hernan- dez testified that, after being advised by Wallis about the pres- ence of a union guy upstairs, he went upstairs to Tina’s room, where he found Wright and a group of three or four other drug clerks talking together around the bookkeeping desk. He stated that he and the others then spent “30 minutes to an hour” talk- ing about UDCEA before the petition was passed to Hernandez for his signature. His descriptions of such a “group meeting” are significantly contradicted by the only other witnesses who DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 486 testified about events at Benicia on September 18—Wright and Baker. For reasons I will discuss after reviewing the facts more thoroughly, I conclude that Wallis’ undisputed statements to Hernandez had no genuine tendency to coerce Hernandez in his admitted choice to go “upstairs,” meet with Wright, and sign the UDCEA petition, and neither did Wallis’ implicit condona- tion of Wright’s presence and “use” of the Benicia Drug Cen- ter’s “facilities” itself implicate Raley’s in an unlawful act. But as I have noted, the General Counsel’s ultimate position that all 16 Benicia petition signatures should be rejected as “coerced” does not depend in the end on a finding that Wallis acted unlawfully in either respect. Rather, to make that argument, the General Counsel now relies chiefly on that portion of Hernan- dez’ disputed testimony concerning the existence, timing, and, especially, the duration of the supposed “group meeting.” I will judge in the end that Hernandez’ account of the supposed group meeting is not sufficiently reliable to carry the General Coun- sel’s burden of persuasion on this point of fact so pivotal to the General Counsel’s theory of “mass taint.” 2. The uncontradicted circumstances elaborated In September 1993, Dave Smith was the Drug Center man- ager at Benicia, Scott Pederson was the senior assistant man- ager, and Mike Wallis, Rhonda Iriarte, and Susan Nakamura were all second assistants. Company timesheet/scheduling re- cords covering the Saturday in question (GC Exh. 13(a)) show that only Wallis was on duty throughout the period of Wright’s visit to the store, having worked from 10 a.m. to 7 p.m. that day. But these records also show that Pederson had been on duty during the first hour of Wright’s visit, having worked a 6 a.m. to 2 p.m. shift. The records show that Iriarte also worked a shift that Saturday, but that she was not scheduled to come on duty until 3 p.m., after Wright’s departure. Relying on credible and harmonious features in Wright’s and Baker’s accounts, I further find as follows regarding the back- ground: On the evening of Friday, September 17, Benicia drug clerk Ronald Kelly, one of Wright’s early allies, left a tele- phone message at Wright’s home asking Wright to come to Benicia and talk to the employees personally about the UDCEA organizing drive. When Wright eventually picked up this mes- sage the same evening, he called Kelly back and left a message that he would come to Benicia sometime the next day. Also on the evening of September 17, possibly before Kelly had re- ceived Wright’s return message, Kelly came into the Drug Cen- ter, found Baker, another UDCEA supporter, and gave her some blank UDCEA petition forms, along with a paper contain- ing Wright’s telephone number and some information concern- ing UDCEA’s organizing aims. Kelley, who was not scheduled to work the next day, asked Baker to circulate the petitions among the drug clerks during his absence, and Baker agreed. Some additional background concerning Baker’s job tasks and worksites will further set the stage, and for the following descriptions I rely primarily on Baker, as augmented in some respects by Hernandez. Baker performed a variety of functions as a drug clerk, sometimes working in the pharmacy, other times in the camera department, other times on the sales floor or in the backroom, receiving and inventorying incoming mer- chandise. She was also responsible for compiling invoices from vendors who supplied the various departments, and sending the invoices once a week to Sacramento headquarters for payment. (Another drug clerk, former IDCA Shop Steward Jeannie Hevener, shared this responsibility with Baker.) When Baker performed this “bookkeeping” work, she used a small room upstairs, sometimes referred to as “Tina’s room.” The room was no more than 8-feet long by 9-feet wide; it contained a desk, a chair, a calculator, and a telephone. Its entrance was only 10–15 feet away from the entrances to two other upstairs offices, one reserved for the Drug Center managers and the other for the Grocery managers. But Tina’s room does not ap- pear to have been used for any management function; rather, according to Baker’s uncontradicted explanations, the room served either as Baker’s bookkeeping worksite, or as a location where both employees and managers would sometimes take breaks and use the telephone. Baker usually did her bookkeep- ing on either a Thursday or a Friday, but if she was behind on her work, she would devote all or part of her Saturday shift to the task, and the latter was the case on Saturday, September 18, when Baker also undertook to follow through on Kelly’s re- quest of the night before to circulate the UDCEA petitions among the other drug clerks. Further crediting Baker and Wright, I find that, at about 11 a.m. on the morning of September 18, Baker called Wright and urged him to visit the store and speak to employees personally. Wright told Baker it would take him about an hour to get there, and Baker told Wright he could find her in her upstairs office. In fact, Wright did not arrive at the store until about 1 p.m. He first spoke momentarily with one or more drug clerks on the floor, then went upstairs and found Baker, who ushered him into her office and suggested that he seat himself in the adjacent “security office.” This latter “office” was, in fact, an even smaller “cubbyhole” space that was used once or twice a week as a base for visiting store-security personnel, apparently as a vantage from which to oversee the sales floor through some peephole or one-way window. However, the security cubbyhole was not being used for this purpose on September 18, and, therefore, it was arguably a “nonwork” area of the store on that date. (However, as noted in my analysis, I don’t think the legal issues raised by paragraph 19 properly turn on the question whether Wright located himself during his visit in one office or the other within the suite, nor do they hinge on the often- elusive distinctions to be made between “work” areas and “nonwork” areas.) Moreover, even though there was some kind of rear access to the cubbyhole via backstairs leading to a “cat- walk,” the simplest way to get to it was to pass through Tina’s room, the rear door of which also led into the cubbyhole. Wright remained within the confines of the two-room suite for about the next 2 hours, i.e., until approximately 3 p.m. He admittedly spent some time in Tina’s room during that period, but he states, echoed by Baker, that his meetings with employ- ees occurred chiefly in the security cubbyhole. (On this latter point, as further described below, both Wright and Baker are contradicted by Hernandez.) During this period, 10 employees signed the UDCEA petition. As previously noted, at about the point Wright left the store, Baker took the petition, with the 10 signatures on it by that point, and, at 2:59 p.m., faxed it via the RALEY’S 487 pharmacy fax machine to Abfalter’s office. Another employee (Lintao) signed the same petition later the same afternoon. When Baker finished her shift, she left the signed petition (by then containing 11 signatures) taped on the breakroom table. When she returned to work on Monday, September 20, the petition was still taped to the table, but had now been supple- mented by two additional employee signatures (those of Elena Almazan and Ron Kelly), both entered on Sunday, September 19. Baker then personally solicited three more employees to sign the petition (Henderson, Hansen, and Cordiale—the lat- ter’s signature on a second copy of the petition functioning as a continuation sheet). Then, at 9:04 a.m. on Monday, September 20, Baker faxed the 2-page petition, now containing a total of 16 signatures, to headquarters. Baker credibly testified that she never spoke to any managers about Wright’s presence on the afternoon of September 18, and there is no direct evidence to the contrary. Wright credibly testified that he had no contacts of his own with any managers during the period of his visit, and there is likewise no direct evidence to the contrary. Both Baker and Wright further credi- bly testified (and there is no direct contrary evidence) that, as far as they were both aware, no managers saw Wright in Tina’s room or in the adjacent security office at any point during Wright’s visit. However, as is evident from Hernandez’ cred- ited testimony, Second Assistant Wallis had somehow learned of Wright’s “upstairs” presence, and, apparently, of his “union” status and purpose, as well. 3. Disputes about how the first five signatures came to be entered on the petition The testimonial dispute of principal arguable significance concerns the timing and circumstances under which the first five employees signed the petition. Specifically, the dispute concerns whether they all commonly signed at the end of a lengthy group meeting attended by all five of them (as the Gen- eral Counsel urges, relying on Hernandez’ account) or whether they signed in the course of serial individual meetings with Wright, as both Wright and Baker insist. The five signers in question were, in the order of their signing, Jeannie Hevener, Jennifer Shindelus, Melanie Park, Albert Hernandez, and Tina Baker. Wright’s and Baker’s versions: According to Wright’s and Baker’s harmonious accounts, these first five signatures were obtained as follows: After Wright had seated himself soon after 1 p.m., Baker took a break from her bookkeeping work and went down to the sales floor, where she found Hevener, the former IDCA shop steward, leaving for her scheduled lunch hour. The two went outside and smoked, and Baker told Hevener that Wright was in the upstairs office, waiting to an- swer questions about UDCEA. Baker and Hevener then went upstairs, and Baker introduced Hevener to Wright. Hevener and Wright then retired to the adjacent cubbyhole, while Baker resumed her bookkeeping work. After conversing with Wright for upwards of 20 minutes, Hevener reentered Tina’s room and signed the petition in Baker’s and Wright’s presence. Baker then asked Hevener to tell other clerks on the floor about Wright’s availability for talks. A few minutes after Hevener exited, Shindelus and Park came upstairs together and talked jointly with Wright in the cubbyhole, with the door open, while Baker continued her work. (Whether or not Shindelus and Park were supposed to be working at the time they met with Wright depends on the precise timing. If Wright and Baker were cor- rect that Shindelus and Park appeared sometime before 2 p.m., it follows from company timesheet/scheduling records that Shindelus was on duty at this point, although she may have been on an allowed break at the time, but that Park was not yet on duty at all, for she was not scheduled to begin her work shift until 2 p.m.) They emerged together some uncertain number of minutes later and likewise signed the petition. Following this, at about 2 p.m., Baker left the office for her own scheduled lunch hour while Wright remained upstairs. According to Wright, it was during Baker’s lunch break absence that Hernandez ap- peared alone, met with Wright and signed the petition. Accord- ing to Wright, he and Hernandez talked in the security cubby- hole for about 10–15 minutes, during which Hernandez ex- pressed support for UDCEA’s aims, and even his interest in running for an elective position in the new union, and then signed the petition. Baker testified, consistent with Wright’s account, and her own assertion that she left for her lunchbreak at 2 p.m., that she did not recall Hernandez coming to the office at any point when she was present there. Baker was the next to sign. She testified that she signed only after returning from her lunch break at 3 p.m. However, it is independently clear that she was wrong in this timing, and that she signed the petition within the period of her lunchbreak, i.e., at some point before 2:59 p.m., when she faxed the petition, now containing 10 sig- natures, with her own as the fifth, to Abfalter’s office. It is also independently clear that Hernandez met with Wright and signed the petition during the 2–3 p.m. period Baker was scheduled to take her lunchbreak. (Hernandez agreed that it was not until some point after his 2 p.m. arrival on duty that Wallis advised him of the upstairs presence of the “union guy,” and it is further evident that Hernandez must have met with Wright and signed the petition at some point before 2:59 p.m., when Baker faxed the petition, now containing 10 signatures, with Hernandez’ signature as the fourth, to head- quarters.) However, Wright’s version of the circumstances of the meeting with Hernandez (and Baker’s testimony that she was not present during this meeting) cannot be squared with Hernandez’ account, set forth next: Hernandez’ version: Hernandez testified that after being ad- vised by Wallis about the upstairs presence of the “union guy,” he went upstairs and found Wright, Baker, Hevener, Shindelus and, perhaps, another employee, all engaged in conversation in Baker’s bookkeeping space, not in the adjacent “security” cub- byhole. (Despite the General Counsel’s attempts to get Hernan- dez to place Park, the third petition-signer, in the meeting as the possible fourth Benicia drug clerk present besides himself, Hernandez repeatedly stated that he had no specific recollection of Park’s presence.) Once Hernandez entered, Wright made a presentation for the benefit of the assembled group, stating, inter alia, that IDCA had “disbanded,” that Local 588 wanted to “take over” as the drug clerk’s representative, but that Wright and others were forming another union, to be run by and in the interests of the drug clerks alone, that there would be elections for officers in the new union and that Wright would himself DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488 seek election as the new union’s president. At various points, Baker, Hevener, and the other employees expressed their sup- port for the new union. Eventually, a petition was passed to Hernandez, and Wright said, as Hernandez recalled it, “If you want UDCEA to be our bargaining agent, and represent the employees of Raley’s as their union, then go ahead and sign this petition. That way Local 588 . . . won’t be able to take . . . us over.” By the point the petition was handed to Hernandez, it already contained the signatures of Hevener, Shindelus and Park,174 and Hernandez promptly placed his own signature on the petition as well. This meeting, says Hernandez, lasted as long as “one hour,” with “30 minutes” being his inside estimate of its duration. Hernandez made it clear that his decision to sign the petition was based on his own judgment after having heard Wright’s pitch, and that nothing said or done by Second Assistant Wallis before the meeting had any influence on his choice to meet with Wright or to sign the petition. Moreover, Hernandez does not appear to have been overly awed by Wallis’ position as a sec- ond assistant. He had once refused Wallis’ insistent demand that he work overtime, an act of arguable defiance for which he received no discipline. In addition, elaborating on this incident during examination from the bench, he acknowledged that his relationship with Wallis was not simply that of manager and employee, but that he and Wallis were personal “friends,” who had long since “kissed and made up” over the overtime inci- dent. It’s worth noting by way of epilogue, however, that Her- nandez may have later had second thoughts about his having signed the UDCEA petition. Thus, at some uncertain point, perhaps a week or more after he met with Wright and signed the petition, he admittedly arranged for and hosted a meeting at his home attended by Benicia drug clerks, agents of Local 588, and Wright himself, a meeting which Hernandez said he spon- sored so that employees could hear “both sides.” What remains unclear, however, is whether this meeting—or Hernandez’ decision to host it—occurred before, or after, the September 23 recognition of UDCEA. 4. The significance of Hernandez’ version to the prosecution theory of “mass taint” Hernandez’ disputed version of the lengthy, “group-meeting” circumstances under which he met with Wright and signed the petition is critical to the General Counsel’s ultimate claims, which, as noted above, go well beyond merely asserting that Wallis gave unlawful assistance to UDCEA by “instructing” Hernandez to meet with Wright and by “allowing” Wright to “use” store “facilities” for the purpose of “talking to employ- ees.” Indeed, the General Counsel devotes dozens of pages of her brief simply to arguments as to why Wright’s and Baker’s version of the timing and sequences involved in the entering of the first five signatures should be rejected and why Hernandez’ 174 In the face of specific invitations by counsel for both the General Counsel and Local 588 to state otherwise, Hernandez clearly and con- sistently testified that he had not seen the others sign the petition during the meeting, but only assumed that they had done so, in the final stage of the meeting, just as he had done. Moreover, as previously noted, although Park’s signature was on the petition when Hernandez signed, he had no recollection that she was a participant in the meeting. account of the supposed group meeting should be credited, and why, moreover, Hernandez’ version should result in an ultimate judgment that all of the 16 petition signatures received from Benicia employees should be rejected as fatally contaminated by Wallis’ actions. How does the prosecution reach this ultimate claim? From counsel for the General Counsel’s summary of contentions (Br. at 141–142, as supplemented by extensive elaborations over the course of 25 more pages), it appears that she pursues the fol- lowing path of reasoning: First, relying on Hernandez’ descrip- tions of the supposed group meeting, and especially on his “outside” estimate that it lasted an hour, the General Counsel seeks a finding of fact that Wallis “instructed” not only Her- nandez to attend the meeting, but likewise must have “in- structed” (or knowingly “allowed”) the other four employees whose signatures appear immediately before and after Hernan- dez’ signature (Hevener, Shindelus, Park, and Baker) to meet commonly with Wright for upwards of an hour. The General Counsel further concludes, inexplicably, that all five of these drug clerks signed the petitions at times when they were “sup- posed to be working.” (Assuming that there was such a group meeting as described by Hernandez, it would still be clear that Baker, at least, was then on her scheduled lunch hour, and it would remain unclear whether any of the other employees sup- posedly present besides Hernandez were entitled to be on break.) In any case, extrapolating from scheduling records, the General Counsel posits that such a meeting of five employees would have resulted in only three drug clerks left on the sales floor for upwards of an hour. Then she speculates that Wallis was willing to tolerate such a reduction in floor coverage for such a lengthy period only because he had “interpreted” Abfal- ter’s September 16 memos to Drug Center managers, supra, as requiring him to extend precisely such extraordinary assistance to UDCEA’s organizing drive—indeed, that Wallis “did ex- actly what Raley’s wanted him to do” by allowing five on-duty employees to meet for upwards of an hour with Wright. Then, proceeding from this aggregation of premises, the General Counsel further argues (Br. 143) not just that the first five sig- natures were obtained under “coercive” circumstances (because Wallis must have “instructed” or knowingly “allowed” all five signers to meet commonly with Wright during their worktime), but that these first five “tainted signatures” had the effect of further “taint[ing] all of the remaining [11] signatures on the Benicia petition[.]” Why? “[B]ecause,” according to the Gen- eral Counsel, the first five signatures “conveyed [to the subse- quent signers] a false impression of uncoerced support for UDCEA.” Id.; emphasis added. To support the latter claim, the General Counsel dubiously invokes the Supreme Court’s decision in NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). In Savair, the Court rejected the Board’s rationale under DIT-MCO, Inc., 163 NLRB 1019 (1967), and held that the union-winner of a Board representa- tion election committed objectionable conduct warranting set- ting aside the election when the union told employees before the election that, if the union won, it would waive initiation fees for those who had signed up for the union before the election, but not for those who signed up after the election. (Therefore, the court, hearing the case in the context of the Board’s appeal RALEY’S 489 from the Sixth Circuit’s dismissal of a “certification-testing” 8(a)(5) complaint, affirmed the Sixth Circuit’s dismissal of the complaint.) The Court reasoned that the Board’s contrary posi- tion (and its DIT-MCO rationale) “allows the union to buy en- dorsements and paint a false picture of employee support dur- ing its election campaign.” 414 U.S. at 277. The Court further analogized the union’s thus “buy[ing] support” to an em- ployer’s “promises to increase fringe benefits by $10 for each employee who votes against the union, if the union loses the election,” promises which the Court judged “would cross the forbidden line under our decisions.” Id. at 278. While I need not reach the question, I am not persuaded by the General Counsel’s attempted analogy to the Savair doctrine to justify the claim that all 16 Benicia signatures were “tainted.” This case does not arise in a Board election context, where “labora- tory conditions” must have been maintained if the election re- sults are to be certified. More important still, there is no evi- dence that either Wright or any agent of Raley’s made any for- bidden “promises” or “threats” to the five employees whose signatures are said to have been “coerced” and, thereby, to have “tainted” the remaining eleven. Moreover, I note that the Gen- eral Counsel’s contention on brief that all 16 Benicia signatures were tainted amounts to a rather significant expansion of the “taint” argument made by counsel for the General Counsel near the end of the trial, on August 14, 1997, when she unsuccess- fully sought to present as purported “rebuttal” evidence the hoped-for testimony of another Benicia drug clerk (Hevener, who was resisting the General Counsel’s subpoena) concerning the existence of the same supposed “group meeting” that Her- nandez had described during the General Counsel’s case-in- chief some 10 months earlier. In that context, counsel for the General Counsel asserted that the supposed “group meeting” was of primary importance to her case because it would enable an argument that “five” Benicia signatures were “tainted” (the first five), and not just Hernandez’ alone. 5. The credibility dispute resolved Whether Hernandez’ account could genuinely support the General Counsel’s chain of reasoning as summarized above is a question I will not find it necessary to reach, for I judge that Hernandez’ account is of dubious reliability when it comes to precisely those features of timing, extent of participation, and duration on which the General Counsel leans so heavily. This credibility judgment rests finally on my assessment of the prob- abilities in the light of the undisputed circumstances reviewed in due course below. Before conducting that review, however, I will identify those factors that have not been particularly influ- ential: First, I have not been influenced by the testimonial “de- meanor” of any of the three witnesses. (Hernandez generally presented as a thoughtful, candid, and alert witness who was sincerely trying to reconstruct the timing and sequence and substance of a series of events occurring on a certain Saturday afternoon more than 3 years earlier. But so, too, did Wright and Baker.) Neither does Raley’s failure to call Wallis as a witness tilt me in favor of Hernandez’ claims about the supposed group meeting, which plainly took place, if at all, outside Wallis’ presence. The most that I can infer from the failure to call Wal- lis is that he would not have materially contradicted Hernandez’ account of what he said to Hernandez before Hernandez went upstairs. Moreover, while his remarks to Hernandez will them- selves warrant the further inference that he knew of, and con- doned Wright’s “upstairs” organizing presence, and also con- doned Hernandez’ taking of worktime to meet with Wright, these remarks are not in themselves sufficient to support a find- ing that Wallis knew of the supposed concurrent presence “up- stairs” of a group of other employees, much less which em- ployees, or whether one or more of those others should have been working at the time.175 In addition, before explaining what I have found most influential in reaching a judgment that gives scant weight to Hernandez’ disputed account, I must address what I regard as the General Counsel’s most substantial argu- ment favoring that account—that Wright appeared at one point to have effectively admitted that such a group meeting oc- curred. Thus, at the end of the last of many rounds of Wright’s cross-examination, there occurred the following brief exchange between Wright and counsel for Local 588: [By MR. JELLISON] And in Benicia on September 18, you met upstairs at the same time with Tina Baker and three to four other employees, correct? A. Yes, that’s correct. MR. JELLISON: Nothing further. Wright seems thus to have agreed during this ultimate round of cross-examination that he commonly met with “Tina Baker and three to four other employees.” He was not invited during his redirect examination by Raley’s or UWRU’s counsel to explain or elaborate further. Despite this, for the following reasons, I am inclined to give no overriding weight to Wright’s apparent “admission.” First, Wright had not only previously denied many times that he held such a group meeting on September 18, but he had also affirmatively testified with considerable specificity that his meetings with the first five signers occurred seriatim—starting with Hevener, followed by Shindelus and Park, followed later by Hernandez, alone, all as previously described. Second, I note that Wright’s apparent concession occurred very near the end of his ninth (and last) day of appear- ing on the witness stand (i.e., on the afternoon of April 14, 1997), at a time when he had been previously examined and cross-examined so many times about these and related matters that simple inattentiveness due to fatigue may have caused him not to pay heed to the critical phrase at the same time which Local 588’s counsel had fed into his question. Third, and alter- 175 The General Counsel correctly argues under the adverse inference rule, although superfluously in the circumstances, that the failure of Raley’s to call Wallis invites the inference that Wallis would have not testified “favorably” for Raley’s if he had been asked to furnish his own version of the conversation with Hernandez, or to state whether he had allowed Hernandez to use his worktime to go upstairs to meet with Wright. However, in my view, counsel for the General Counsel strains the adverse inference rule beyond its tensile limits to the extent she further invokes it as a sufficient basis for an affirmative finding that Wallis played some similarly instrumental role in steering other em- ployees to meet with Wright in the context of a lengthy group meeting. Wallis’ failure to appear and deny any knowledge of the alleged group meeting or the circumstances of participation cannot properly be in- voked to satisfy the General Counsel’s ultimate burden of persuasion on the point of fact at issue. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490 natively, I note that Wright had previously acknowledged that at one point during his Saturday afternoon visit, he, Shindelus, Park, and Baker were all present together in Baker’s bookkeep- ing space, both before he ushered Shindelus and Park into the adjoining cubbyhole, and after the three emerged and Shindelus and Park signed the petition on Baker’s desk. Considering this, in affirming to counsel for Local 588 that he had “met upstairs at the same time with Tina Baker and three to four other em- ployees,” Wright simply may have been referring to these mo- ments, without intending to concede that he had conducted a “group” meeting that included Hernandez, or of the kind and duration described by Hernandez. Accordingly, while the mat- ter is by no means free from doubt, I would give greater weight to Wright’s consistent and detailed prior testimony on the mat- ter in dispute than to his apparent “admission” during ultimate cross-examination by counsel for Local 588. In judging that Hernandez’ description of the “group” meet- ing is dubious, I have been influenced primarily by the follow- ing considerations: First, Tina’s room was by all accounts a small one, and one, moreover, that was ill equipped by its fur- nishings to function conveniently as a common gathering place for five to six persons (Wright, Baker, Hevener, Shindelus, Hernandez, and, perhaps, an additional employee), especially for a 30–60-minute meeting. Second, Hernandez was clearly unreliable insofar as he estimated that the meeting lasted as long as an hour. Thus, he concedes that he did not begin work until 2 p.m., and had already been working for some uncertain length of time before Wallis called him aside and advised him that a “union guy” was upstairs and wanted to talk to him. We also know from General Counsel’s Exhibit 54; Bates 754 (the first petition faxed by Baker to Abfalter), that, by 2:59 p.m., the petition contained a total of 10 signatures, Hernandez’ appear- ing as the fourth on the list. Under the General Counsel’s inter- pretation of Hernandez’ account of the group meeting, how- ever, the first five signers did not sign the petition until the conclusion of that meeting—a meeting, nevertheless, which clearly did not begin until some poorly-defined point after 2 p.m., and which had to have ended long before 2:59 p.m., by which latter point not only had the first five drug clerks signed the petition, but so, too, had five additional drug clerks. There- fore, it seems obvious that if the “group” meeting described by Hernandez occurred at all, it could not have lasted anywhere near Hernandez’ “outside” estimate of a full hour. Indeed, given Hernandez’ vagueness as to how soon after 2 p.m. the supposed meeting began, it is altogether possible in the known circumstances that if any such meeting occurred at all, it may have lasted far less even than the “30 minutes” which Hernan- dez posited as his inside estimate. Not only is it hard to envi- sion five or six people crammed into the small room for even as long as 30 minutes, but the statements and transactions at the meeting as described by Hernandez could easily have occurred within less than 15 minutes. Admittedly, these considerations suggest reasons for doubt- ing only Hernandez’ estimates of the duration of the supposed group meeting, and I could still accept Hernandez’ account insofar as it suggests that he attended a group meeting of some duration. (Obviously, though, the shorter any such meeting, the less ammunition it provides for the General Counsel’s specula- tions that Wallis must have been aware of it, and was neverthe- less willing to leave the sales floor understaffed to ensure that as many employees as possible heard Wright’s message and signed his petition.) But to give even this much leeway to Her- nandez’ version, I would also have to disregard certain addi- tional anomalies lurking in his account. Thus, even after dis- counting Hernandez’ estimates of the duration of the meeting, I would still have to accept that he, Baker, Hevener, Shindelus (and, perhaps, Park), all met commonly with Wright at some point after 2 p.m. But this would imply, in turn, that more than a full hour had already passed during which no one came up to visit Wright, and he simply sat idle. And this scenario itself strains my assessment of the probabilities inhering in the oth- erwise known circumstances: Baker had urged Wright to visit the store to answer employees’ questions and to encourage them to sign the UDCEA petition, and Wright had come to the store with the same purpose. Why, then would Baker or Wright tolerate the passage of more than an hour during which Wright met with no one? It seems far more probable that Baker would have gotten this process underway promptly upon Wright’s arrival at 1 p.m., just as both Wright and Baker insist was the case, resulting in Wright’s already having met with the first three petition signers (Hevener, Shindelus, and Park) in the period 1–2 p.m., followed by Hernandez sometime after 2 p.m., followed by six more signers before 2:59 p.m. Accordingly, noting first that Wright and Baker offered a harmonious and plausible version of how it was that the first five signatures came to be entered on the petition, and noting second that Hernandez’ own descriptions of a group meeting suffer from a variety of implausibilities, I judge finally that the General Counsel has not established by a preponderance of the credible evidence that any such group meeting occurred as described by Hernandez. 6. Analyses and conclusions of law The complaint alleges that Raley’s, through Second Assis- tant Wallis, committed two, distinct, acts of unlawful “assis- tance” to “Respondent UWRU/UDCEA”—first, by “instructing employees to talk to representatives” of that entity; second, by “allowing” those “representatives” to “use” its Benicia “facili- ties” to “talk to employees.” The complaint further charges that in the alleged “instruction” instance, Raley’s, through Wallis, independently “interfer[ed] with, restrain[ed], and coerc[ed] employees and thereby violated Section 8(a)(1). For reasons discussed below, I judge that neither count is meritorious. a. The “instruction” count The first count, although based on undisputed features of Hernandez’ testimony, clearly involves deceptive wordplay. Thus, to repeat an observation made earlier, this count obscures the employee status of Wright by depicting him merely as a “representative” of “Respondent UWRU/UDCEA.” Beyond that, it misleadingly implies in its use of pluralizations both that “representatives” of UDCEA other than Wright were present in the Benicia store on the Saturday afternoon in question, and that “employees” other than Hernandez were targeted by Sec- ond Assistant Wallis with “instructions” to “talk to” Wright. Most excessive of all, however, is the complaint’s use of the verb instructed (with its inevitable implications of employer RALEY’S 491 coercion) to characterize Wallis’ undisputed words to Hernan- dez preceding his meeting with Wright. Nothing in Hernandez’ account suggests that Wallis either “instructed” or in any way “ordered” or “directed” Hernandez to “talk to” Wright. Rather, from Hernandez’ descriptions, all Wallis did was to advise Hernandez that a “union guy” was upstairs and wanted to talk to Hernandez, and that Hernandez was free to take whatever time he felt was necessary to meet with him if he wanted to. Indeed, Hernandez readily acknowledged on cross-examination that he felt under no compunction from Wallis’ brief remarks to actually meet with the “union guy,” and he further made it clear that his decisions to meet with Wright and to sign the UDCEA petition were each his own choices. Moreover, that Hernandez was not influenced in these choices by Wallis’ position as a bottom-rung managerial agent of Raley’s is independently evi- denced by two other circumstances volunteered by Hernan- dez—that he and Wallis were personal “friends,” and that he had previously refused to honor even explicit demands by Wal- lis that he work overtime. Accordingly, insofar as the first count depends for its merit on a finding of coercion in the cir- cumstances (i.e., on the appropriateness of the verb instructed to depict Wallis’ statement to Hernandez), I can make no such finding. Thus, I will dismiss this count as merely an overblown depiction of an essentially noncoercive transaction. 2. The “allowance” count Wallis is said to have implicated Raley’s in an independent act of unlawful assistance when he “allowed” UDCEA’s “rep- resentatives” (sic) to “use” the Benicia facilities to “talk to employees.” There can be no doubt in the light of Hernandez’ credited and undisputed testimony that Wallis knew of and saw no problem with Wright’s “upstairs” presence and likewise knew of and saw no problem with the “union” purpose for his presence. Thus, here, unlike in the first count, the underlying facts provide substantial support for the verbiage used to de- scribe the actions of the two actors in the sentence, Wallis and Wright. Here, however, a significant problem with the count as I see it lays not so much in its choice of verbs as in its failure to state the elements of a violation of the Act. Again, just as in the case of the Rancho Cordova count discussed in a preceding subsection, it deserves emphasis that there is nothing wrong, per se, with an employer’s “allowing” employees to use the employer’s “facilities” to “talk to” their coworkers. On the contrary, under authoritative Supreme Court interpretations (Republic Aviation Corp. v. NLRB supra; Eastex, Inc. v. NLRB, supra, part three, sec. I), the Act requires employers to make such “allowances,” especially where, as here, the “talking” in question has to do with choosing a union representative. To elaborate the point, I will review what I understand to have been Wright’s Section 7 rights, and Raley’s corresponding duties, with respect to access to and use of the Benicia “facili- ties” on the Saturday afternoon in question: First, any notion that Wright was not an “employee” when he visited the Benicia store, or that his “off-duty” or “leave-of- absence” status somehow warrant treating him for store-access purposes as tantamount to a “nonemployee union organizer” under Lechmere, cannot be reconciled with the Board’s own post-Lechmere decisions: The Board has “explicitly rejected” arguments (heretofore made only by employers, with the Gen- eral Counsel always arguing to the contrary) that the access rights of off-duty employees are governed by Lechmere princi- ples applicable to nonemployee union representatives. Postal Service, 318 NLRB 466 (1995), citing Nashville Plastic Prod- ucts, 313 NLRB 462, 463 (1993). Rather, in the aftermath of Lechmere, the Board has repeatedly held that off-duty employ- ees enjoy the same “Republic Aviation” rights to use their em- ployer’s premises to engage in Section 7-protected activities as do their on-duty coworkers. (In addition to the previously-cited cases and others cited and separately discussed below, see, e.g., Timken Co., 331 NLRB 744 (2000); Santa Fe Hotel & Casino, 331 NLRB 723 (2000).176) Nor does it matter to an analysis of Wright’s statutory rights of access that he was in “leave-of absence” status, nor even that his particular leave of absence was “disability-related.” See Pizza Crust Co., 286 NLRB 490, fn.1 (1987) (“The mere fact that [employees] were then on a leave of absence as a result of employment-related injuries does not deprive them of employee status [for access purposes]”.). Indeed, in Southern California Gas Co., 321 NLRB 551 (1996), a post-Lechmere “access” case which blends most of these various elements into a single fact pattern that I regard as closely analogous to the one presented in this case, the Board again affirmed that Republic Aviation principles—not Lech- mere’s rules applicable to nonemployee organizers—protect the access rights of off-duty employees even to facilities of the employer where the employees are not assigned to work, and even under circumstances where the off-duty employees are in “leave-of-absence” status and are performing a “union- representative” function during their visitations. More specifi- cally, Southern California Gas held, contrary to the employer’s contentions, that employee/union stewards’ statutory right of access to coworkers for Section 7-protected purposes is not limited to access to employees at the “base” facility where the employee/stewards are assigned to work, but extends to other base facilities where other unit employees work; nor is that access right diminished by the fact that the employee-stewards are “off-duty” and on a “leave of absence” during the visit, nor even by the fact that the employee-stewards are functioning during the visit as “paid union agents,” i.e., are being paid by the union precisely for the purpose of making the visits to other base facilities. Id. at 551 and fn. 1, 557–558.177 176 The Board has even held, with Circuit Court approval, that off- duty employees of a subcontractor of a property owner who work regularly or exclusively on the owner’s premises enjoy Section 7 rights under Republic Aviation to use the nonwork areas of the premises to distribute union literature. See Southern Services, Inc., 300 NLRB 1154 (1990), enfd. 954 F2d 700 (11th Cir. 1992) (Coca Cola Company vio- lated Sec. 8(a)(1) by prohibiting off-duty employee of janitorial sub- contractor from distributing union organizing literature to fellow jani- tors on Coca Cola’s premises.) See also Gayfers Dept. Store, 324 NLRB 1249 (1997) (affirming rights of subcontractor’s off-duty em- ployees who work regularly on department store premises to distribute union literature to customers entering or leaving the premises). 177 In affirming the administrative law judge’s findings and conclu- sions in Southern California Gas, the Board erroneously implied, ap- parently due to inadvertence, that the case was grounded in a dispute about access to “parking lots.” Thus, the Board stated (id. at 551 fn. 1), “In adopting the judge’s finding that the employee-union stewards were DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492 True, the Board has recognized that employers may, in cer- tain circumstances, promulgate and enforce a uniform and non- discriminatorily-applied rule barring off-duty employees from access to interior working areas of a plant. See Nashville Plas- tic Products, supra at 463, reiterating the test set forth origi- nally in Tri-County Medical Center, 222 NLRB 1089 (1976), and holding that such a rule “. . . is valid only if it”: (1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all em- ployees; and (3) applies to off duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity. However, apart from the fact that Raley’s operates a retail store chain, not a manufacturing plant, there has been no claim nor showing that Raley’s maintained any such “off-duty/no-access” rule. On the contrary, the testimony of a number of employees (including several of those called as prosecution witnesses) harmoniously shows that it was common for off-duty employ- ees to enter both the Drug Centers where they worked and those where they didn’t work, and to visit with their coemployees both on the sales floors and in the backrooms and breakrooms and other nonpublic areas of those stores. Clearly, therefore, Wright’s mere entry into and “use” of Raley’s Benicia “facilities” to “talk to” coworkers at that store about signing a petition for UDCEA did not involve him in any breach of any preexisting rule or “company policy.” And, con- sidering all this, it seems a necessary conclusion that Wright enjoyed the Section 7 right to enter the Benicia store and to solicit petition signatures from his coworkers in the store, sub- ject only to Raley’s right to restrict such activities to nonwork times and nonwork areas. The other side of this coin is that Raley’s could not lawfully prevent him from entering the store and soliciting signatures from employees in a nonwork area during their nonworktime. Accordingly, insofar as the General Counsel’s theory of violation in this instance apparently sup- poses that it amounted to unlawful assistance simply for Wallis to have “allowed” Wright to use a store “facility” to “talk to employees,” the theory is again a nonstarter. Moreover, that entitled to access to the Respondent’s parking lots as ‘employees’ under Republic Aviation . . . we rely particularly on Postal Service, 318 NLRB 466 (1995).” The cited Postal Service case did, indeed, occur in an access-to- parking-lots setting. In fact, however, the Southern California Gas case did not. In fact, the judge in Southern California Gas had made no “finding” with respect to employee-stewards’ access to “parking lots.” Indeed, his decision nowhere mentions “parking lots,” and access to the employer’s parking lots was not at issue in the case. Rather, what was at issue was the legality of the employer’s systematic actions to “pre- vent” visiting off-duty employee/stewards from gaining access to em- ployees during nonworktimes and in nonwork areas within the various “base” facilities where the visiting stewards sought to make contacts with fellow workers. And the order adopted by the Board speaks in those more general terms, stating in pertinent part that the respondent shall “cease and desist from preventing its employees, including stew- ards of [the union], from using visits to bases other than their regular work bases for the purpose of petitioning among their fellow employ- ees, in nonwork areas and during nonwork times, on subjects that relate to the employees’ interests as employees.” Id. this was, indeed, the central theory of prosecution in this in- stance is evidenced by the very language of the complaint, and by the significant absence from that language of any special attacks on the particulars of the “allowance” in question. (No allegation, for example, that Wallis “allowed” Wright to use a “working area” for organizing purposes that employees were otherwise barred from using for meeting purposes; no allega- tion that Wallis “allowed” Wright to “talk to” employees on their worktime, nor even that Wallis—or “Raley’s”—otherwise barred employees from “talking to” one another on union- related subjects during their worktime. Just a claim that “Raley’s” gave unlawful “assistance” to UDCEA when Wallis “allowed” Wright to use store “facilities” to “talk to” employ- ees. Period.) I recognize that, despite the absence from the complaint of any such particularized allegation of misconduct, the uncontra- dicted evidence shows that Wallis implicitly authorized Her- nandez to use his worktime to meet with Wright. Moreover, considering that Wallis was prepared to let Hernandez take work time for this purpose, we might even infer (as the General Counsel contends at a minimum) that Wallis was indifferent to any employee’s use of worktime for the same purpose. How- ever, where Wallis and Hernandez were personal friends, and where Wallis was not otherwise shown to have been aware of any other instances of employees’ use of their worktime to meet with Wright (much less of a lengthy “group meeting”), I think drawing the latter inference would involve a stretch too far. Rather, on this decidedly spare record, I would find that Wallis’ toleration of Hernandez’ use of worktime to meet with Wright is just as easily understood as a personal accommoda- tion to a friend, rather than as betokening some overweening desire on Wallis’ part to aid Wright’s organizing efforts. I would have similar reactions to any claim that the vice in Wallis’ proven behavior lay in his having “allowed” Wright to use a “work area” (i.e., arguably, the “Tina’s room” section of the suite) to “talk to” employees. Wallis was never shown to have known that Wright was occupying the suite, as distin- guished from some other locale “upstairs.” Much less was Wal- lis shown to have known precisely where, within the suite, Wright may have been conducting his activities at any given moment. All that Wallis was shown to have known was that a “union guy” was “upstairs.” Moreover, even on brief, the Gen- eral Counsel does not appear to directly argue that the small suite occupied by Wright (or any part of it) was a “work area” which Raley’s should have barred him from “using.” Instead, the General Counsel repeatedly emphasizes that the suite was a “nonpublic area.” This emphasis is both significantly revealing (insofar as it again betrays the General Counsel’s implicit, but legally insupportable conception of Wright as merely a member of the outside “public,” and not as an employee with Section 7- based rights of access) and ultimately irrelevant. The fact is that Wright was an employee of Raley’s with the panoply of access rights made explicit by the Board in the previously-cited cases. And considering this, I find no dark significance in the particu- lar fact that Wallis “allowed” Wright to use a “nonpublic” lo- cale in the store. If anything, the suite’s status as a “nonpublic” area of the retail store would presumably make it a far more appropriate locale for Wright to conduct protected organizing RALEY’S 493 among his fellow workers than if he had chosen to park himself in a “public” area of the store, i.e., the sales floor.178 Accordingly, I find no merit to the allegations of paragraph 19 and I will dismiss them. IV. ALLEGED EMPLOYEE-DIRECTED VIOLATIONS BY MANAGERS AT DRUG CENTERS WHERE NO EMPLOYEES SIGNED UDCEA PETITIONS A. “Encouraging” Employees at South Lake Tahoe to Support UDCEA, and “Instructing” Them not to Talk to Local 588’s Representatives (Complaint Par. 25) 1. Introduction: Discrepancies between complaint as amended on November 5, 1996, and as ultimately repleaded on February 13, 1997 Complaint paragraph 25 is concerned with events at the South Lake Tahoe Drug Center, which is commonly referred to as the “Stateline” store, to distinguish it from two other Raley’s stores in the Lake Tahoe area. The counts in paragraph 25 were first alleged in the second amended consolidated complaint of August 8, 1996. These counts are attended by both procedural and factual confusions. I begin by noting the central procedural confusions: Counsel for Raley’s has correctly pointed out on brief that the allegations relating to events at the South Lake Tahoe Drug Center, as set forth in paragraph 25 of the ultimate complaint (the fourth amended consolidated complaint, dated February 13, 1997), do not conform to the amendments to paragraph 25 that I allowed the General Counsel to make on November 5, 1996, in the course of her direct examination of an employee-witness, Carmen Mieras. However, the discrep- ancy noted by Raley’s identifies only one layer of a multilay- ered muddle of confusions surrounding these counts, all of 178 Under a long line of cases tracing from Marshall Field & Co., 98 NLRB 88 (1952), a retail employer’s ban on “sales-floor” solicitations and distributions by employees is presumptively lawful, because the sales floor is widely understood to be a “work area.” By contrast, if the employer were to extend the same ban to “nonpublic” areas of the store, this would be an unlawfully overbroad formulation, because it would fail to distinguish between “nonpublic” areas reserved for nor- mal production work and those set aside for other purposes, such as breaks. Moreover, even “public” areas of the retail establishment (other than the sales floor itself) are locales where employees enjoy pre- sumptive rights under Republic Aviation to conduct otherwise protected solicitations and distributions, even if other employees may also be performing work “incidental” to the employer’s main business in the same “public” area where employees seek to exercise Section 7 rights. See, e.g., Santa Fe Hotel & Casino, supra 331 NLRB 723, where the Board stated: Furthermore, we agree with the judge that, as in U.S. Steel Corp., 223 NLRB 1246, 1247–1248 (1976), the occurrence of nonproduction work activity on part of an employer’s property does not, by itself, al- low an employer to declare its entire property to be a working area for the purpose of excluding employee solicitation activity. Here, the main function of the Respondent’s hotel-casino is to lodge people and permit them to gamble. The work activity which the Respondent as- serts occurs at the handbilled entrances outside its hotel-casino, includ- ing security, maintenance, and gardening, is incidental to this main function. To hold that this is a work area (where handbilling cannot occur) would, as recognized in U.S. Steel, effectively destroy the right of employees to distribute literature. Id. at 1248. which need to be identified before I address the merits of any particular claim made in paragraph 25. This is how paragraph 25 looked in its immediate, prea- mendment form, i.e., as it appeared in the third amended con- solidated complaint, dated October 1, 1996: 25. Respondent Raley’s, at Respondent Raley’s South Lake Tahoe, California store #159: (a) by Ron Forkner: (1) on unknown dates during about the week prior to September 23, 1993, encouraged its employees to support Respondent UWRU/UDCEA rather than Local 588 and instructed its employees not to talk to representatives of Local 588; (2) on an unknown date during about November 1994, interrogated its employees concerning their support for Respondent UWRU (b) on an unknown date during about the week prior to September 23, 1993, by Doug Smith or Vince Testa, in- formed its employees that Respondent Raley’s wanted them to support Respondent UWRU/UDCEA rather than Local 588; (c) [left blank]179 In trial on November 5, 1996, counsel for the General Counsel stated, in the midst of her direct examination of employee Mieras, that the allegation in “subparagraph 25(a)(2)” was “mispled,” because “[t]his witness is now saying that her con- versation with Doug Smith and Vince Testa occurred in Sep- tember.” This explanation was quite inaccurate as a proffer of what witness Mieras would eventually “say” on the matter. (In fact, once Mieras resumed her testimony, she never claimed to have had any discussions with Testa or Smith in “September” 1993, rather she clearly recalled having had only one discussion with those individuals—in April 1994.) It was also facially confusing—because “subparagraph 25(a)(2)” did not then (nor at any previous point) refer to conduct by “Doug Smith and Vince Testa.” Rather, that subparagraph had always referred to conduct by “Ron Forkner.” And after further confusing collo- quy, counsel for the General Counsel seemed to recognize this, saying, “Actually, Your Honor, also the complaint is mispled as to Respondent’s agent who made the alleged statement. It’s pled currently [as] Mr. Forkner and should be pled as Mr. Smith or Mr. Testa. And I would propose deleting that subparagraph and add- ing 25D.” By now, however, the General Counsel’s intentions were even more opaque, causing me to instruct her to spell out her proposed amendment. Counsel then replied: MS. KATZ: To delete subparagraph 25(a)(2), and to add a new subparagraph 25D, to read as follows: On an un- 179 This “blank” reflects my early dismissal from the bench, on Au- gust 23, 1996, of a count in the second amended consolidated com- plaint alleging that, in May 1994, Raley’s, through Manager Ron Fork- ner, “allowed representatives of Respondent UWRU [i.e., Raley’s employees] to speak to employees in the break room [of the South Lake Tahoe store] and to use a Raley’s copying machine even though Re- spondent Raley’s had refused to allow representatives of IDCA, when it was the exclusive representative of the Drug Unit, to talk to employees in the break room or to use Respondent Raley’s copying machine.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494 known date between about March and April 1994, by Doug Smith or Vince Testa. And then it would read the same as the last line, interrogated—A(2)—interrogated its employees concerning their support or for Respondent, UWRU. I granted this proposed amendment, the only certain features of which were (1) the deletion entirely of “subparagraph 25 (a)(2)” (referring to conduct in “November 1994” by “Fork- ner”), and (2) the addition of a new subparagraph (d), which would read, “On an unknown date between about March and April 1994, by Doug Smith or Vince Testa, interrogated its employees concerning their support for Respondent UWRU.” And the long and short of all this is that the outstanding counts of paragraph 25 should now properly read as follows: 25. Respondent Raley’s, at Respondent Raley’s South Lake Tahoe, California store #159: (a) by Ron Forkner: (1) on unknown dates during about the week prior to September 23, 1993, encouraged its employees to support Respondent UWRU/UDCEA rather than Local 588 and instructed its employees not to talk to representatives of Local 588; (2) [deleted per the General Counsel’s amendments of November 5, 1996] (b) on an unknown date during about the week prior to September 23, 1993, by Doug Smith or Vince Testa, in- formed its employees that Respondent Raley’s wanted them to support Respondent UWRU/UDCEA rather than Local 588; (c) [left blank] (d) [added per the General Counsel’s amendments on November 5, 1996] on an unknown date between about March and April 1994, by Doug Smith or Vince Testa, in- terrogated its employees concerning their support for Re- spondent UWRU. Despite all this, when the Regional Director issued the fourth amended consolidated complaint on February 13, 1997, the paragraph 25 counts simply duplicated those appearing in the (October 1) third amended consolidated complaint. That is, they realleged the (by-then deleted) count in “subparagraph 25(a)(2),” and they failed to include the (by-then added) count in “subparagraph 25 (d).” Moreover, the General Counsel ap- pears to have selectively forgotten her November 5, 1996, amend-ments and representations concerning what witness Mieras would “say” as to statements allegedly made by “Doug Smith and Vince Testa” in “September.” For her arguments on brief all assume that paragraph 25 was never amended, except that she now seeks a finding (based on witness Lorena Hooker’s testimony—not Mieras’), that, in the “week prior to September 23,“Doug Smith (at least) “informed employees that Respondent Raley’s wanted them to support UDCEA rather than Local 588.” As I discuss next, the most important confusion about these matters lies not so much in discrepancies between how counsel for the General Counsel said she intended to amend the counts in paragraph 25 and how they actually appeared in the ultimate version of the complaint, but in the hopelessly contradictory and wholly unreliable memories of the witnesses called by the General Counsel to support all of these “South Lake Tahoe” counts, Carmen Mieras and Lorena Hooker. 2. Findings, analyses, and conclusions of law Hooker and Mieras were among several witnesses called by the General Counsel who first came to the Regional Director’s attention when they returned the questionnaire forms mailed out by a Board agent in mid-June 1996, along with a cover letter advising that responses to the questionnaire would be kept “confidential,” and further advising potential responders that if the prosecution were “successful,” the General Counsel would be seeking a remedy that would require Raley’s and/or UWRU to refund all dues and initiation fees paid by employees to UWRU. The record indicates that all such late-discovered wit- nesses, after sending in their questionnaire responses, were then interviewed by a Board agent and then signed an affidavit pre- pared by the Board agent. (Hooker and Mieras were inter- viewed commonly on July 31, 1996, the date they also signed affidavits drafted by the Board agent.) Not surprisingly, all such witnesses contacted for the first time in (or after) the summer of 1996 displayed many difficulties when it came to reconstruct- ing the timing and the sequence of the many confusing events that had occurred in quick succession nearly 3 years earlier— the disclaimer of IDCA, the formation and recognition of UDCEA, which soon renamed itself UWRU, the pre and postrecognition organizing activities of Local 588, and the exe- cution of the Raley’s/UWRU labor agreement. Indeed, when they were called to testify, many of these witnesses still showed obvious confusions about these landmark events and their se- quences, and, in their various attempts to get them straight, they often mistakenly recalled an event that actually occurred many months after the recognition as having instead occurred in the prerecognition period. In the process, moreover, many of these witnesses expressly or implicitly contradicted statements they made in their responses to the Board’s questionnaire, and/or in the followup affidavits they later gave to a Board agent after returning the questionnaire. Hooker and Mieras were among the least impressive of these late-discovered witnesses. Their accounts, particularly on direct examination by the General Counsel, were delivered in conclu- sionary terms and in rote and rehearsed tones; they were sketchy and wholly confusing as to timing and surrounding context; and they were in many obvious respects internally inconsistent. Thus, focusing on Hooker for the moment, I formed the distinct impression from watching and listening to her confused responses that she had no genuine memories whatsoever about events in the critical prerecognition period. (Perhaps Hooker’s most candid response was the one she of- fered—“My mind’s a blank”—when first asked by the General Counsel what Forkner had said during a supposed “conversa- tion” in “mid-September 1993.” And her eventual “recollec- tion” on this point—“Um, that he wanted us to support the UDCA [sic] and not Local 588”—was hardly confidence- inspiring in its parroting of the conclusionary averral in the complaint.) Indeed, my impression overall was that virtually everything she was eventually led by the General Counsel to say about events in that period were nothing more than fabrica- RALEY’S 495 tions or plain distortions of innocent transactions, which, if they happened at all, did not happen in the period September 14–23, but at some later point in time, long after Raley’s had recog- nized UDCEA, indeed, long after those parties had concluded a labor agreement. Illustrative of the point is Hooker’s testimony about a supposed “meeting” in the period September 14–23, 1993, in Drug Center Manager Forkner’s office, one suppos- edly conducted not by Forkner, who was “absent” according to Hooker, but by Smith (who was then a Regional Drug Supervi- sor) and Testa (who was then the grocery manager in the Fallon, Nevada store, and who then had nothing to do with labor relations or personnel matters affecting the South Lake Tahoe store, but who, in March 1994, became a human re- sources manager for the “Nevada Division” that covered the South Lake Tahoe, California, Drug Center). Hooker’s claimed memories of this “meeting” were so clearly erroneous in the light of Raley’s detailed showing as to Testa’s job and where- abouts in September 1993 that the General Counsel is now forced to concede (after making many trial assertions to the contrary) that “Hooker was mistaken” about Testa’s presence— a “mistake” that the General Counsel now tries to explain in wholly speculative terms, even while clinging to the notion that Hooker accurately identified at least “Doug Smith” as having been involved in the supposed “meeting in September.” (See GC Br. at 271 fn. 325.) In fact, however, Hooker’s testimony even about Smith’s presence at the supposed “September” meeting was wholly unreliable in its own terms, and was squarely contradicted by Smith, who credibly testified that he only entered the South Lake Tahoe Drug Center twice in 1993, and in each case performed only routine supervisory work, held no meetings with any employees that had anything to do with “union-related matters,” and particularly held no meetings of any kind with Hooker. However, both Smith and Testa did acknowledge having joint meetings with employees in March– April 1994, where the issue was certain employees’ “concerns” about UWRU’s dues-collection demands, and where they reas- sured employees that no one was going to get fired for not pay- ing dues to UWRU. And it was this 1994 meeting, I find, that Hooker actually had vaguely in mind when she insisted (repeat- edly, but erroneously) that “Smith and Testa” held a meeting in September 1993 where they supposedly “encouraged” employ- ees to “support” UDCEA, “rather than” Local 588. Mieras, too, betrayed similar shortcomings, but remarkably, at those times when she appeared to be reporting from genuine memory about events occurring within the prerecognition pe- riod, she tended to contradict Hooker’s memories, and to cor- roborate the testimony of witnesses called by Raley’s regarding what occurred in that period. I will not attempt to retrace all of the confusing twists and turns in the testimonial accounts of Hooker and Mieras. I simply find that they were too unreliable to support any feature of paragraph 25, no matter how it was intended by the General Counsel to be amended. Beyond that, I find affirmatively as follows regarding events in the period September 14–23, 1993: First, as the General Counsel has stipulated (GC Exh. 181), the petitions relied on by Raley’s to confer recognition on UDCEA contained no signa- tures from any South Lake Tahoe employees. In fact, relying on the common memories of Mieras, Hooker, and another drug clerk, Carla McFarlane (who had been the IDCA shop steward), I find that no UDCEA petition ever appeared or was circulated in the South Lake Tahoe Drug Center during the period Sep- tember 14–23, and neither Ed Wright nor any other pro- UDCEA personage ever appeared in the store during that pe- riod. By contrast, as four witnesses (Forkner, McFarlane, Mieras, and Ciotti) commonly recalled, the Drug Center was visited at least once during this period by a Local 588 representative, Joseph Ciotti, whose responsibilities included servicing Local 588-represented employees on the grocery side of the store. Ciotti credibly testified, based on his own due-course business records, that he conducted an organizing visit to the South Lake Tahoe/Stateline Drug Center on September 23, the same day that Raley’s granted recognition to UDCEA. I rely on Ciotti for the date, even though Mieras hazily recalled at one point that Ciotti’s visit occurred “after” the UDCEA recognition on Sep- tember 23. Further, relying chiefly on Forkner’s coherent and credibly- delivered account, as roughly corroborated by both Mieras and McFarlane, I find that Forkner did conduct a meeting with drug clerks during the week preceding the recognition of UDCEA, where the issue of union representation was raised obliquely. However, the meeting was held to pursuant to Forkner’s long- standing practice of conducting a staff meeting at least once every 4–6 weeks, and it was not triggered by, nor even devoted to the subjects of Eidam’s disclaimer, or the contest between Local 588 and UDCEA for the right to represent the drug clerks. Crediting Forkner, I find that in the meeting in question (apparently the same one described vaguely by Mieras) Forkner first reviewed a sales floor “safety” issue, and also discussed the introduction of a 1-hour photo service into the camera de- partment. Then, following his customary practice, Forkner invited general questions from the attendees. One of the drug clerks (Forkner believed it was Betty Scripter, whom Mieras likewise placed at the meeting) asked something about their “options” respecting representation. Forkner’s only reply was to advise the employees to ask the “shop steward,” McFarlane, about such matters, because he didn’t know anything. (Mieras, apparently describing the same meeting, testified that Forkner made some statement to the effect that employees should “look at both sides” before deciding. Even assuming, contrary to all indications, that her memory on this point was better than Forkner’s, it is obvious that the remark she attributed to Fork- ner was legally innocuous.) In sum, therefore, I find that the credible record fails to establish that Forkner, during the pre- recognition period, “encouraged” employees “to support Re- spondent UWRU/UDCEA rather than Local 588.” At most, all he did was to respond blandly to an employee’s question, using terms that did not by any stretch amount to any such alleged “encouragement.” Separately, paragraph 25(a)(1) alleges that, “on an unknown date during about the week prior to September 23, 1993,” Raley’s, through Forkner, “instructed . . . employees not to talk to representatives of Local 588.” Despite the pluralizations, this count relies exclusively on Mieras’ testimony about a one-on- one discussion with Forkner a few days after the employee meeting described above. Mieras’ version on direct examina- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496 tion was sketchy, woodenly-delivered, and oddly lacking in antecedent context. Thus, stating only that she had a “conversa- tion” with Forkner in the backroom, Mieras then described the “conversation” in terms that implied that only Forkner did any talking, as follows: A. He said that the union, 588, had higher dues. And he also—he also said that the UWRA [sic] had lower dues, that they seemed to be the best one. Q. Do you recall anything else he said during this con- versation? A. He said that I shouldn’t be talking to 588. Moments later, however, Mieras implicitly recanted the claim that Forkner had said that “UWRA” “seemed to be the best one.” Thus, JUDGE NELSON: Did he say anything about which un- ion you should favor? THE WITNESS: No, he didn’t. He was just telling us about the UDCWA and how the—it was lower dues, and how—and the 588 was higher. JUDGE NELSON: So his remarks were limited to talking about which union had higher dues and which had lower dues? THE WITNESS: Right. Further questioning by counsel for the General Counsel pro- duced little in the way of detail: Q. Now, when Ron Forkner—do you recall anything else that Ron Forkner said to you about talking to Local 588 or not? A. No. Q. When Ron Forkner said that you were not to talk to Local 588, did he say that you were not to talk to Local 588 on company time or— A. No. On cross-examination, however, Mieras was easily led to recall additional matters of surrounding context—significantly, that the conversation with Forkner occurred during Ciotti’s (Sep- tember 23) visit to the store, during which she had admittedly talked on the sales floor with Ciotti. Moreover, although her testimony on the matter remained vague and fragmentary even at this stage of her examination, she clearly affirmed counsel for Raley’s suggestion that Forkner had never specifically men- tioned “Local 588,” but had instead told her “not to talk to out- side solicitors on company time.” Thus, it is evident that, on cross- examination, Mieras materially contradicted her account as elic- ited by the General Counsel—both as to what Forkner had alleg- edly said, and had not said, regarding “talking to ‘Local 588.’” Accordingly, even if Forkner had never offered his own, far more coherent account of the transaction in question, I could not find from Mieras’ contradictory memories that Forkner issued any blanket “instruction” to her not to “talk to Local 588.” Moreover, I would dismiss as fantastic Mieras’ claim that, in this exchange, Forkner advised Mieras that “UWRA’s” dues were “lower” than those charged by Local 588. There is no evidence that the fledgling union even had a “dues” structure at the time the transaction occurred. And in any case, Forkner credibly denied ever telling Mieras any such thing, and he credibly insisted, moreover, that he had no idea how much Local 588 charged as dues, much less whether that amount was higher or lower than those that might be charged by UDCEA. Again, the only coherent testimony associated with this transaction came from Forkner himself. Thus, relying on Ciotti for the date and on Forkner for the substance, I find as follows: After Ciotti came into the Drug Center on September 23, Fork- ner saw Ciotti spend about 10 minutes conversing on the sales floor with Mieras, who was using a cart to stock shelves, but had stopped her stocking activities to converse with Ciotti, who had placed his foot on the rail of Mieras’ cart. (Forkner knew Ciotti, because he had seen Ciotti on many previous occasions when Ciotti had serviced the Local 588-represented grocery side of the store.) Forkner’s general practice was to tolerate sales-floor discussions between drug clerks and customers, friends of the drug clerks, or other nonemployees, so long as they didn’t become “excessive,” which, by Forkner’s rule of thumb, meant that such conversations shouldn’t go on for more than 5 minutes. When about 10 minutes had elapsed, and Fork- ner noticed that Ciotti and Mieras were still conversing, Fork- ner went to the backroom and used an intercom to page Mieras into the backroom. When Mieras arrived, Forkner said, “Car- men, the reason I called you back here was because we can’t stop work and have discussions about anything—family mat- ters, friends, union issues. Any of those things can’t stop your work. We can’t allow it. You’re welcome to do those things on your own time, but we need to continue working.” Mieras replied, “I understand, and I’ll get back to work.” It is obvious that Forkner’s credited version cannot be relied on to support the complaint count at issue, particularly insofar as the text of that count suggests that Forkner issued some kind of blanket “instruction” to “employees” in general not to “talk to” repre- sentatives of Local 588.” (The same would be true, inciden- tally, even if I were to place greater reliance than I am inclined to place on Mieras’ own eventual memories of the same ex- change, elicited principally during her cross-examination.) Accordingly, I find no merit to the allegation now at issue. Insofar as the complaint alleges that either Forkner or “Doug Smith or Vince Testa” engaged in any “interrogation” or other coercive acts in the period September 14–23, such allegations are not credibly supported by General Counsel’s witnesses and are credibly contradicted by the witnesses called by Raley’s. The same is true of counts alleging that one or more of the above-named company agents committed further violations in the postrecognition period. Accordingly, I will dismiss para- graph 25 in its entirety, both as it was amended by the General Counsel on November 5, 1996, and even as it appears in its preamendment form, i.e., the form that was erroneously reca- pitulated in the ultimate version of the complaint. B. Events at Fair Oaks (Complaint Par. 21(a)) In section V, infra, I will judge, contrary to the prosecution, that Raley’s had no obligation to allow Local 588’s nonem- ployee representatives to conduct in-store organizing, and therefore I will dismiss, inter alia, the count in paragraph 21(b)(3) alleging that Fair Oaks Senior Assistant Drug Center Manager Fowlks unlawfully told Local 588 Representative RALEY’S 497 Glazer to “leave the facility” (i.e., the breakroom) on Septem- ber 23. Here, I dispose of other, independent counts alleging that Fair Oaks Drug Center Manager Darrell Haring implicated Raley’s in violations of Section 8(a)(1) and (2) when he alleg- edly did the following things, as set forth in subparagraph 21(a): (1) about September 15, 1993, instructed employees to sign a petition requesting that they be represented by Re- spondent UWRU/UDCEA; (2) about various unknown dates between September 15, 1993 and September 23, 1993, instructed employees to sign a petition requesting that they be represented by Re- spondent UWRU/UDCEA because they would get raises; (3) about an unknown date during the week before September 23, 1993, informed employees that he had re- moved authorization cards for Local 588 from the em- ployee bulletin board but kept Respondent UWRU/ UDCEA’s petition on the bulletin board because only memoranda supported by Respondent Raley’s belonged on the bulletin board; (4) about September 24, 1993 and various unknown dates thereafter, interrogated employees as to whether they had signed petitions requesting that they be represented by Respondent UWRU/UDCEA. 1. Introduction; overview of surrounding events Fair Oaks drug clerk Tim Lee was the sole witness presented by the General Counsel to support the four counts listed above, which first appeared in the August 8, 1996, “Second Amended Consolidated Complaint.” Lee had become the IDCA shop steward for the Fair Oaks Drug Center sometime earlier in 1993, and he became a key employee-supporter of Local 588 at Fair Oaks in the aftermath of Eidam’s disclaimer. As will be- come more evident, while Lee’s testimony touched on each of four complaint counts, his accounts generally failed to support the exaggerated verbiage used in the complaint (e.g., “in- structed”), and the false suggestions in nearly all cases that “employees” (rather than Lee, alone) were the targets of Har- ing’s allegedly unlawful behavior. In addition, certain material features of Lee’s testimony in support of all of the four counts were credibly denied or contradicted by Haring, and also as to count (1), by one of the two employee-witnesses called by Raley’s, Judith Harold. For reasons noted below in subsection 2, I found Lee to be in many respects an unreliable or incredible witness, and one whose testimony in disputed instances is too dubious, standing alone, to satisfy the General Counsel’s bur- den of proof by a preponderance. The four counts alleging unlawful behavior by Haring must be considered in the light of surrounding circumstances at Fair Oaks. Many of these circumstances are not in dispute, and some of these deserve recognition at the outset: Everyone agrees, for example, that Local 588 actively campaigned at Fair Oaks, as evidenced not only by Glazer’s lunchtime visit to the break room on September 23 (detailed in section V), but by the in-store activities of Lee, both before and after Glazer’s visit. Thus, in the week prior to Glazer’s visit, Lee had already ac- quired Local 588 authorization cards, buttons, and other cam- paign materials from a shop steward on the Local 588- represented grocery side of the store, and had posted these ma- terials on the bulletin board in the Drug Center breakroom. In addition, in this pre-September 23 period, Lee had begun sport- ing a Local 588 button on his workshirt or apron. Moreover, there are other undisputed facts worth recording concerning Haring’s admitted behavior and reactions to Lee’s pro-Local 588 activities, primarily these: When Lee first started wearing a union button, Haring told him he shouldn’t be wear- ing it because it violated a “dress code.” (However, this was an admonition which Lee admittedly ignored, and which Haring did not reiterate in the following weeks, when Lee continued to wear the button; indeed, Lee stated that Haring’s initial admo- nition actually spurred him to continue to wear the button for a period that did not end until some time well after UDCEA’s recognition.) In addition (although the testimony concerning the timing of the incident is confusing, to say the least), Haring also admittedly removed the Local 588 authorization cards from the breakroom bulletin board an uncertain number of days after they had been first posted by Lee, and he told Lee that he had done this. By contrast, there is little or no evidence of any pro-UDCEA activity in the Drug Center in the precognition window period. Thus, Wright never personally visited the Fair Oaks Drug Cen- ter, and it is independently clear that Raley’s headquarters never received any UDCEA petitions signed by any drug clerks employed there. Nevertheless, there exists a number of contro- versies and ambiguities surrounding a rather different ques- tion—whether a UDCEA petition was present in the Drug Cen- ter during the prerecognition window period. Specifically, the controversies orbit around the central question whether Lee also posted a UDCEA petition on the same bulletin board in the breakroom where he had posted the Local 588 cards, buttons, and other materials. Based on considerations detailed in subsec- tion C,3, below, I will find that he did. However, even with that finding, there remain additional questions: When did Lee first post the petition—and the Local 588 cards—on the bulletin board? For how long did the petition—and the Local 588 cards—remain posted together? (Or, did the petition remain posted after Haring admittedly removed the Local 588 cards from the same bulletin board?) These latter questions are not easy to answer, and it will not be strictly necessary for me to answer any of them in order to dispose of counts 1, 2, and 4, supra. Accordingly, I will defer further discussion of them until I more directly address count 3 in subsection C,3. 2. Lee’s credibility Lee was not one of the General Counsel’s “late-discovered” witnesses as I have elsewhere used that expression. He had given a series of written statements to Local 588 in the immedi- ate aftermath of UDCEA’s recognition, and an affidavit to a Board agent in December 1993. He had also responded to the Region’s phase three investigative questionnaire in June 1996. However, I note, without finding it necessary to detail the re- cord evidence on the point, that some of his memories from the witness stand had never been disclosed in any of his 1993 statements or affidavit, nor even in his 1996 questionnaire re- sponse, while others first emerged only in the questionnaire response, and still other assertions made in the questionnaire DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498 response (e.g., that “Dan Abfalter . . . sent letters to employees in some cases to gain support for the UDCEA/UWRU”) never emerged in his trial testimony. Lee struck me overall as an agreeable, but rather spacey, confused, and self-contradictory witness, and sometimes a glibly disingenuous one, as well—one who resorted to plainly implausible improvisations when contradictions emerged dur- ing his cross-examination. The most obvious example, but hardly the only one, surrounds his attempt to reconcile one claim (that, even as late as Glazer’s September 23 organizing visit to the Drug Center, he was still undecided about whether to support Local 588 or UDCEA) with his testimony elsewhere, which clearly indicated that, well before September 23, he had already acquired and posted Local 588 authorization cards and other materials on the bulletin board in the breakroom, and had begun sporting a Local 588 button on his workshirt or apron. (His testimony concerning these latter gestures of support for Local 588, incidentally, is echoed and augmented by Raley’s witnesses Haring, Palm, and Harold.) Relatedly, Lee claimed to have first “met” and had personal “contact” with Glazer only upon the latter’s arrival at the Drug Center on September 23. But this was a claim that Glazer himself clearly contradicted when he testified (a) that he first met and introduced himself to Lee sometime in 1992, (b) that he continued on several later occasions to talk with Lee during his visits into the Drug Center (by which point they were already addressing each other by their first names), and (c) that his September 23 visit itself stemmed from Lee’s invitation in an earlier telephone call be- tween the two. In addition, Glazer testified unhesitatingly and with some clarity that Lee had previously been identified to him by “someone in [Local 588’s] organizing department,” probably “Jacques Loveall,” as the “shop steward” and a Local 588 supporter, and likewise had been thus identified, by name and telephone number, in an “organizing packet” Glazer had previously received from Local 588. Moreover, Glazer recalled that Lee was wearing a Local 588 button when he met with him on September 23, and he clearly regarded Lee as Local 588’s key employee “contact” there, one whose support for Local 588 he already took for granted as of his September 23 visit and during his 30–45 minute meeting with Lee and others in the breakroom. Apart from such implausible depictions of himself as “unde- cided” at material times about whether to support Local 588, Lee’s recollections as to the timing and substance of supposed events, spanning a period that began on an uncertain date when he first learned of the IDCA disclaimer and ended at some un- certain point weeks after UDCEA’s recognition, were variously hazy, fragmentary, confused, inconsistent, or conclusionary. Indeed, he seemed to shift ground and emphasis concerning timing and substance with each retelling of these events over the course of the 2-1/2 days he spent on the witness stand (No- vember 6, 7, and 8, 1996), during which he underwent pro- tracted rounds of direct and cross-examination (and redirect and recross, and re-redirect and re-re cross, etc.). And, in the end, I formed the distinct impression from his confusing and often contradictory accounts that Lee had only the vaguest of genuine memories of the timing and substance of the events he pur- ported to describe, and, moreover, that some of his purported memories (concerning counts 2 and 4, especially) were grounded only in fantasy. Accordingly, I will give no credence to disputed aspects of Lee’s testimony, and only limited cre- dence even to his versions of matters about which there is only marginal dispute. 3. Count-by-count analyses and conclusions a. Haring’s alleged “instructions” in employee meeting The complaint alleges that “about September 15,” Haring “instructed employees to sign a petition requesting that they be represented by Respondent UWRU/UDCEA.” The count is grounded in Lee’s fragmentary description of a brief meeting called by Haring in his office with Lee and drug clerks Palm, Harold, and, perhaps, Helen Wurschmidt, on a date which Lee actually believed, upon reflection, probably occurred on or about Friday, September 17, or Saturday, September 18. Har- ing, Palm, and Harold agree that there was such a meeting, and Haring most credibly recalled that he held it on either the Sep- tember 16 or 17, i.e., promptly after he received Abfalter’s second (faxed) September 16 memo to the Drug Center Manag- ers (GC Exh. 127, supra), instructing the managers, inter alia, to post Eidam’s disclaimer letter and Teel’s September 15 letter to the drug clerks (GC Exh. 14), and also to: Advise your Drug Clerks what has happened, reassure them: a. The wages are as announced. b. The retroactive check is being processed. c. The October increase will happen. Lee’s account on direct examination contained only slender support for the “instruction” count now at issue. Thus, he ini- tially testified regarding this meeting that it was brief, lasting about 5 minutes, and that: Once we got in the office, Darrell . . . said that the—he would like to get this union thing behind us. He said that we should start thinking about signing up for the UDCEA. He said that that would help, you know, get the store back together. I don’t really recall what he said after that. I do remember him sug- gesting that we do sign up for it as soon as we could. However, the sincerity, accuracy, and completeness of even this initial version was seriously called into question during Lee’s cross-examination by Raley’s counsel. Thus, when invited to revisit the subject of the meeting, Lee now recalled that Haring did say that the employees “were going to get a wage increase.” And he further affirmed, when it was suggested that Haring had said that “the retroactive check was being processed,” that this was “a possibility” and “sound[ed] like something he would have said[,]” indeed, that the suggestion “rang a bell.” Signifi- cantly moreover, Lee essentially contradicted himself as to the alleged “instruction” to “sign-up for the UDCEA.” Thus: [By MR. JORDAN] Q. Didn’t he tell you in that meet- ing that the employees should carefully consider their op- tions, in terms of the unions? A. Yes, he did. Q. And didn’t he say that he had a preference for let’s—let’s just get this thing over with and get back to work? A. Oh, absolutely. RALEY’S 499 These concessions were enough, standing alone, to cause me to doubt Lee’s original claim that Haring had suggested that em- ployees should “start thinking about signing-up for the UDCEA.” Beyond that, Haring, echoed by Palm, flatly denied ever suggesting in any way that employees should give particu- lar thought to signing up for the UDCEA. Indeed, Haring in- sisted that he was wholly unaware at the time of this meeting that “UDCEA” was the name of the “new union” mentioned in Teel’s letter. (I find this entirely credible, considering (1) that neither Teel’s September 15 letter to the drug clerks or Abfal- ter’s September 16 memos to Drug Center Managers had men- tioned the name of the “new union,” and (2) that Palm, too, did not recall Haring mentioning the name of any union during the meeting.)180 Rather, the gravamen of Haring’s account, sub- stantially supported by Palm, is that he simply devoted the brief meeting to the topics suggested in Abfalter’s faxed memo, which he brought with him into the meeting; that is, he told the drug clerks that despite the disclaimer, their jobs were still se- cure and that they would still get their promised pay increases and retroactive checks, and that they should just get back to work. He vaguely recalled that one or more employees asked questions about what was likely to happen next with the “union situation,” and that he replied that he didn’t have any answers, and that employees would have to answer such questions on their own. Summing up: Lee’s concessions on cross-examination im- plicitly undermine his claims during direct examination that Haring essentially devoted the meeting to an attempt to steer employees into “signing up for the UDCEA.” Haring’s and Palm’s harmonious and credibly-stated memories that Haring merely gave the reassurances called for in Abfalter’s second (faxed) memo are independently plausible and indeed probable. In all the circumstances, including my overall doubts about Lee’s reliability, I find that the General Counsel has not estab- lished by a preponderance of credible evidence that Haring in any way tried in the meeting to thus influence the employees’ choice as to representation, much less would any evidence of record support the complaint allegation that Haring “instructed” employees to sign a UDCEA petition. Accordingly, I dismiss count (1), and any associated counts or claims that Haring’s remarks at the meeting violated either Section 8(a)(1) or (2). 180 The General Counsel would argue, relying on one of Lee’s vary- ing versions of the timing, that Lee had already posted a “UDCEA” petition in the breakroom by this point, and, therefore, that Haring would have been aware from seeing the petition that “UDCEA” was the name of the “new union.” The argument would not be well received by this judge, considering the confused record as to the timing of any such posting by Lee. Thus, apart from the question (discussed elsewhere below) whether Lee testified truthfully that he had received and posted such a petition, Lee’s testimony is particularly contradictory when it comes to identifying the timing of such a posting in relation to Haring’s brief meeting. Indeed, in one version, Lee implied that the meeting preceded the supposed posting, then later implied that the sequence was just the reverse, but that Haring didn’t yet know at the time of the meet- ing that such a petition had been received and posted. b. Alleged similar “instructions” and “interrogations” at various other points Here, I dispose of counts (2) and (4), supra. These counts collectively allege, (a) that Haring separately “instructed em- ployees” to sign a UDCEA petition “on various unknown dates between September 15 . . . and September 23”—and, moreover, that Haring told “them” that by thus signing, “they would get raises”; and (b) that, on September 24 and “various unknown dates” after this, Haring repeatedly “interrogated employees as to whether they had signed petitions requesting that they be represented by Respondent UWRU/UDCEA.” These counts are commonly grounded in Lee’s wholly con- tradicted testimony about certain statements supposedly made by Haring to Lee—and to Lee alone— primarily during a claimed series of (unprecedented) private lunch get togethers, occurring both during the window period and continuing after the recognition of UDCEA. Lee was especially unconvincing in narrating these matters, both in terms of his comportment and manner of replying to questions in this area, suggesting to me (even before hearing other relevant evidence) that he was im- provising throughout. That aside for the moment, this is the gist of Lee’s testimony: Beginning sometime during the prerecogni- tion window period, and continuing perhaps for 2 or 3 weeks after UDCEA’s recognition, Haring regularly invited Lee to take lunch with him at a series of restaurants, and, during each of these luncheons, Haring said “basically” [or “pretty much”] the same thing”—that he was distressed by the “turmoil” in the store over the union issue, and that employees should just sign the UDCEA petition so that they could get all the turmoil “out of the way.” Lee was vague about the timing and the total num- ber of such private luncheons, but he distinctly claimed, during his direct examination by the General Counsel, that, in the pre- recognition window period alone, he had “at least four” such luncheons with Haring where Haring made such remarks. And, referring to the “first,” of these luncheons (supposedly at “Jim Boy’s” restaurant), Lee added, “I do remember when he was talking about signing up for the UDCEA, he said we’d get our raises a little sooner if we did that.” (Hence the “instruct-tions” cum “get a raise” allegations.) Moreover, according to Lee, Haring had introduced the whole topic in this “first” luncheon by asking him if he had “signed the UDCEA petition” yet. (Lee recalls replying, “No.”) I note that the complaint does not al- lege the existence of any such prerecognition inter-rogation on Haring’s part—only that such interrogations occurred on and after September 24, after UDCEA had already been recognized. In any case, Lee also testified summarily that Haring continued to press him anxiously with the same question—getting the same reply each time—on numerous subsequent occasions, including on and after September 24. Haring flatly denied ever having any private lunch with Lee at any time in or after September 1993—or before, for that matter. (He stated, in substance, that while he had great admira- tion for Lee as a “strong” worker, he had no interest in sharing his personal lunchtime with Lee, and typically either lunched alone, or with one or more select others, but never with Lee.) Haring also flatly denied ever having in any context questioned Lee about signing a UDCEA petition, or ever having suggested that employees would get a “raise” more quickly if they signed- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500 up for UDCEA, or ever having otherwise encouraged Lee or any other employee to sign up for UDCEA. I was impressed by the conviction of Haring’s testimony in this regard, and like- wise by his candor in admitting to other actions already ad- verted to (the union button admonition to Lee; the series of card-“removal” incidents), as to which Lee had offered only fragmentary and inconclusive testimony. Accordingly, were simple considerations of witness “demeanor” the only factor to be taken into account, I would unhesitatingly credit Haring’s convincing and specific denials over Lee’s confused and im- provised-appearing narrations. However, demeanor is hardly the sole factor in my assess- ments, and I confess that I formed the deepest doubts about both the sincerity and the plausibility of at least some features of Lee’s narrations about the “lunch” meetings long before Haring ever came to the witness stand. Indeed, by the time Lee had concluded his testimony, it already seemed highly implau- sible, for example, that Haring would ever have “questioned” Lee about whether he had signed a UDCEA petition, much less that he would have almost ritualistically posed the same ques- tion to Lee during a 3 or more weeks’ period spanning both the window period and the days and weeks following UDCEA’s recognition. Thus, as previously noted, by the time Lee con- cluded his testimony, it was plain from his own accounts alone that, starting on an uncertain date sometime in the week prior to Glazer’s (Thursday) September 23 organizing visit (i.e., sometime on or soon after Wednesday, September 15, the first date that Lee could have received notice of IDCA’s disclaimer), Lee had already distinguished himself as a conspicuous Local 588 supporter by securing and posting Local 588 authorization cards, union buttons, and other printed material, and had al- ready started wearing a Local 588 button on his work uniform. Accordingly, it didn’t seem at all plausible that, during that same period, Haring would nevertheless continue to ask Lee if he had signed a UDCEA petition yet. Still less did it seem plau- sible that Haring would continue to press Lee on that matter even after UDCEA had been recognized, by which point it had long since become clear to Haring and to Lee’s fellow drug clerks that Lee was an active supporter of Local 588. Considering all the evidence, including Haring’s convincing denials, I am left at the end with the strong belief that Lee’s accounts regarding the supposed series of luncheons with Har- ing, and other or related such transactions, were mere inven- tions. Accordingly, I dismiss counts (2) and (4) as wanting in credible proof. c. Haring’s alleged card-removal conversation with Lee during the window period The discussion here must go well beyond the count in the complaint that triggers it, i.e., the count (3) allegation that, on “an unknown date during the week before September 23, Har- ing “informed employees that he had removed authorization cards for Local 588 from the employee bulletin board but kept Respondent UWRU/UDCEA’s petition on the bulletin board because only memoranda supported by Respondent Raley’s belonged on the bulletin board.” Again, it is a conversation between Haring and Lee alone that lies behind this allegation. As to the conversation itself, there is no real dispute: Lee tes- tified that when he discovered that the Local 588 cards (but not the union buttons) had been removed from the bulletin board (see further findings below), he went to Haring’s office, where the following conversation ensued: I asked him where the sign-up cards were, and he said he had taken them down. And I asked him why, and he said because only Raley’s-sponsored material or something like that was— belonged on the bulletin board. I forgot exactly what the words were. Q. Do you recall anything else that was said by you or Mr. Herring [sic] during the conversation? A. I asked him if he had them, and he said he didn’t. And that was pretty much it. I left and I never got them back. Haring’s own recollection of the conversation was vague, but essentially similar. (He explained that the breakroom bulletin board was traditionally used exclusively for required official notices, such as OSHA postings and the like, and that he felt that “union” materials were inappropriate for posting on that board.) Strikingly, what is missing from Lee’s account of the con- versation (and from Haring’s, as well) is any indication that Haring made any reference to a “UDCEA” petition in the course of admitting to Lee that he had, in fact, removed Local 588 cards from the bulletin board. Clearly, therefore, the com- plaint takes extraordinary liberties with the known facts insofar as it alleges that Haring “informed employees that he had re- moved authorization cards for Local 588 from the employee bulletin board but kept Respondent UWRU/UDCEA’s petition on the bulletin board because only memoranda supported by Respondent Raley’s belonged on the bulletin board.” Accord- ingly, although I will find in subsection 4, infra, that Haring unlawfully removed Local 588’s cards from the bulletin board, I find utterly no merit to the count in question insofar as it al- leges that Haring effectively told “employees” (i.e., Lee) that the UDCEA petition was entitled to be posted on the board because it was “supported by Raley’s.” Moreover, and at least as important, I will find for reasons set forth next that the con- versation underlying this count did not occur “in the week be- fore September 23,” as alleged, but only at some uncertain later point. The most significant question surrounding this count is the timing of the conversation and the events or supposed events that lay behind it. Specifically, as discussed below, if Lee’s most deliberate version of the background particulars is cred- ited, and if this version is then juxtaposed against Glazer’s par- ticular recollections of what he saw on the breakroom bulletin board at midday on September 23, it would be virtually impos- sible to find that Haring’s admitted removal of the Local 588 materials from the bulletin board-or the conversation with Lee that later ensued—occurred “during the week before September 23.” Indeed, neither of these events could have occurred at any point prior to the afternoon of September 23, and, more likely, they did not occur until a date after September 23. The issues of timing and sequence are best understood in the light of the one certainty in a record which is otherwise often RALEY’S 501 confused and unreliable when it comes to assessing timing and sequence—the September 23 date of Glazer’s lunchtime visit with Lee and other drug clerks in the breakroom. (The date is undisputed; Glazer made a memo of the visit on the same date, and also relied on an entry in one of his “weekly field reports,” to confirm the date.) The details of timing are further illumi- nated by Lee’s descriptions of certain sequences, which I sum- marize next, with parenthetical annotations in some instances. Lee testified that he received a blank UDCEA petition from cosmetics clerk Harold on an uncertain date after the disclaimer and before UDCEA’s recognition. (Although Lee waffled con- siderably on the point, he eventually stated his belief that the petition arrived before Haring conducted the brief meeting attended by Lee, Palm, and Harold, supra, but that Haring was not yet aware of the petition when he conducted the meeting.) He further testified that Harold told him when she gave him the petition that the petition had come in via a store fax. (Harold denied that any such transaction occurred, and she further de- nied ever seeing a UDCEA petition in the Drug Center. So, too, did both Palm and Haring.) Lee states that after he received the petition from Harold, he promptly showed the petition to sev- eral other employees (none of whom was called to corroborate Lee), and then took the petition to the breakroom and posted it “behind the door.” (He eventually clarified that, in fact, he posted the petition on a bulletin board that was partly obscured when the breakroom door was open.) Minutes later, said Lee, he was paged to the telephone, and, upon picking up the phone, discovered that “Ed Wright” was on the line, following which Wright outlined to Lee his plans for his new union. (Wright never denied having thus called Lee, and I will assume for these purposes that he did. However, if there is any real signifi- cance to this conversation, it lies in Lee’s affirmation that nei- ther he nor Wright made any mention of a UDCEA petition.) Minutes after this, Lee went to the grocery side of the store, sought out the Local 588 steward for the grocery clerks, and obtained from her a number of Local 588 authorization cards, plus Local 588 buttons, and one or more campaign flyers or memos authored by Local 588. Lee then took these materials back to the breakroom and affixed them to the same bulletin board on which he had posted the UDCEA petition less than a half-hour earlier. Did Lee, in fact, post a UDCEA petition on the bulletin board along with the Local 588 materials? The question is not free from doubt. Lee’s testimony about how he acquired the petition was less than convincing,181 and his own memory that no one ever signed the petition directly conflicts (a) with his own Phase Three questionnaire response;182 and (b) with Glazer’s specific memories that there were at least “four” sig- 181 Harold convincingly denied that she had given such a petition to Lee, and I find it striking that Lee confirmed that the petition’s receipt or existence was never discussed between him and Wright during their immediately-following phone conversation. 182 In the questionnaire, Lee had checked the “Yes” box under ques- tion 4(b) (“In about September 1993. did any Raley’s supervisor or anyone else ask you to sign a petition requesting that the United Drug Center Employees Association (‘UDCEA’) represent you in collective bargaining with Raley’s?”). He then checked the Yes box under ques- tion 6 (“Did you sign the petition?”) natures on the UDCEA petition he saw in the breakroom on September 23.183 Moreover, Haring, Palm, and Harold specifi- cally denied ever having seen any such petition, “posted” or otherwise. However, Haring’s testimony that he never saw such a petition, although credibly stated (and perhaps honestly stated when he appeared on the witness stand on June 5, 1997) is ex- tremely difficult to reconcile with admissions made by Raley’s counsel in a position statement to the Board agent investigating Local 588’s attacks on the recognition. Thus, in a 30-page letter dated January 27, 1994, to the investigator (GC Exh. 177), Attorney Jordan wrote pertinently as follows: [Id. at 17.] During the relevant time period, Mr. Haring will testify he observed a copy of Wright’s petition and Local 588 authorization cards posted on the employees’ bulletin board in the break room. . . . Mr. Haring will truthfully testify that he did not confiscate any of these materials nor remove them from the store. . . . Once Mr. Haring received notice that the UDCEA/UWRU had been recognized by Raley’s, he removed both the petition and Local 588 cards from the bulletin board. During this same time period Mr. Haring observed Local 588 union buttons pinned on the bulletin board. He left those on the bulletin board even after recognition was extended to UDCEA/UWRU. . . . . [Id. at 24.] Although a UDCEA/UWRU petition was posted in the break room, it was next to a large number of UFCW authorization cards. I take these admissions184 as more substantial and reliable evi- dence than anything else in the record that Haring had told company counsel—at some point before January 27, 1994— that, before the recognition, a UDCEA petition had been posted on the breakroom bulletin board, along with Local 588 cards.185 183 Glazer specifically recalled, indeed, he insisted during cross- examination by UWRU’s counsel, that when he saw the UDCEA peti- tion (and Local 588 cards as well) posted on the breakroom bulletin board during his September 23 lunchtime visit with Lee and other drug clerks, the UDCEA petition had “four” signatures on it. However, if so, it is independently clear that a petition with these signatures was never presented to Raley’s. And this, in turn, leaves grounds for wondering how it came to be that the petition was never presented to Raley’s. The answer to the latter question, however, will have to remain one of the never-solved mysteries in the case. 184 There is no doubt that assertions made by a party’s attorney in a position statement submitted to the Board during the investigation of a case can be received in the trial of the case as an admission of that party if those assertions are in conflict with the party’s current litigation position or the testimony of the party’s witness. McKenzie Engineering Co., 326 NLRB 473, 485 fn. 6 (1998), and authorities cited. 185 In giving controlling weight to counsel’s representations in the position statement as evidence that Haring admitted that a UDCEA petition was among the “union” postings in the breakroom prior to the recognition, I recognize that counsel’s representations about what Har- ing would testify to only vaguely resembled (and in part contradicted) what Haring did eventually testify to regarding these matters—that he never saw the UDCEA petition posted on the bulletin board, but that he did see, and removed, the Local 588 cards on the same bulletin board. I recognize, too, that such “admissions” through counsel can arise simply because counsel may not have had his facts straight. Indeed, the admis- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502 Accordingly, Haring not only admitted the fact of the posted UDCEA petition (and, necessarily, his own prerecognition awareness of it) but he admitted this fact at a time when his memory can be assumed to have been far more reliable than it was when he testified nearly 4 years later. However, even if I treat the above-quoted statements of counsel in Raley’s position statement as reliable admissions that a UDCEA petition was indeed posted on the bulletin board (along with Local 588 cards) prior to September 23, these statements do not constitute an admission either, (a) that Haring removed the Local 588 cards prior to the recognition, or (b) that when he did admit- tedly remove the posted Local 588 cards, he “allowed” the petition to remain posted. Although Lee and Haring both stated at various junctures in their examinations that Haring’s “removal” of the Local 588 cards from the bulletin board occurred prior to the recognition, the reliability of their memories on this score is undermined by their common, but independently improbable recollections that, after the “first removal,” but still before September 23, Lee continued to place bundles of such cards on the breakroom table, and Haring continued to remove these “table” cards as well—all as part of an ongoing “game in which Lee would acquire new bundles of Local 588 authorization cards and leave them on the breakroom table (but never again on the bulletin board, Lee insisted), Haring would periodically discover and remove them, and Lee would resupply them, etc., until they both apparently tired of the game some weeks after UDCEA’s recognition.186 Thus, according to Lee, after he originally posted the Local 588 cards, buttons, and other materials on the bulletin board, all these materials, plus the petition, remained posted together for “less than a week” in total. However, when asked how long the Local 588 cards stayed posted after Har- ing’s brief meeting with the employees, he recalled that the cards remained for “maybe three or four days after that, maybe a little bit longer.” (If Lee was right that the petition first ar- sion here would hardly represent the first time in this case that an attor- ney for a party didn’t have his/her facts straight when asserting what would be proved and/or what a particular witness would testify to. But Jordan’s representations were, after all, plain admissions about what Haring had told him or his associate counsel, and I have to assume for these purposes that these admissions were not merely thoughtless or reckless. 186 The prosecuting parties would object that there is no question about the timing of these sequences at all. They would cite Haring’s admissions during the General Counsel’s cross-examination as neces- sarily establishing that the “first removal” of Local 588 cards (from the bulletin board)—and the ensuing “resupply-removal-resupply-game” between Lee and Haring—had already occurred prior to September 23. However, Haring’s “admissions” in this regard cannot be reconciled with either Lee’s or Glazer’s most deliberate and particularized recol- lections of the timing and sequence of things, and I am persuaded that Haring’s admissions in this instance deserve far less weight than might normally be accorded to an admission of an agent of a party. Indeed, I am persuaded that Haring’s own memory of the timing of the “first removal” (from the bulleting board) was itself skewed and merged with his memories of the ongoing series of later “removal” (from the break- room table) incidents, which later incidents, I will find (from Lee’s and Glazer’s accounts) all must have occurred after Glazer’s September 23 visit. rived before the said meeting, then this latter recollection sug- gests that all of the posted materials, including the UDCEA petition, remained posted for a total of at least four, and perhaps as many as 6 or 7 days.) However, Lee further recalled that, on an “afternoon” after this uncertain period (but still prior to September 23, he said) he discovered that the Local 588 au- thorization cards had been removed (even while a few Local 588 buttons still remained pinned on the bulletin board), but that the UDCEA petition remained posted, and continued to remain thus posted for at least a week or more after September 23, when it, too, was “removed,” without anyone ever having signed it. Significantly, however, Glazer specifically recalled that, during his 30–45 minute presence in the breakroom at midday on September 23, not only was the UDCEA petition still affixed to the bulletin board, but so, too, were Local 588 authorization cards and some kind of memo advising that em- ployees should call Glazer at a certain phone number if they had questions about the cards or about Local 588. And this clearly implies, in turn, that Lee’s discovery that the Local 588 cards had been entirely removed from the bulletin board could only have occurred at some point after Glazer’s September 23 visit. (Critically, Lee was quick to contradict the General Coun- sel’s suggestion that he engaged in more than one bulletin- board “posting” of Local 588 cards, and to insist instead that, after the cards from his initial posting were removed from the bulletin board, he thereafter placed additional bundles of cards only on the breakroom table.) Accordingly, treating the September 23 timing of Glazer’s visit as one of the few certainties in an otherwise confused re- cord, and treating Glazer’s particularized memories of what he saw on the bulletin board on that date as likewise reliable, I find that Haring did not remove Local 588’s cards from the bulletin board until some point after Glazer’s visit. Similarly, I am compelled to find that the ensuing conversation between Lee and Haring about this “first removal” also occurred at some point after Glazer’s visit, and not, as alleged in count 3, supra, on a date “during the week before September 23.” Moreover, by extension of the same reasoning, I am compelled to find that the additional admitted instances in which Haring successively removed Local 588 cards which Lee successively placed on the breakroom table likewise could not have occurred “in the week before September 23,” but only on successive occasions after September 23. While the precise timing of these removal incidents may not matter much to the question whether they constituted unfair labor practices (a question discussed in subsection 4), the pre- cise timing certainly affects the strength of the General Coun- sel’s contention that Haring’s actions should be considered as conduct having a tendency to impair Local 588’s prerecogni- tion organizing campaign. (Clearly, if Haring’s removal actions all occurred after the recognition, they could not be said to have in any way impaired Lee’s prerecognition activities on Local 588’s behalf, nor in any way to have influenced employees who signed the UDCEA petitions on which the recognition was based—none of whom worked at Fair Oaks in any event.) The General Counsel’s evidence, elicited through Lee and Glazer, rather clearly shows that the Local 588 cards that Lee had posted on the bulletin board were still there when Glazer con- RALEY’S 503 ducted his lunchtime visit on September 23. By the time Glazer concluded this lunchtime visit, only about 5–6 hours remained before Raley’s would dispatch its letter to Wright conferring recognition on UDCEA. And while it is theoretically possible that Haring’s admitted removal of these posted cards occurred sometime in the 5–6-hour interval after Glazer departed and before the recognition letter was dispatched from Abfalter’s office in Sacramento, there is no more reason on this record to suppose that fact than there is to suppose that this first removal did not occur until some later date. Considering that it was the both the General Counsel’s intention and the General Counsel’s burden to establish that the first removal (and the ensuing con- versation about it between Lee and Haring) occurred at some meaningful point in time prior to UDCEA’s recognition, I judge that this burden is not satisfied by the mere possibility that these events might have occurred sometime between Noon and 6 p.m. on September 23. 4. Nonalleged but fully-litigated misconduct The admitted matters discussed next were not alleged as vio- lations in the complaint, but they were fully litigated and thus may form the basis for finding a violation. Lee started wearing a Local 588 button, acquired from the Grocery steward along with an initial packet of Local 588 au- thorization cards, on the same uncertain date (prior to Septem- ber 23) when he also acquired and posted the UDCEA petition and the Local 588 cards and buttons on the breakroom bulletin board. Haring admittedly told Lee when he first saw Lee wear- ing the button (which I also presume occurred prior to Septem- ber 23) that he shouldn’t wear the button because it violated Raley’s dress code. Although the admonition did not, in fact deter Lee from continuing to wear the button (and Haring took no further action in the face of Lee’s apparent determination to wear the button), the admonition itself was presumptively unlawful, and Raley’s did not come forward with any claim of “special circumstances” that might have excused the admoni- tion.187 Accordingly, I find that Haring’s admonition violated Section 8(a)(1). At some point after Glazer’s lunchtime visit on September 23, Haring removed Local 588 cards posted by Lee on the breakroom bulletin board, and he told Lee he had done this after Lee discovered that the cards were no longer posted. He justified this action to Lee on the apparent ground that the breakroom bulletin board was for “official” notices only. But Raley’s made no showing that it maintained any uniform rule barring the posting of union materials (or other “nonofficial” 187 I rely on Judge Anderson’s unexcepted-to analysis and discussion of authorities in Raley’s, Inc., 311 NLRB 1244, 1248–1251 (1993), previously discussed in part two. Any attempt by Raley’s to relitigate in this case the lawfulness of its “dress code” ban on the wearing of union buttons would have been barred by the doctrine of collateral estoppel (see, generally, Montana v. U.S., 440 U.S. 147, 153–154 (1979); see also, e.g., Schorr Stern Food Corp., 248 NLRB 292, 295 (1980, and authorities cited). Indeed, collateral estoppel would bar any such reliti- gation attempt even though Judge Anderson’s merit determinations were not excepted to, and were thus adopted by the Board pro forma. See, e.g., Paramount Transport Systems v. Teamsters Local 130, 529 F.2d 1284, 1285–1286 (9th Cir. 1976), cert. denied 426 U.S. 908 (1976). materials) on its breakroom bulletin boards, and Haring admit- ted that, prior to IDCA’s disclaimer, he had permitted Lee to post various IDCA notices on the same bulletin board. In the circumstances, I find that even if any such general ban against the posting of nonofficial materials existed, Haring had clearly compromised the ban by allowing the posting of IDCA materi- als. Accordingly, I judge that Haring’s admitted action in re- moving Local 588’s cards from the bulletin board violated Sec- tion 8(a)(1), notwithstanding that the removal was not shown to have occurred prior to UDCEA’s recognition.188 After Haring told Lee he had removed Local 588’s cards from the bulletin board, Lee continued to resupply the break- room with Local 588 cards, which he placed on the breakroom table. Periodically, as part of an ongoing activity that more resembled a game than a serious struggle between manager and worker, Haring admittedly removed these cards, as well, and Lee periodically replenished the stock. Under Republic Avia- tion principles, an employer must permit employees to use nonworktimes and nonwork areas to distribute union literature of all kinds. And breakrooms—and breakroom tables, particu- larly—are almost by definition places that are classically ap- propriate for such distributions. They are places, (a) where employees are invited and expected to recreate and socialize during their nonworktime; (b) where work for the employer is not performed; and (c) where working employees are not ex- pected to be found at all. Moreover, it’s hard to see how or why Haring could have been furthering any other legitimate man- agement interest (e.g., to curb “litter”) when he took it on him- self to periodically remove the Local 588 cards Lee had placed on the breakroom table, particularly no interest that would override employees’ presumptive rights to use such a decidedly “nonwork” locale as a distribution point for union authorization cards. (I would be astonished if one or more decks of playing cards, for example, were not to be found on nearly all of the tables in Raley’s breakrooms throughout the chain. So how could authorization cards be any different in terms of any le- gitimate management interest?) In fact, Haring made no attempt to offer any particularized justification for these latter remov- als; nor has Raley’s made any coherent argument as to why such “break room table” removals would be justified by any particular special circumstances. Moreover, my findings, supra, concerning events at Rancho Cordova show that Second Assis- tant Manager Renfree himself (briefly) placed a UDCEA peti- tion on the breakroom table in that store for employees to do with as they saw fit. In addition, my findings, infra, show that Placerville manager Beard was likewise aware that a “union” petition of some sort had been placed on the breakroom table in her store, and that the only concern she expressed about this to employee Miser was that employees had not signed it. There- fore, in the absence of any proven special circumstances, I find that when Haring removed Local 588 cards placed by Lee on the breakroom table at Fair Oaks, he likewise implicated Raley’s in further violations of Section 8(a)(1), again notwith- 188 Considering the postrecognition timing of these events, I deem it unnecessary to determine whether Haring allowed the UDCEA petition to remain posted after he removed the Local 588 cards from the bulletin board. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504 standing that these violations were not credibly shown to have occurred prior to UDCEA’s recognition, and, indeed, almost certainly occurred after that recognition. C. Alleged “Interrogation” and ”Instruction” at Placerville (Complaint Par. 26) Paragraph 26 of the complaint alleges as follows: On an unknown date during about the week of September 16, 1993, Respondent Raley’s, by Tanya Beard, at Respondent Raley’s Placerville, California syore #462, at a time when Re- spondent UWRU/UDCEA did not represent a majority Re- spondent Raley’s employees: (a) interrogated its employees about why they had not signed the petition requesting that they be represented by Respondent UWRU/UDCEA. (b) instructed its employees to sign the petition re- questing that they be represented by Respondent UWRU/UDCEA. A preliminary note about the complaint’s reference to “about the week of September 16, 1993”: In 1993, September 16 did not fall at the beginning of the week, but on a Thursday. So perhaps the author of the complaint really meant to refer to “about the week in which September 16 fell.” If so, however, are we to assume that the author of the complaint intended to leave open the possibility that the alleged “interrogations” and “instructions” allegedly issued to “employees” by Beard oc- curred as early as the week preceding the week in which Sep- tember 16 fell, or as late as sometime in the following week? Possibly so as to the latter, but probably not as to the former. We know—and so did the author of the complaint, based on affidavits and declarations furnished by Wright to the Region’s investigators by January 1994—that UDCEA peti-tions were not even prepared by Wright until the afternoon of September 15, 1993. Accordingly, the time period so vaguely referred to in paragraph 26 cannot have begun any earlier than September 15, but conceivably could extend even beyond September 23, when Raley’s recognized UDCEA. As will be evident from my dis- cussion in this subsection, such ambiguities of timing persist, and these ambiguities will partially affect my disposition of the counts in question. 1. The credible features in Miser’s testimony To support these counts, the General Counsel relies exclu- sively on the testimony of Placerville drug clerk Gary Miser, concerning a single, brief, one-on-one conversation he recalls having with Placerville Drug Center Manager Tanya Beard. The General Counsel understates the case when she acknowl- edges on brief (p. 277) that “Miser was not a very sophisticated witness[.]” He was clearly confused about not only the timing and sequence of central and surrounding events, but about their very content and import, such as what had occasioned IDCA’s disclaimer, and even who was its president at the time of the disclaimer. (Miser thought that “Kay Sordillo” was IDCA’s president as of September 1993, and that her “retirement” from that post was accompanied by IDCA’s being “dissolved.”) However, his testimony, insofar as it has a consistent core, stands uncontradicted. (Although Beard was still the Placerville Drug Center manager when this case was litigated, Raley’s did not call Beard as a witness.) Accordingly, there is no reason to doubt the consistent features of Miser’s testimony, and the only question of fact is whether he was reliable in every feature of his testimony. As further discussed below, I will reject as a recent embellishment only one aspect of his testimonial ac- count. The credible essence of Miser’s testimony (as distilled from various consistent responses he offered during direct and cross- examination, and as augmented by references in the Local 588- prepared statement he signed in late October 1993, infra) is as follows: On a morning sometime “during the week of Septem- ber 16 . . . or thereabouts,” Miser saw a typed “petition” form on the breakroom table in the Placerville Drug Center, and noticed that it didn’t have any signatures on it. (He vaguely recalled having heard earlier from a fellow worker—he wasn’t sure which—that a “new union” was being formed, but he didn’t read the “petition” in question, and thus was unable to verify that it was a UDCEA petition.) Sometime around Noon the same day, when Miser was taking his lunchbreak in the backroom, Manager Beard leaned out of her nearby office doorway and called Miser into her office. Once Miser joined her, Beard wondered aloud in irritated tones why no one had signed the petition, and she opined further that it was in the employees’ own “best interests” to be represented by a union. Miser disagreed with Beard, saying that he “didn’t think” that signing the petition was “the best thing in our interests to do[.]” They each may have repeated their respective sentiments, and Miser then left Beard’s office. The whole conversation lasted less than 2 minutes. Miser never signed the petition. He saw it again later in the day, still sitting on the breakroom table, still without any signatures on it, but the petition had “disappeared” from the Drug Center by the end of the day. Beard never again brought up the subject with Miser, nor with any other employ- ees in Miser’s presence. During direct examination of Miser, counsel for the General Counsel eventually led him to recall a further supposed state- ment by Beard during the foregoing conversation: “[I]f we didn’t sign the petition, we would have nobody to represent us and they wouldn’t let any other union come in, so we had better sign the union [sic].”(Emphasis added.) For reasons discussed next, this latter recollection strikes me as a plain embellish- ment, or, at best, as a subjective interpretation posing as recol- lection. First, Miser was another of the General Counsel’s late- discovered witnesses. He had responded to the Board agent’s mid-June 1996 questionnaire, and only after this did he give his first sworn affidavit to the Board (on August 13, 1996, 6 days before the trial opened, and 5 days after the complaint had al- ready been amended in anticipation that Miser would sign a sworn affidavit). By the summer of 1996, however, Miser’s memory of underlying events was plainly vague and impres- sionistic—so much so, in fact, that he had even answered, “No” to the following inquiry on the Government’s questionnaire: In about September 1993, did any Raley’s supervisor or any- one else ask you to sign a petition requesting that the United Drug Center Employees Association (“UDCEA”) represent you in collective bargaining with Raley’s? [The UDCEA later RALEY’S 505 became known as the United Wholesalers and Retailers Un- ion (“UWRU”).189 However, Miser can’t be charged with having recently fabri- cated his entire testimony concerning the conversation with Beard, for he had mentioned the incident in a much earlier writ- ten statement, prepared by a representative of Local 588 in late October 1993, while Local 588 was simultaneously investigat- ing its then-recent charge attacking Raley’s recognition of UDCEA and conducting postrecognition organizing activities of its own. Thus, on October 25, 1993, Miser had attended a meeting conducted by Local 588 at a Pizza Hut restaurant, where attendees were invited to sign Local 588 authorization cards. During the meeting, a Local 588 agent interviewed Mi- ser, and Miser signed his name to a statement prepared by the union agent, on a Local 588-prepared form captioned “Unfair Labor Practice Form.” In this early writing, however, Miser did not assert that Beard made any statement to the effect that the Company “wouldn’t let any other union come in.” Rather, in material part, his original statement asserted as follows: During the week of September 16 1993—or thereabouts . . . [a] petition was left on our breakroom table. No employees had signed it over the course of a day or so. My manager Tanya Beard asked my why none of us had signed it because we needed a union and if we didn’t sign it we would have no one to represent us, to help get us better salary ect [sic] and someone to go to if there were problems. She said she thought we should sign it. She also seemed irritable about the fact that no one had signed it. . . . [L]ater that day [the petition just seemed to disappear and was never seen again. There is obvious consistency between Miser’s early statement to Local 588 and the features in his testimony that I have cred- ited. (Indeed, if anything, Miser’s October 1993 descriptions of Beard’s statements contain even stronger suggestions than his testimony did that the focus of Beard’s consternation was her belief that representation by a union—any union—was in the employees’ own “best interests,” because unions help employ- ees get “better salary,” and employees can “go to” their union “if there were problems” with management.) The only obvious inconsistency is that in his early statement, Miser never claimed that Beard said anything to the effect that Raley’s “wouldn’t let any other union come in.” Thus, I find that Miser’s eventual “memory” from the witness stand that Beard also said this was merely a belated embellishment to an otherwise genuine mem- ory concerning the transaction. A further fact deserves recording: Raley’s never received a UDCEA petition containing any signatures or purported signa- tures from any Placerville drug clerks. 189 Wright’s cross-examination of Miser establishes this. However, Miser’s questionnaire was not separately offered into evidence. Rather, only one such questionnaire was received into evidence, that of drug clerk Tim Lee (GC Exh. 40), but the General Counsel acknowledged that Lee’s questionnaire was printed in the same format as all other questionnaires mailed by the Regional Office on June 17, 1996, to “Current or Former Employee[s] of Raley’s.” 2. Analyses and conclusions of law Here, as in other examples previously noted, the author of the complaint has distorted or exaggerated the underlying real- ity, even as that reality was described by the witness or wit- nesses called to prove the complaint. Thus, to characterize the audience to Beard’s statements as described by Miser, the au- thor of paragraph 18 repeatedly uses two false plural nouns and pronouns—“employees” and “they.” In fact, the General Coun- sel’s evidence shows that Beard’s statements were addressed to a single employee, Miser himself. And to characterize Beard’s statements as described by Miser, the author has again selected two highly-questionable verbs—“interrogated” and “in- structed.” But it is hard to discern from Miser’s testimonial account of the brief conversation any “interrogating” of Miser by Beard. (True, the remarks or statements of an employer’s agent to an employee can be construed as an interrogation even when the statements are not couched in a conventionally inter- rogative form, but it is less than obvious from Miser’s account that Beard was seeking a reply from Miser, as distinguished from merely venting her own feelings to him.) And it’s harder still to construe from Miser’s account that Beard was “instruct- ing” Miser to “sign the petition.” Accordingly, if the merit of the counts in question turned purely on the literal accuracy of the complaint’s depictions of the incident, those counts would have to be dismissed as overblown. Nevertheless, Miser’s more modest, but uncontradicted tes- timony is still sufficient to ground a finding that Beard’s state- ments had a coercively pressuring quality. Thus, even if (as may well be the case) Beard only intended to convey to Miser her belief that it was in the employees’ “best interests” to be represented by a union (without regard to which union), she delivered these views in irritated tones, implying that employ- ees who had failed to sign the petition were too stupid to recog- nize their own “best interests.” Thus, Miser could reasonably conclude that, to stay on Beard’s good side and enjoy her re- spect, he ought to sign a petition for union representation. Moreover, that Miser contradicted Beard’s opinion about what was in the employees’ best interests, and did not sign the peti- tion, do not negate that Beard’s statements would have a fore- seeable tendency to “interfere with, restrain, or coerce” Miser in exercising the Section 7 right to withhold his signature from the petition in question or from any other manifestation of sup- port for a union. Accordingly, I conclude as a matter of law that Beard’s statements implicated Raley’s in a violation of Section 8(a)(1). It is a closer question whether Beard’s statements can rea- sonably be construed as a form of unlawful “assistance” to UDCEA. On the one hand, the credited core of Miser’s account is arguably too vague or equivocal to satisfy the General Coun- sel’s burden of proof by a preponderance on critical elements— either (1) that Beard knew or believed that the “union petition” in question was a petition for UDCEA, or (2) that Beard was trying to steer Miser into manifesting support specifically for UDCEA, “rather than” for Local 588. On the other hand, we know that, by the afternoon of September 15, Wright or his employee-allies had faxed UDCEA petitions to many stores, and, by the afternoon of September 16, Abfalter had dispatched memos to the Drug Center managers briefing them on recent DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 506 developments—i.e., Eidam’s disclaimer and the efforts of cer- tain unnamed “employees” to form a “new union”—and further counseling the managers on how to handle expected store visi- tations by Local 588’s organizers. However, in the end, what we can’t know with any reason- able certainty is when Beard had her brief conversation with Miser. And the ambiguity on this point of timing strikes me as critical to the merits of the General Counsel’s “assistance-to- UDCEA” contention: If the transaction occurred on the after- noon of September 16, or at any prerecognition point thereafter, we might properly infer—especially in the absence of any con- trary testimony from Beard—that Beard was aware (from Ab- falter’s memos) that two unions were vying for the right to represent the drug clerks. And, under such a scenario, her re- marks to Miser could well have been intended—and understood by Miser—as attempts to induce Miser to sign a petition favor- ing only one of those competing unions. (Which union’s “peti- tion” was on the breakroom table would nevertheless remain in doubt, even under this scenario.) However, if the conversation with Miser occurred as early as September 15, there would be no identifiable basis in the record for inferring that Beard was then aware that two unions were organizing. Therefore, under the latter scenario, Beard could not have been attempting to steer Miser away from Local 588, or towards UDCEA; rather, the worst that could be said about Beard’s statements is that, in implying that employees were stupid for failing to recognize that union representation was in their best interests, she was unlawfully interfering with Miser’s right not to sign a petition of support for any union. It was the General Counsel’s burden to demonstrate by a preponderance of the credible evidence that Beard’s statements constituted unlawful “assistance” specifically to UDCEA. In my final view of the evidence, the lingering ambiguities of timing and the related ambiguities as to what Beard knew about the organizing picture at the time of her conversation with Mi- ser make it impossible to find that Beard’s statements were made with any consciousness of UDCEA’s existence or of Local 588’s rival organizing designs on the drug clerks. Ac- cordingly, I will dismiss the complaint insofar as it alleges that Beard’s statements constituted unlawful assistance to UDCEA in violation of Section 8(a)(2). Moreover, it scarcely needs adding that, even if Beard’s conduct were construed as a viola- tion of Section 8(a)(2), it could not be relied on to find that UDCEA’s majority-showing was “tainted” by Beard’s sup- posed “assistance” to UDCEA. This is because UDCEA’s ma- jority-showing included no petitions signed by any Placerville employee, and Beard’s statements to Miser were never shown to have been communicated—not even on a second-hand ba- sis—to any of the employees in other Drug Centers who did sign UDCEA petitions. D. Events at Ukiah (Complaint Pars. 21(c) and (d)) 1. Introduction and overview; preliminary observations on the question of timing Paragraph 24 of the ultimate complaint alleges as follows: Respondent Raley’s, at Respondent Raley’s Ukiah, California store #388: (c) About September 21, 1993, by Andy Graves, inter- rogated its employees about its employees’ union activi- ties, and created the impression that the union activities of its employees were under surveillance by Respondent Raley’s. (d) About an unknown date between about September 15 and September 23, 1993, by Andy Graves, at a time when Respondent UWRU/UDCEA did not represent a ma- jority of Respondent Raley’s employees, told employ-ees that Respondent Raley’s had instructed him to throw out all of the representatives of Local 588, while Respondent Raley’s concurrently allowed representatives of Respon- dent UWRU/UDCEA to use Respondent Raley’s facilities. In trial on September 24, 1996, I permitted the General Counsel, over the respondents’ objections, to amend the com- plaint to add these counts.190 The new counts were based on information recently furnished to the General Counsel by two pro-Local 588 drug clerks in the Ukiah Drug Center, Rebecca Harmon and Valerie Jack, both of whom had given statements and affidavits to, respectively, an agent of Local 588 and a Regional Office investigator, during the course of the original, on-the-ground phase in latter 1993 of the investigation into Local 588’s charge attacking the recognition. In those original statements and affidavits, Harmon and Jack had neglected to mention the matters that formed the basis for the added counts, and their testimony further shows that they first reported these matters only in responding to the Regional Office questionnaire mailed to “Current or Former” Raley’s drug clerks in mid-June 1996 (i.e., during phase three of the investigation). The new matters have to do with statements that Harmon and Jack now say they recall being made by Ukiah Drug Center Manager Andy Graves in the course of separate, one-on-one conversa- tions with each of these drug clerks on the same morning in September 1993—the morning after Harmon and Jack had attended a Local 588-sponsored meeting held the previous eve- ning at the Wright Stuff Pizza Parlor in Ukiah.191 Graves, called as a Raley’s witness, materially denied making the statements separately attributed to him by Harmon and Jack. Harmon, the General Counsel’s sole witness in support of count (d), testified in material substance as follows: At 8 a.m. on the morning in question, just after Harmon had clocked in and she and other drug clerks were in the backroom getting their materials ready to take to the sales floor, she became in- volved in a loud and angry argument with coworker Susan Piacentini relating to the Local 588 meeting the night before. Manager Graves was some 30–50 feet away in the backroom when the argument started, but he walked over to the feuding clerks and told them to knock it off and get to work. Then, in the moments after thus intervening, Graves said to Harmon that he had been afraid that “things would get ugly,” following this 190 These amendments were among a larger list of proposed amend- ments first tendered by the General Counsel on September 18 (GC Exh. 7), a month after the trial began. And this list was itself expanded on September 24, by a “Revised Motion to Amend” (GC Exh. 8). 191 The spelling of “Wright” is not a typo, however ironic. It is the spelling suggested by counsel for the General Counsel during her ex- amination of Harmon, and the spelling that Harmon affirmed. RALEY’S 507 with the statement, “You know if 588 comes into the store, I’m going to have to escort them to the door.” (Graves’ intervention in the employees’ dispute is not alleged or argued to have been unlawful; rather, it is only his latter alleged statement to Harmon that inspired the count (d) amendment.) While Graves agreed roughly with Harmon’s account of his intervention to break up the feuding workers (i.e., that he said he was “afraid things would get ugly,” and that he told the feuding parties to get on with their work and behave like professionals), he flatly denied making any statement to Harmon whatsoever about what he would do if Local 588’s agents entered the store. Jack was the General Counsel’s sole witness in support of the alleged interrogation/impression-of-surveillance allegations set forth in count (c). She testified in material substance that, at about 10 a.m. the same “morning after,” Graves approached her and questioned her about the extent of support Local 588 had received the night before at the “card-signing meeting.” Graves broadly denies having had any union-related conversation with Jack on the morning in question, and he specifically denied that he ever questioned Graves about the meeting, insisting that he didn’t regard it as any of his business. Setting aside for the moment the credibility disputes about who said what on the morning in question, I retain substantial doubt about the date of Local 588’s pizza meeting, and, in turn, about the date of the “morning after” events in the Drug Center. Specifically, although I am prepared to accept Harmon’s and Jack’s common memories that the pizza meeting occurred on a “Monday” evening in “September” (following a preceding weekend during which Jack states she had made contacts with co-workers, including some who had already signed Local 588 authorization cards, to urge them to attend the pizza meeting on the following Monday), I doubt that the events in question oc- curred (as both Harmon and Jack claimed to recall), on Mon- day, September 20 (i.e., the same day on which Local 588 Or- ganizing Director Jacques Loveall had called a staff meeting to issue instructions to his organizers and business representatives, inter alia, to start organizing among the drug clerks and setting up pizza meetings). Indeed, I deem it more likely that the pizza meeting, and, in turn, the “morning after” events, occurred, respectively on the Monday and Tuesday of the following week, i.e., on September 27 and 28. (A perspicacious reader may already have a sense of why I doubt that the pizza meeting occurred as early as Monday, September 20. In any case I will elaborate this point—and my reasons for selecting Monday, September 27 as the likely date of the pizza meeting—in a sup- plemental portion of my concluding analyses.) Moreover, I reach these judgments despite the fact that Graves, too, appears to have adopted the suggestion from Raley’s counsel that his “morning after” intervention in the feud between Harmon and Piacentini occurred sometime prior to September 23. But be- cause of these judgments, and for purposes of further findings below about who said what on the morning after, I will refrain from mentioning the dates of either the pizza meeting or the “morning after” events. 2. Some of the undisputed surrounding circumstances As of September 23, there were 14 drug clerks employed in the Ukiah Drug Center, and none of them had signed any of the UDCEA petitions received and relied on by Raley’s to confer recognition on that date. Indeed, there is no evidence even that a UDCEA petition had been in circulation among the Ukiah drug clerks, much less that Wright or any other UDCEA sup- porter had visited the Ukiah Drug Center, or had otherwise campaigned on UDCEA’s behalf among the Ukiah drug clerks. By contrast, the record affirmatively shows in the aggregate that Local 588 received authorization cards from an uncertain number of the Ukiah drug clerks. Harmon’s and Jack’s testi- mony, although not entirely harmonious as to how many cards (or what kind of cards) had been signed at or before the pizza meeting, commonly suggests that some of the drug clerks had already signed Local 588 cards prior to the meeting, and that all but two of the drug clerks (Piancentini and Ramona Ehrets) had signed cards by the end of the meeting. Another indication that Local 588 had received support at least by October 1 is that, on October 1, Local 588 filed a petition with the Regional Director in Case 20–RC–16978 (Lo. 588 Exh. 13, p.3) seeking an elec- tion in a single-store unit composed of Ukiah drug clerks. And in this petition, Local 588 asserted, inter alia, that the petition was “supported by 30% or more of the employees in the unit,” and that Local 588 had made a “request for recognition” on October 1. (Under established procedures in representation cases, Local 588 would have been required to show evidence of its assertion that it enjoyed at least “30 percent” support in the single-store unit, typically by furnishing authorization cards signed by at least 30 percent of the employees in the petitioned- for unit.) This petition further acknowledged that there already existed a “recognized representative,” described on the petition as “Ed Wright, unlawfully purporting to be United Drug Center Employees Assn.” However, exactly when Local 588 had ob- tained its underlying evidence of at least “30% support” is a separate question, one whose answer would appear to depend in significant part on when Local 588’s pizza meeting was actu- ally held. Moreover, another, related question raised by the testimony is whether the cards thus obtained were in the name of Local 588, or in the name of Local 588’s hastily-created “UDCEA” “affiliate”; and the answer may depend on whose memory you credit—Harmon’s or Jack’s—and on other fac- tors, as well, such as the prosecuting parties’ failure to produce easily available evidence that would have clearly told the tale.192 192 Harmon testified that the card she signed at the pizza meeting was for Local 588’s “UDCEA.” Jack testified that the cards circulated at the meeting were simple Local 588 cards, and that the Local 588 “UDCEA” cards weren’t circulated until a later date. The General Counsel asserts on brief that Harmon was “apparently confused” in her own testimony about which kind of card was signed at the pizza meet- ing, and proffers Jack’s account as the correct one. But the General Counsel cites no reason for thus impeaching Harmon’s memory and favoring Jack’s instead. On the other hand, an obvious prosecution motive for rejecting Harmon’s memory would be that if Harmon were correct, the meeting clearly didn’t happen on September 20 (at which point there is no evidence that such “UDCEA” cards had even been printed by Local 588, much less evidence that they were in circulation), but only at some point after the recognition, the earliest point at which the record shows that such “UDCEA” cards were put into circulation by Local 588. Moreover, the cards signed at or before the pizza meeting would have clearly told the tale on this score, but they weren’t pro- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 508 The record further shows that Harmon and Jack were among the most visible and active of Local 588’s supporters among the Ukiah drug clerks, and that they were equally active in Local 588’s postrecognition efforts to persuade the General Counsel to seek to disestablish the Raley’s-UWRU bargaining relation- ship. (Indeed, they both admitted that they both desired that very result.) Jack had helped organize the pizza meeting where, she says, five or six other drug clerk attendees signed authoriza- tion cards in favor of Local 588. (She testified that she con- tacted all or nearly all of the 13 other drug clerks on the week- end preceding the meeting, to advise them that the meeting would be held the following Monday.) Also worth noting for credibility-assessment purposes is that, in the aftermath of UDCEA’s recognition, Harmon and Jack continued to furnish information to Local 588 and to Regional investigators aimed at supporting Local 588’s charge attacking the recognition. Thus (as variously indicated in counsel for the General Counsel’s references to the pretrial statements from Harmon and Jack that were furnished to the respondents for cross-examination, and as further indicated during their respective cross-examinations), the record shows (1) that each of them furnished handwritten statements to Local 588 on November 4, 1993, on the “Unfair Labor Practice” form used by Local 588 to record employee responses to its systematic efforts to find evidence to support its October 4 charge attacking the recognition; (2) that they both signed one or more group letters to the Regional Director in November 1993, seeking, inter alia, a thorough investigation into Local 588’s charges attacking the recognition; (3) that were both interviewed by and gave affidavits to a Board agent on December 21, 1993; (4) that they signed and returned Re- gional questionnaires in June–July 1996; and (5) that they signed followup affidavits to the Board dealing with the matters covered by their trial testimony only after the March 29 con- solidated amended complaint had itself been twice amended in major ways only shortly before the trial began, without includ- ing the allegations that are now in question. Indeed, it is undis- puted that the alleged “morning after” statements of Graves as described by Harmon and Jack in the trial, were matters that these witnesses had never reported either to Local 588 or to Regional investigators during the original, on-the-ground phase of the investigation in latter 1993. duced in this trial by either Local 588 or by the General Counsel, even though the originals or copies of these cards were presumably available in both Local 588’s files and in the representation case files maintained in the Regional Office. Moreover, as I note further in connection with the significant ques- tion whether the pizza meeting occurred prior to, or following, the September 23 recognition of UDCEA, essentially the same observa- tions can be made when it comes to the prosecuting parties’ failure to introduce the cards (or Local 588’s business records, or the testimony of one or more of its agents said to have attended the pizza meeting) to more convincingly establish the date of the pizza meeting, under cir- cumstances where it was clearly in those parties’ common interest to establish (if true) that the pizza meeting (and the “morning after” events) occurred prior to the recognition of UDCEA. 3. Concluding findings and analyses (i) Graves’ alleged statements to Harmon and Jack The complaint alleges that Manager Graves “told employees that Respondent Raley’s had instructed him to throw out all of the representatives of Local 588.” It is obvious that Harmon’s testimony in support of this count was rather more modest: She recalls only that Graves said to her, alone, “You know if 588 comes into the store, I’m going to have to escort them to the door.” As previously noted, Graves denies making any such statement. The credibility dispute between Harmon and Graves presents questions that I think are unnecessary to resolve. This is be- cause, even if Harmon’s memory from the witness stand of what Graves said to her were given substantial credence, I would judge, consistent with analyses in section V, infra, that such a statement would be a lawful expression of Raley’s right to bar Local 588’s nonemployee representatives from conduct- ing organizing or other solicitation activities within the Drug Centers. Nevertheless, were a credibility resolution necessary, I would judge that Harmon’s account is not sufficiently reliable, particularly in the face of Graves’ credibly-uttered denial, to satisfy the General Counsel’s burden of persuasion. Harmon’s failure to report the supposed statement until the late summer of 1996, in response to the government’s questionnaire, easily invites the suspicion that her belated memory of the statement was a fictional embellishment. And her explanation for failing to report the supposed statement either to Local 588 or to the Board investigator during the original investigation (an expla- nation which the General Counsel elicited during Harmon’s redirect examination, and which the General Counsel also prof- fers on brief) is decidedly less than convincing. Thus, Harmon claimed, echoed by the General Counsel on brief, that when she gave statements to Local 588 and the Board’s investigator in latter 1993, her own “focus”—and the “focus” of both Local 588 and the Board investigator, as well—was exclusively on a postrecognition event (involving a visit or visits by Wright to the Ukiah store). While it may be true that the postrecognition events were the primary subject of her original statements to Local 588 and the Board agent, it is idle to suggest that the postrecognition event was the “focus” of the investigation that was then being conducted in tandem by both Local 588 and the Regional Office. Indeed, the record clearly shows that the common investigative “focus” in that period was on Local 588’s charge (filed on October 4, in Case 20–CA–25649) that Raley’s had given unlawful prerecognition assistance to UDCEA’s organizing effort. And it was this charge which was, in fact, under investigation when the Board agent took an affi- davit from Harmon on December 21, an affidavit in which she again admittedly failed to disclose the “morning after” state- ment by Graves that is now the subject of count (d).193 193 Harmon’s affidavit to the Board agent was not tendered into evi- dence, and the case number associated with that affidavit was not sepa- rately made a matter of record. However, Jack’s affidavit to the Board agent, given the same day as Harmon gave hers, was received into evidence (GC Exh. 144), and it indicates on its face that it was taken in connection with the charge in Case 20–CA–25649, the October 4 charge attacking the recognition. RALEY’S 509 Summing up, we know that when Harmon gave statements to both Local 588 and the Board’s investigator in latter 1993, she was a Local 588 supporter who admittedly shared in Local 588’s wish to disestablish the Raley’s-UWRU bargaining rela- tionship, but she did not tell either Local 588 or the Board in- vestigator about the supposed morning-after statement by Graves. Local 588 clearly had an early and ongoing interest in unearthing Harmon’s memory of Graves’ supposed statement, yet never elicited that memory at a time when it was conducting its investigation. Separately, the Board agent was investigating Local 588’s October 4 charge attacking the recognition when he took Harmon’s affidavit in December 1993, and operated under an independent professional obligation to inquire into all matters relevant to that charge. Yet the Board agent, too, failed to elicit Harmon’s memory about the supposed morning-after incident with Graves. Accordingly, I remain unpersuaded that the only reason Harmon neglected to timely report the supposed statement that now looms so large was because it was not the “focus” of the investigations then being conducted. As to the credibility dispute between Jack and Graves, I judge that Jack’s version, tracing from a claimed memory that she likewise admitted was not exhumed until she was complet- ing one of the Region’s questionnaires in the summer of 1996, is likewise too suspect to satisfy the General Counsel’s burden of persuasion in the face of Graves’ credibly convincing deni- als. Indeed, the same objections noted previously can be leveled against Jack’s similar attempts to explain why she failed to mention the alleged morning-after “interrogation” by Graves in either her November 4, 1993 statements to Local 588, or in her December 21, 1993 affidavit to the Board agent. True, Jack again cited the “focus” of these statements on the postrecogni- tion event. However, in Jack’s case, such explanations are, if anything, even more obviously dubious than in Harmon’s case: To start with, Jack’s December 21 affidavit to the Board agent (identified on its face as being taken in connection with the October 4 charge in Case 20–CA–25649) shows that, in fact, the postrecognition incident was not the sole “focus” of the Board agent’s questioning of her, but rather, that she was also questioned about prerecognition matters. Thus, the first sub- stantive paragraph of her affidavit (GC Exh. 144, p. 1) states as follows: Prior to the date when Raley’s informed the drug clerks at the Ukiah store that it had recognized Ed Wright’s organization . . . I had never seen or heard anything about Wright’s organi- zation except for the Employer’s memos. Management at the Ukiah store never said anything to me then about Wright’s organization. I never saw any petitions or saw any come over the FAX from his organization. Moreover, when reminded on cross-examination that she had, indeed, discussed prerecognition matters with the Board agent, Jack shifted ground: She now explained that Graves’ question- ing of her about the “results” of the card-signing meeting had been “too minor” as far as she was concerned to warrant her volunteering of that information either to Local 588 or to the investigating Board agent. I ignore the irony implicit in Jack’s shifted explanation—that the employee-victim of the coercive “interrogation” belatedly alleged in the complaint appears to have been left so unphased by the interrogation at the time that it never occurred to her until the trial was drawing nigh in the summer of 1996 to report it to those who shared, with her, a keen interest in far more timely discovery of it. Ironies aside, the shifted explanation was itself ludicrous, particularly when considered in the light of Jack’s earlier testimony on direct examination, during which she had pointedly recalled that when Graves questioned her about the “results” of the night-before meeting, she had scoldingly replied, “You can’t ask me that. It is a violation of the NLRA. But if you really want to know, the majority of us signed but two.” (Jack further explained that she had acquired her knowledge of Federal labor relations law in the pizza meeting the previous evening, when Jacques Loveall told her and others that it would “violate the NLRA” for her managers to question her about union meetings and other such things.) With all the foregoing and all other prior findings in mind, I sum up my reasons for finding that Jack’s testimony is too sus- pect to sustain the General Counsel’s prosecutory burden: Jack was an early and ongoing supporter of Local 588, and a source of intelligence to and witness for Local 588 in its postrecogni- tion campaign to persuade the General Counsel to take steps before the Board to nullify and set aside the hated bargaining relationship between Raley’s and UWRU. She can be presumed to have known in the early months following the recognition that Local 588 was anxious to discover any evidence that an agent of Raley’s had “violated the NLRA” prior to the recogni- tion. Despite this, she did not report what she claims to have regarded all along as such a “violation” either to Local 588 or to the Board agent who took her affidavit in December 1993. Indeed, she claims that the incident was “too minor” to have persisted in her conscious memory, and that her dormant mem- ory of the episode did not resurface in her consciousness until the summer of 1996, triggered by the Region’s phase three investigative questionnaire, following which (on September 18, 1996, after the trial opened) she was now so confident of the recovered memory that she signed a Board affidavit incorporat- ing this memory. The scenario is improbable; it is far easier to believe that Jack’s belatedly recovered memory was a false one. Accordingly, I dismiss the both of the counts in question as not credibly proven. (ii) The separate question of timing I remain more than a little troubled by the General Counsel’s curiously exclusive reliance, for purposes of establishing that the alleged violations occurred before UDCEA’s recognition, on Harmon’s and Jack’s common memories from the witness stand, more than 3 years after the fact, that Local 588’s pizza meeting occurred prior to the recognition, specifically, on Monday September 20—the recalled date that caused Harmon and Jack to be sure, in turn, that the supposed morning-after transactions with Graves took place on September 21. I regard it as nearly impossible for them to have independently recalled, more than 3 years after the fact, and without recent reference to independently reliable records, that the pizza meeting occurred on precisely that particular “Monday the 20th.” However, they were not invited by the General Counsel to explain how they DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510 had come to recall that particular date, as opposed to some other “Monday” in “September,” and they gave no other spe- cific indication as to how they had commonly arrived at that date for purposes of their testimony. The General Counsel would probably cite their additional testimonial recollections that the pizza meeting occurred on a “Monday” that fell “after” the (Tuesday) September 14 disclaimer and “prior to” the (Thursday) September 23 recognition of UDCEA, leaving only the intervening Monday, September 20, as a possible candidate. But the value of even those recollections is open to question, not least because I have found their surrounding recollections to be quite unreliable. Independent of that, I am left wondering how they could be so certain, 3 years after the fact, that the pizza meeting preceded the recognition, especially when it is not evident from their testimony exactly when they first learned that UDCEA had been recognized? Even giving them the bene- fit of more doubt than I think they deserve, they might have been confident only that the pizza meeting was held before the uncertain point when they learned of the recognition. But what if they did not learn of the latter event until some days after September 23—for example, on the following Monday? Teel did not sign the letter to employees announcing the recognition until some point near 6 p.m. on September 23. And even as- suming, although there is no such evidence, that the copies of this letter that were mailed to employees’ homes and dispatched for posting in the Drug Centers were sent out the first thing the next morning, the earliest they could have been received would not be until sometime on Friday, September 24. Indeed, I re- gard it as easily possible, given the geography and the logistics, that an additional 2-weekend days would have elapsed before the letters were received through the mail and/or posted in the Drug Centers, thus making the recognition a matter of common knowledge only on or after Monday, September 27. And here it’s worth noting for these purposes, as well as for further pur- poses below, that the city of Ukiah lies in Mendocino County, near the Pacific coast, about 160 miles of hard driving from Local 588’s and Raley’s Sacramento headquarters. (The drive requires transiting a coastal mountain range via a State high- way, and, according to a reliable compendium of such data, the drive between the two points takes upwards of 5 hours.) My doubts are further enhanced by other circumstantial con- siderations that make it independently unlikely that the pizza meeting even could have been held as early as Monday, Sep- tember 2. Some of these considerations are linked to the ab- sence from the record of evidence that was readily and uniquely available to the General Counsel and/or to Local 588 that might have confirmed that date. These I will discuss later. Here, I mention only those affirmative matters of record that alone make it improbable that the pizza meeting occurred on Mon- day, September 20. According to Organizing Director Jacques Loveall, it was not until that Monday that he assembled Local 588’s staff and instructed them to begin the on-the-ground or- ganizing phase. Thus, in that meeting, he states he instructed the assembled staff to begin “covering” the Drug Centers, i.e., to make personal contacts with drug clerks known or believed to be sympathetic to Local 588 (or with grocery-clerk-member intermediaries who could steer them to sympa-thetic drug clerks), to make personal visits to the Drug Centers to introduce themselves to drug clerks, deliver an organizing pitch, and hand out authorization cards, and to set up pizza dinners in the neighborhoods of the Drug Centers to draw a wider audience of drug clerks and allow for a more extensive organizing pitch. Considering this, are we to assume, neverthe-less, that on the very same evening, such a process had not only begun, but that a pizza meeting had already been set up and conducted in Ukiah? It takes advance planning and notice to set up such a meeting, as Jack’s testimony confirms was indeed the case at Ukiah. Thus, according to Jack, the Monday pizza meeting had been set up prior to the weekend during which she passed word of it to her coworkers. And if this intervening weekend did not occur until after the meeting date had already been arrived at, we would either have to posit that the meeting had already been set up prior to the September 20 point when Loveall issued his general instructions to the staff (which is inherently dubious and as to which there is no supporting evidence) or that ar- rangements were not made for the “Monday” meeting until some point after Loveall issued these campaign kickoff instruc- tions to the staff (which would be consistent with both Loveall’s and Jack’s accounts, but which would also necessar- ily imply that the “Monday” in question was no sooner than the following one, i.e., September 27). My doubts are deepened when I consider the General Coun- sel’s conspicuous failure to seek to corroborate Harmon’s and Jack’s memory as to the pizza meeting date and surrounding circumstances by independent and inherently more reliable evidence of the timing. I have already noted that the dates on authorization cards signed at the meeting would have been more reliable evidence of the meeting date, yet these cards were not produced.194 Cards aside, Harmon said that Loveall spoke at the meeting, and that another Local 588 agent was present, though she couldn’t recall the latter’s name. Jack also recalled that Loveall was present and spoke at the meeting, and she named two other Local 588 agents—Tom Pate and Joe Daly— as likewise having been in attendance. Yet none of these union agents was called by the General Counsel to corroborate either the date of the meeting or any other particulars of the meeting as variously described by Harmon and Jack. Indeed, of all those named agents, only Daly was called as a prosecution witness, and then only for another purpose—to describe his receptions during visits to the Rohnert Park Drug Center (section V, infra). He was never questioned about events associated with the 194 The prosecuting parties might now explain this failure on the ground that the cards would have disclosed the identities of the card- signers. But such arguments were never offered by way of explanation for the failure to tender them, and, in the circumstances, such argu- ments would not have been persuasively exclupatory to this judge in any case. Harmon and Jack had already effectively disclosed the identi- ties of the card signers when they commonly testified that that, of all the drug clerks, only Piacentini and Ehrets had not signed cards prior to, or during the pizza meeting. In any case, the issue is the date of the pizza meeting, not the identities of the card signers. And, as the prose- cuting parties both know well—from their experiences in this trial if for no other reason—there were procedural devices available, had they only asked, that could have permitted examination of the dates on the cards while maintaining the confidentiality of signatures or other in- formation on the cards that would identify the signers. RALEY’S 511 Ukiah store. Moreover, the record independently shows clearly (see, e.g., Jacques Loveall’s examination in the April 16, 1997, trial session) that Local 588 agents conducting organizing (among the drug clerks or otherwise) typically submitted “weekly field reports” of such organizing efforts to Local 588. Yet no effort was made by either the General Counsel or coun- sel for Local 588 during the prosecution’s case-in-chief to au- thenticate and tender any such records (or any others, such as claims or receipts for the cost of the pizza dinner) for purposes of corroborating the date or other circumstances of the Ukiah pizza meeting. (Significantly, in connection with her examina- tion of Daly regarding Rohnert Park visitations, and in her ex- amination of Local 588’s Glazer regarding visitations to Fair Oaks [section V, infra], these witnesses, and counsel for the General Counsel herself, indicated that they relied on these records for purposes of establishing relevant visitation dates.) There are other considerations that likewise make it improb- able that the pizza meeting occurred on September 20, but probable that it occurred no earlier than the following Monday, September 27. Jacques Loveall acknowledged during adverse examination by counsel for Raley’s that there did exist a “Weekly Field Report” in Local 588’s records indicating that an agent named Ernie Thompson made a drug clerk organizing visit to Ukiah on September 20. But neither Harmon nor Jack ever mentioned Thompson’s presence at the pizza meeting. And Loveall himself, seeking to explain how it was that Thompson could have both attended the staff meeting at Local 588’s Roseville (Sacramento-area) headquarters on September 20 and then driven to Ukiah the very same day, stated: “Well, he’s an ambitious rep. He might have been at the meeting and then went all the way to Ukiah.” Moreover, against any belated argument that maybe Thompson was one of the attendees with Loveall at the pizza meeting supposedly held the same night, I note that if Lovevall had, indeed, attended such a meeting with Thompson that night, he wouldn’t have had to speculate about the matter of Thompson’s visit on September 20; he would have recalled that he was himself in Ukiah with Thompson that night. (And of course Loveall himself was never invited even to say that he had attended a pizza meeting in Ukiah, much less to identify the date.) On the other hand, if, as Loveall speculated, Thompson had both attended the staff meeting in Roseville and then driven to Ukiah the same day, Thompson’s trip to Ukiah would have been to do what Loveall had instructed him and others in the meeting to do—begin the process of making orga- nizing contacts with drug clerks and setting up pizza meetings with them. Thus, Thompson’s visit would most probably have marked his first contact with Ukiah drug clerks, during which he would have begun to make arrangements for a pizza meeting that could not have been held until later, i.e., until an interven- ing weekend had passed during which Jack spread word of the meeting to her coworkers, i.e., not until the following Monday, September 27. Accordingly, even if (contrary to my credibility resolutions and judgments on the merits as set forth earlier) the “next morning” conversations with Graves occurred as described by Harmon and/or Jack, I would find they occurred no sooner than on the morning of Tuesday, September 28, 4 days after Raley’s had already recognized UDCEA based on its majority-showing obtained by September 23. V. ALLEGED DISCRIMINATORY DENIAL OF STORE ACCESS TO LOCAL 588’S AGENTS A. Introduction In this section, I address a series of counts that deal with visi- tations by Local 588’s representatives to four different Drug Centers during the organizing window period—Benicia and Fairfield on September 19, Fair Oaks on September 23, and Rohnert Park on at least two uncertain dates (both after Sep- tember 20, as I will find, but the latter on or before September 23). Overall, these counts allege that Raley’s unlawfully re- fused to allow the Local 588 agents to make in-store organizing contacts with drug clerks, all under circumstances where Raley’s “concurrently allowed representatives of Respondent UWRU/UDCEA [referring in fact to Ed Wright] to use Re- spondent Raley’s facilities” (referring in fact to the “upstairs” office occupied by Wright for two hours at Benicia on Septem- ber 18). The facts relevant to the denial-of-access counts were well-known when Local 588 filed its original charge, on Octo- ber 4, 1993, attacking the recognition of UDCEA. Neverthe- less, none of these counts were alleged in the amended consoli- dated complaint of March 29, 1996, in which the recognition was first attacked as unlawful. Instead; the denial-of-access counts first appeared only in the “Second Amended Consoli- dated Complaint” of August 8, 1996, the radically expanded pleading that issued only shortly before the trial was due to begin. All such denial-of-access counts depend for their merit on a prosecution legal theory of “discrimination” that I will find unsupportable—that Raley’s, having “allowed” Wright to “use” its Benicia “facilities” for UDCEA organizing purposes on September 18, was now legally obliged to give Local 588’s nonemployee representatives the same kind of in-store access and use of its facilities for its own organizing purposes. I have already telegraphed some of the reasons that will cause me to reject this theory, and I will elaborate on those reasons more systematically in the concluding analyses in this section. Detailed findings relating to the particular visitation events at the four Drug Centers are probably unnecessary, for there is no real dispute about the facts, nor about Raley’s position regard- ing the accessibility of its premises to Local 588’s nonem- ployee organizers. Thus, as discussed previously (in part three, section I), Raley’s had made its position clear on this matter more than a year earlier, on June 4, 1992, when Charles Collings, Raley’s president and chief executive, wrote to Local 588’s chief executive, Jack Loveall, stating pertinently (empha- sis added): As you know, union representatives, like any other member of the general public, are allowed in our stores for only one rea- son, to shop. They have no right to access to non-public areas, such as those described above [i.e., “backrooms of the stores and behind department counters”]. Moreover, before the Local 588 visitations occurred that are now in question, Labor Relations Chief Abfalter had already effectively instructed the Drug Center managers not to allow DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512 Local 588’s representatives to talk to working employees on the sales floor, and not to allow them any access whatsoever to Drug Center backrooms or breakrooms. (Thus, Abfalter stated in his first memo to Drug Center Managers on September 16, “Grocery Clerks Local #588 Business Agents or Organizers have no right to visit with our Drug Center employees. Espe- cially, they have no right of access to our break rooms or back room”). And although the particular context and the details of the managers’ behaviors at the four Drug Centers vary in each case, there is no doubt that in each case the local managers acted consistent with Abfalter’s instructions. Indeed, the undis- puted facts associated with Local 588’s September 19 visitation to the Benicia Drug Center alone are sufficient to present squarely the legal question common to all such counts: Did Local 588’s representatives enjoy an access entitlement for organizing purposes not otherwise available to them because “Raley’s,” through Wallis, “allowed” Wright to use the Benicia premises for UDCEA organizing purposes? Nevertheless, the parties themselves, particularly the General Counsel, have devoted extensive attention on brief to the details or supposed details of each such event. Therefore, largely in deference to the parties’ efforts, and for whatever value it may have to a reviewing body, I record below my particular findings as to what happened in each of the four Drug Centers where Raley’s is alleged to have given unlawful assistance to UDCEA by “discriminatorily” denying access to Local 588’s nonem- ployee organizers. B. September 19 Visitations to Benicia and Fairfield (Complaint Par. 20) Paragraph 20 contains two counts, as follows: (a) About September 19, 1993, Respondent Raley’s, at Respondent Raley’s Benicia, California facility, by Mike Wallis, refused to allow representatives of Local 588 to talk to employees and ordered the representatives of Local 588 to leave Respondent Raley’s Benicia facility while Respondent Raley’s concurrently allowed representatives of Respondent UWRU/UDCEA to use Respondent Raley’s facilities. (b) About September 19, 1993, Respondent Raley’s, at Respondent Raley’s Fairfield, California facility, by an unknown assistant manager, refused to allow representa- tives of Local 588 to talk to employees while Respondent Raley’s concurrently allowed representatives of Respon- dent UWRU/UDCEA to use Respondent Raley’s facilities. This is the undisputed background, largely as described by Local 588 Organizing Director Jacques Loveall: On the late afternoon of September 18, Loveall received two telephone calls from an employee at the Rancho Cordova store, who re- ported that Ed Wright had paid a visit to the Benicia store that day, and “had spent a considerable amount of time in the store talking to the employees.” As described previously (in part five), Local 588, although preadvised of Eidam’s intended Sep- tember 14 disclaimer announcement, had only kicked off the overt phase of its organizing campaign among the drug clerks the previous day, September 17, when it had mass-mailed cam- paign letters, authorization cards, and a return envelope to all drug clerks statewide. Moreover, as thoroughly reviewed re- cently, it was not until the following Monday, September 20, that Jacques Loveall issued general instructions to Local 588’s organizers and business representatives amounting to the kick- off of the on-the-ground phase of Local 588’s organizing effort among the drug clerks. However, when Loveall personally learned late on September 18 of Wright’s visit to Benicia, he decided on-the-spot that he “was going to go to the same store and see if they would provide us the same opportunity.” Thus, on the evening of September 18, Loveall called Local 588 agents Tulowitzky and Ciotti and instructed them join him the next day, Sunday, September 19, on an “organizing mission” (Ciotti). The next morning, Loveall, Tulowitzky, and Ciotti met up at a restaurant in the Sacramento area and then drove together to the Benicia store, located about an hour’s drive West, on the Sacramento River near the northeast fringe of San Francisco Bay. They arrived around noon or soon after. This is what hap- pened after they arrived, all within a period of 5 minutes or less:195 They split up after entering the Drug Center, with Tu- lowitzky proceeding down the leftmost shopping aisle towards the back room while Loveall and Ciotti walked up the right- most aisle in the same direction. Each of them wore jackets or shirts bearing the UFCW logo, affixed to which were their name tags. As Loveall and Ciotti advanced towards the back room, they spotted a male drug clerk working in the aisle, and stopped to speak to him and hand him an authorization card. After this, Loveall and Ciotti rejoined Tulowitsky at the back of the store, and the three agents walked together into the back- room. Once inside the receiving area, they encountered at least two employees working on or near a “baler.” One of them was described by Loveall as a “Hispanic male” (Albert Hernandez, I find, based on his own and Second Assistant Manager Susan Nakamura’s testimony concerning the incident), and the other described by Loveall as “black” male (Ron Kelly, I find, based on Nakamura’s account). The union agents began to talk to the employees about Local 588’s representative services, and passed out or tried to pass out authorization cards to them. Loveall recalls that the “black male” (i.e., Kelly, who, as found in the previous section, was a UDCEA supporter who had enlisted Baker to help secure petition signatures during his own absence the previous day) was particularly “combative and aggressive” in response to the union agents’ overtures, and angrily told the union agents to leave the employees alone. Nakamura had witnessed the union agents’ entry into the back room, and, moments later, she walked into the backroom her- self, arriving at about the point that the “yelling” began. She perceived that both Kelly and Hernandez were yelling at the union agents to leave them alone. When she joined the group, 195 We heard from five witnesses about the in-store events at Benicia on September 19—Local 588 Agents Loveall, Ciotti, and Tulowiitzky, plus Benicia Second Assistant Susan Nakamura, plus drug clerk Albert Hernandez. Each witness had somewhat fragmentary memories of these events, and their recollections (particularly those of the Local 588 agents) were not entirely consistent. I will not dwell on the marginal inconsistencies; rather, my findings below are based primarily on common features in the accounts of two or more of them, and, to a lesser extent, on certain details provided only by Nakamura. RALEY’S 513 one of the union agents handed her an authorization card, but snatched it back after she identified herself as a manager. At about this point, Second Assistant Wallis also entered the back- room. Tulowitzky was then studying the work schedule on the wall, and Wallis immediately walked over and pulled the schedule from the wall, then replaced it face down. Wallis also told the union agents that they were interfering with the drug clerks’ work and should leave. Loveall insisted on the union agents’ right to organize in the store, making some reference to the fact that Ed Wright had been given access the previous day. Wallis said he had no comment about the Wright visit and reit- erated that the union agents must leave. Loveall suggested that Wallis call “Jim Teel” to find out if he had a right to bar the union agents from access to the employees. Wallis declined, stating that he already knew what the “policy” was on that score. Loveall asked if the union agents could speak to employ- ees in the breakroom during their breaks, and Wallis said they could not and would have to leave. At about this point, two “head clerks” from the grocery side arrived in the backroom, having been paged by Nakamura. The head grocery clerks, perhaps joined by drug clerks Kelly and Hernandez, then formed a “human wall” to bar the union agents from entry into the breakroom. Soon thereafter, Wallis, backed by the grocery clerks, “herded” the union agents out of the receiving area and back onto the sales floor, following which the union agents exited the store. After leaving the Benicia store, the union trio went to a res- taurant and had lunch, then got back in the car and headed back towards Sacramento. En route, they decided to attempt one more visitation, to a Drug Center in Fairfield they had passed earlier, on their westbound run to Benicia. (On September 17, 2 days earlier, Raley’s had already received a UDCEA petition signed by 9 of the 12 drug clerks employed in the Fairfield Drug Center. (See GC Exh. 54, Bates 748.).) Once at Fairfield, the three agents spent 5 minutes or less in the Drug Center. My findings about what happened during this visitation are based on common features in the memories of the three Local 588 agents. (Not surprisingly, given the circumstances set forth below, Raley’s presented no counterwitnesses.) Upon arriving in the Drug Center, the three agents walked directly to the backroom.196 Once inside, they looked around but found no employees working in the receiving area. However, they re- mained there, “figuring that someone had to show up.” (Tu- lowitzky). Soon, a man wearing a green vest came into the backroom and asked what they were doing there. (The union agents assumed he was a manager, but they did not get his name, even though the record shows elsewhere that managers wore name tags on their vests. Nevertheless, the parties stipu- lated that only managers wore vests, and Hernandez testified that managers in the Drug Centers wore green vests. Accord- 196 They say they went to the backroom because they saw no em- ployees on the sales floor. I doubt that the sales floor was devoid of employees, or, even if so, that this was the reason the agents went di- rectly to the backroom. Rather, I assume that here, as in other visitation cases I have previously described, including the Benicia visitation earlier the same day, the agents were again pointedly seeking to stake out a claim of right of access to the backroom, and, particularly, a right to examine and record names from the work schedules. ingly, I will assume for all further purposes that the man in question held a management position in the Drug Center.) Loveall said they wanted to talk to the employees about being represented by Local 588. The presumed manager told them he would not allow this and asked them to leave. Loveall urged the manager to call headquarters and not make a decision on his own. The manager declined, citing standing instructions, and adding that there was only one employee in the store at the moment anyway. The union agents said, “Okay,” and exited the store. C. Visitations to Rohnert Park on Uncertain Dates (Complaint Par. 23(a)) Here I record findings about the receptions given by Drug Center Manager Robert Kiehlmeier to Local 588 Representa- tive Joe Daly during two of Daly’s visits to the Rohnert Park Drug Center in the September 14–23 organizing window pe- riod.197 With respect to Daly’s visitations, paragraph 23(a) of the complaint alleges: On two unknown occasions during about the week of September 19, 1993, Respondent Raley’s, by Rob Kiehl- meier, at Respondent Raley’s Rohnert Park, California store #377, at a time when Respondent UWRU/UDCEA did not represent a majority of Respondent Raley’s em- ployees, told representatives of Local 588 to leave the fa- cility while Respondent Raley’s concurrently allowed rep- resentatives of Respondent UWRU/UDCEA to use Re- spondent Raley’s facilities. This is the relevant background: Pursuant to the multiem- ployer Master (Grocery) Agreement to which Raley’s was a party, Local 588 represented grocery side workers at the Rohnert Park store. In September 1993, Local 588 Representa- tive Joe Daly, the General Counsel’s principal witness in sup- port of this count, was responsible for servicing the grocery employees at Rohnert Park, and he regularly visited the grocery side as part of his job routine. (By the time Daly testified on February 12, 1997, he had been retired for nearly 2 years.) Daly was familiar to several employees and managers on the Drug Center side, as well, including Drug Center Manager Kiehl- meier, the Respondent’s principal witness for these purposes. On the visitation dates in question, Daly was admittedly operat- ing under instructions from Local 588 to conduct organizing activities among the Drug Center employees, and he went into the Rohnert Park Drug Center for this purpose on at least two occasions after receiving these instructions and before the end of the September 23 workday. (Because Jacques Loveall did not call a meeting and issue such general instructions to the staff until September 20, I find, contrary to occasional sugges- 197 In sec. IV of this part, I have discussed and dismissed another count in the complaint alleging that Kiehlmeier independently violated Sec. 8(a)(1) and (2) by certain supposed statements in employee meet- ings. In that section, I have also narrated other features of the setting at Rohnert Park, features that bear more directly on the independent count, but only remotely on the “denial of access” count here under discussion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514 tions in Daly’s account, that Daly’s Drug-side visitations did not begin until on or after September 20.198) In fact, I find that Daly made three, and perhaps more visits to the Drug Center in the period September 20–23, but that he was confronted by Kiehlmeier during only two of these visits. Thus, Kiehlmeier credibly recalled seeing Daly at least twice on the Drug Center sales floor on dates prior to the date of the first confrontation described below. And pharmacy clerk Carol Evans, the former IDCA shop steward and a UDCEA enthusi- ast, also credibly recalled that Daly had talked to her at the pharmacy counter or in a sales floor aisle at least twice, and had given her an authorization card on one of these occasions, then had approached Evans a third time, at which point Evans brushed him off, saying she hadn’t had time to think about signing the card, at which point Daly apologized for bothering her. Moreover, drug clerk Daniel Villalva, a Local 588 sup- porter, recalled that, a day or two after he witnessed from a distance what I find was Kiehlmeier’s first run-in with Daly, Daly returned and talked with Villalva while Villava was work- ing on the sales floor, during which conversation Daly invited Villalva to attend a pizza party that Local 588 had scheduled to be held at a local restaurant sometime in the following week, i.e., the week beginning Monday, September 27. Daly and Kiehlmeier agree that the two men had two run-ins during two of Daly’s visits. However, Daly’s account clashes with Kiehlmeier’s as to the nature of and details associated with each such encounter. Daly testified summarily that in each case, he was talking to employees near the pharmacy counter, and, in each case, Kiehlmeier appeared out of the blue and “screamed” at him to “leave the store” or he would “call the police.” But I formed the distinct impression from watching Daly and listen- ing to his frequently confused accounts that Daly had more than ordinary problems with memory and recall,199 and that in these instances he was not testifying from any genuine memory at all. By contrast, Kiehlmeier’s far more detailed and differentiated accounts of the respective encounters struck me as more plausi- ble and convincing. Moreover, the General Counsel’s other witness, drug clerk Villalva, who clearly appeared to be de- scribing the first of the two run-ins between Daly and Kiehl- meier (as he observed the incident from a distance), fails to corroborate Daly with any clarity, and his version contains elements that are seemingly more consistent with Kiehlmeier’s version of that incident than with Daly’s. Accordingly, relying on Kiehlmeier as the most credible source of evidence as to the two encounters with Daly, I find as follows: The first run-in occurred after a drug clerk came to 198 This is also consistent with Kiehlmeier’s memory as to the timing of his two encounters with Daly described below, and it is likewise consistent with the memory of drug clerk Daniel Villalva, a Local 588 supporter called by the General Counsel to describe, inter alia, what he had been able to see and hear from a distance during one of Daly’s encounters with Kiehlmeier (the first of them, as I will find). 199 I noted these concerns on the record of the February 12, 1997, trial proceedings, during a colloquy with counsel outside Daly’s pres- ence, and after Daly had shown a marked difficulty in responding to many of the General Counsel’s preliminary questions. My concerns were not allayed by the balance of Daly’s testimony following the colloquy. Kiehlmeier’s office and said that a Local 588 agent was stand- ing at the pharmacy and talking to Evans.200 Kiehlmeier then descended to the sales floor and observed Daly still in the pharmacy area, talking and handing a card to an employee at the OTC counter, probably Evans. Kiehlmeier approached Daly and said that he didn’t want Daly “interrupting” his employees, and that he would “have to ask [Daly] to leave” if he persisted. Daly parried, “Are you kicking me out, Rob?” Kiehlmeier re- joined, “No, I just don’t want you to interrupt my employees.” Similar exchanges were repeated several times before Daly left the area, heading in the direction of the grocery side of the store. Kiehlmeier then went back to his office and called Abfal- ter at headquarters, reporting what had just happened and what he had done. Abfalter assured Kiehlmeier that he had handled the matter properly. The second encounter occurred a day or so later, when Kiehlmeier found Daly and another Local 588 agent, both wearing garb bearing a UFCW or Local 588 logo, standing in or near the “rear lobby” (apparently referring to a vestibule near the pharmacy leading to the double doors into the backroom). Daly introduced the other representative to Kiehlmeier (Kiehl- meier couldn’t recall the name from the witness stand). The other representative asked Kiehlmeier if the union agents could “set up” in the breakroom to meet with employees while on their breaks. Kiehlmeier said they couldn’t. The union agents argued to Kiehlmeier that they wouldn’t be interrupting work- ing employees. Kiehlmeier again said no. The exchanges con- tinued in like vein until, eventually, the union agents asked if they could use the breakroom for grocery employees, which was located on a rear upstairs level, unlike the Drug Center breakroom, which was on the ground floor within the Drug Center receiving area. Kiehlmeier agreed to check with Abfal- ter, and went back to his office for this purpose. He called Ab- falter and reported what was happening. Abfalter told Kiehl- meier to tell the union agents that, inasmuch as they had rights under the Grocery Agreement to meet with grocery clerks in the grocery breakroom they could talk to the grocery manager about using that room, but reaffirmed that they could not use the Drug Center breakroom. Kiehlmeier returned to Daly and the other union agent and so advised them, specifying that they should talk to “Lonnie,” a grocery manager, if they were inter- ested in using the grocery breakroom. The union agents again pressed to use the Drug Center breakroom, but Kiehlmeier repeated that this was a “non-public” area and again stressed that they had “contract” rights to use the “upstairs break room” and should use that venue if they wished. The union agents eventually indicated they would do so, and Kiehlmeier left them. He later saw them in the grocery breakroom, which was located near his own upstairs office. 200 Kiehlmeier recalled that drug clerk Doug Shaw was the unbidden source of this information on this occasion. Evans, perhaps recalling an earlier or later event, stated that after her third encounter with Daly, she went to Kiehlmeier to complain that Daly had pestered her previously to sign a Local 588 card, and was once again hanging around the phar- macy and making her uneasy by his presence and persistence. RALEY’S 515 D. September 23 Visitation at Fair Oaks (Complaint Par. 21(b)(3)) Paragraph 21 of the complaint alleges pertinently, at sub- paragraph (b),(3), that on September 23, Raley’s, through Larry Fowlks, the senior assistant Drug Center manager at Fair Oaks, “told representatives of Local 588 to leave the facility while Respondent Raley’s concurrently allowed representatives of Respondent UWRU/UDCEA to use Respondent Raley’s facili- ties.” 1. Central facts The Fair Oaks Drug Center is located on Fair Oaks Boule- vard on the fringe of Sacramento, about 10 miles from Raley’s downtown headquarters. Fair Oaks drug clerk Tim Lee and Local 588 Representative Rick Glazer were the General Coun- sel’s witnesses in support of this count. Senior Assistant Man- ager Fowlks was Raley’s witness. There is no real dispute among these witnesses about the central facts: Fowlks found Glazer in the Drug Center breakroom talking with Lee and perhaps other drug clerks, and told Glazer he had no right to be back there, following which Glazer eventually left the room. These are the details as I find them, relying primarily on har- monious features in Lee’s and Glazer’s testimony. Local 588 represented the grocery side employees at Fair Oaks, and Glazer was responsible for “servicing” those em- ployees. On September 23, Glazer paid an organizing visit to the Drug Center side sometime around midday, where, pursuant to prearrangement, he met up with Lee, who escorted Glazer into the drug clerk breakroom while Lee took his scheduled lunchbreak.201 They remained together in the breakroom for about 30–45 minutes. Another drug clerk named “Ernie” was present during some or all of this period (Glazer), and during the same period, several other drug clerks also entered, stayed for a while, and listened to Glazer’s organizing pitch. (As Lee generally recalled it on cross-examination, Glazer stressed, among other things, that Local 588’s grocery contract conferred greater benefits on grocery clerks than those received by the drug clerks, and that Local 588 had a large membership and correspondingly greater bargaining strength.) Eventually, after 30–40 minutes had elapsed, Senior Assis- tant Fowlks entered the breakroom and told Glazer that “union representatives [didn’t] have a right to be there.” Glazer and Fowlks then had a brief exchange about the existence of a “memo” bearing on Glazer’s right to be in the breakroom. I find, crediting Glazer’s and Lee’s common memories, and not- withstanding Fowlks’ variant memory, that it was Fowlks who cited a “memo” that said that Glazer had no right to be “back there.”202 Glazer asked to see the memo, and Fowlks left 201 In sec. IV, I noted that although Lee claimed during his direct ex- amination by the General Counsel that he had not previously “met” Glazer and had not had any prior “contact” with him, and that he had not “made up his mind” at the time of Glazer’s visit whether to support Local 588 or UDCEA, he is flatly contradicted by Glazer, who testified credibly it was Lee, already known to Glazer as a Local 588 supporter, who had called Glazer to propose the September 23 visit. 202 Fowlks recalled that it was Glazer who invoked the existence of a “memo” that affirmed his right to be in the breakroom. I find that Fowlks misrecalled the matter, and that Glazer’s and Lee’s common briefly, then returned and said that he couldn’t show the memo to Glazer, but that Glazer had no right to be there. At this point, Glazer agreed to leave and Fowlks himself left the room. A few minutes later, Glazer himself left, having admittedly completed his “business.” 2. Additional context reviewed I have already dismissed as not credibly proven certain counts in the complaint alleging that Fair Oaks Drug Center Manager Darrel Haring independently violated Section 8(a)(1) and/or (2) by other alleged statements and conduct in the days immediately preceding Glazer’s September 23 visit described above, and also in the days or even weeks following the Sep- tember 23 recognition of UDCEA. I have further found, how- ever, that Lee played an active role in Local 588’s organizing effort, both before and after UDCEA’s recognition, and, before the recognition, Manager Haring had unlawfully told Lee not to wear a Local 588 button on his work uniform. Also, after the recognition, as I have found, Haring unlawfully removed cer- tain Local 588 cards and other materials Lee had placed on a bulletin board in the breakroom, and then later removed Local 588 cards that Lee continued to leave on the breakroom table. However, other matters of surrounding context likewise de- serve review here: Wright credibly testified that he never con- ducted any personal organizing visits of his own to the Fair Oaks Drug Center, and there is no evidence that any of his em- ployee-allies made any such visits either. In fact, there is no evidence that there existed any pro-UDCEA sentiment among the Fair Oaks drug clerks. And even though drug clerk Lee asserts that a UDCEA petition appeared in the store, and that he posted it on a bulletin board in the breakroom (the fact of the posting was corroborated by Glazer),203 it is independently clear that Raley’s headquarters never received any UDCEA petitions signed by any Fair Oaks drug clerks. E. Analyses and Conclusions Concerning Denial-of- Access Counts The facts as found above show that managers at the four Drug Centers, acting consistent with instructions in Abfalter’s first memorandum of September 16, variously interfered with Local 588’s agents’ attempts to make in-store organizing con- tacts with drug clerks at those Drug Centers. Thus, at all four locations, managers interrupted visiting Local 588 representa- tives during their attempts to make organizing contacts with working drug clerks (in one case—Rohnert Park—on the sales floor; in another—Benicia—in the backroom receiving area). Further, at the Benicia Drug Center, a manager herded Local 588 agents out of the backroom. In addition, both at Benicia and Rohnert Park, a manager refused the visiting agents’ re- account makes more sense in the light of undisputed surrounding cir- cumstances, particularly that Abfalter had issued a memo on September 16 stating, inter alia, that Local 588’s agents had no right of “access” to the “break rooms or back room.” 203 As previously noted, there is conflicting testimony as to whether or not a UDCEA petition arrived in the store (and, if so, how), and as to whether Lee posted it on a bulletin board in the breakroom. However, I have credited credit Lee that he did, somehow, acquire a UDCEA peti- tion, and that he did post it on the bulletin board, without placing any reliance on his confused accounts as to the timing of these incidents. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516 quests to use a drug clerk breakroom as a venue for making an organizing pitch to drug clerks on breaks. Finally, at Fair Oaks, upon discovering that a Local 588 agent was talking to drug clerks in the breakroom, a manager told the agent he was not allowed to be there. The General Counsel and Local 588 com- monly contend that in each instance, the managers—and thereby “Raley’s”—gave unlawful assistance to UDCEA by denying organizing access to Local 588’s “representatives” while “concurrently” granting access to UDCEA’s “representa- tives.” Raley’s contends, on the other hand, that its managers in the four Drug Centers were, in each instance, merely exercising well-established property rights, reaffirmed in Lechmere, to prevent nonemployee union agents, like any other “outside” solicitors, from using its store premises as a venue for seeking money or memberships or other forms of support. Raley’s ar- gues further that the prosecuting parties’ contentions ignore the teachings of Babcock & Wilcox, Lechmere, and progeny, that Local 588’s representatives were subject to Babcock’s “general rule” that nonemployee organizers or solicitors have no rights derivable from Section 7 to enter or use the employer’s prem- ises for organizing purposes, and neither did Babcock’s “dis- crimination exception,” reaffirmed in Lechmere, come into play simply because a Raley’s agent had allowed employee Wright such access at Benicia. For reasons discussed below, I think Raley’s has the better side of the argument. Before reviewing applicable law and considering the prose- cuting parties’ arguments further, it’s important to note what the record fails to show: There is no evidence that Raley’s has ever permitted nonemployee solicitors for other outside groups to visit and use store premises to seek money or memberships or to promote a cause. Neither is there any evidence that any employee-supporter of Local 588 ever attempted to do what Wright did, i.e., seek organizing access to coemployees at other stores; much less is there evidence that any Raley’s managers sought to prevent any such store-visitation attempts by Local 588’s employee-supporters. Despite all this, a “discrimination” theory is at the heart of the prosecution’s claims that Raley’s owed, and violated, a duty to permit Local 588’s agents to have in-store access to drug clerks. This theory hinges on the fact, as found above, that Sec- ond Assistant Wallis “allowed” Wright to “use” the Benicia “facilities” to “talk to employees.” The discrimination theory was first succinctly stated by counsel for the General Counsel in arguments surrounding certain motions to dismiss, raised at the conclusion of the General Counsel’s case-in-chief, on March 13, 1997. There, the following colloquy occurred (em- phasis added): JUDGE NELSON: So, your point would be, it’s beside the point that there’s no specific evidence of the concur- rent allowance [of Wright to conduct in-store organizing] at Fairfield. It happened elsewhere [at Benicia]. And that’s your point, is that it? MS. KATZ: Absolutely. As a matter of law, if they al- low Ed Wright access in one facility . . . then they have to allow Local 588 access in other facilities. It doesn’t have to be one—it doesn’t have to be the same facility. JUDGE NELSON: All right. Without adopting your statement of what the law provides, . . . that allowing one inevitably requires the allowing of another[,] I see it as be- side the point that there’s no evidence of concurrent al- lowance at Fairfield, which seems to be the thrust of the argument in support of the motion to dismiss, as to para- graph 20(b). Counsel for the General Counsel advances essentially the same contentions on brief, although she characteristically mud- dies the waters by introducing a new—and independently un- persuasive—element to her trial-stated formulation.204 Counsel for Local 588 is not so mincing on brief, and embraces the General Counsel’s theory as expressed at trial, asserting flatly (Br. at 76–77), “Once access is granted to Wright to engage in organizational activities, then Raley’s cannot foreclose Local 588 from the same opportunity.” The trial colloquy quoted above indicated the essence of the prosecution’s legal theory as to the discriminatory-denial-of- access counts. My own remarks in the colloquy also hinted at my doubts about the validity of this theory. These doubts have only deepened upon my restudy of Lechmere and its antece- dents, and my review of the Board’s own post-Lechmere deci- sions. In substantial agreement with Raley’s arguments, I think 204 The General Counsel now emphasizes (beyond the complaint) that Raley’s did not merely “allow” Wright to use the Benicia “facility” to “talk to employees,” but “allowed” him to use the facilities to talk to employees while they were working. Thus (Br. at 325): “Once Raley’s allowed Wright to solicit for one of two competing unions while em- ployees were working, it constituted unlawful assistance when Raley’s discriminated against Local 588 by denying it the same right of access and the same right to solicit by telling the Local 588 representatives to leave (See also id. at 322: “All four instances of not allowing the Local 588 representatives to talk to employees in the break rooms and/or the drug centers and making them leave constitute disparate treatment because Raley’s had allowed Wright to meet with employees in a non- public area of the Benicia drug center while the employees were sup- posed to be working.”) This added, “while they were working” element is clearly intended to cover for those particular instances where a man- ager interrupted Local 588 agents when they were themselves interrupt- ing working employees, either on the sales floor (at Rohnert Park), or in the backroom receiving area (at Benicia). However, I have already found that the evidence will not permit a broad finding that “Raley’s” (i.e., Second Assistant Wallis at Benicia) “allowed” Wright to “meet with employees while they were working.” Rather, I have found first that “Raley’s” was legally obliged to “allow” Wright to use its in-store facilities to “talk to employees,” and, therefore, that Wallis did not implicate Raley’s in any violation by that mere “allowance.” Second, I have interpreted the evidence as not necessarily implying more than that Wallis, as a personal accommodation, allowed Hernandez to meet with Wright on Hernandez’ worktime, but was not shown to have been aware that other employees may have used their work time to meet with Wright. Accordingly, I regard the Benicia evidence as too isolated and skimpy to warrant the broad characteri-zations now advanced on brief by the General Counsel. Indeed, I regard the General Counsel’s intro- duction of this added element as something of a red herring, an attempt to blur the position she declared more forthrightly at the conclusion of the prosecution’s case-in-chief, i.e., that the discrimination violation in these denial-of-access instances traces simply from the fact that Wright was “allow[ed] access” at Benicia whereas Local 588’s representatives were not allowed similar access at Benicia or at the three other Drug Centers in question. RALEY’S 517 that the General Counsel’s position cannot be reconciled with the caselaw. As discussed below, the only genuine question raised by the facts is whether the “discrimination exception” is satisfied simply by proof that Raley’s granted in-store organiz- ing access to Wright at Benicia while denying similar access to Local 588’s nonemployee agents. As further discussed below, I judge that the prosecuting parties’ contentions cannot pass mus- ter under Lechmere and progeny, primarily because such con- tentions once again impermissibly ignore the “critical distinc- tion” emphasized in those cases as the basis for holding that employees enjoy Section 7 rights to use their workplace as a forum for union or other activities for their mutual aid and pro- tection, but that nonemployee union representatives seeking access for similar purposes enjoy no such statutory protection. It’s worth returning immediately to the Supreme Court’s re- affirmation in Lechmere that “[t]he Act [draws] a distinction ‘of substance,’ between the union activities of employees and non- employees,” 502 U.S. at 537. The Court observed that it was the Board’s “fail[ure] to make this critical distinction” which had caused the Court in Babcock & Wilcox to find that the Board “erred” in finding a statutory right of access for nonem- ployee union representatives. 502 U.S. at 546, citing 351 U.S. at 111–112. The Lechmere Court rejected the Board’s argument that the Board’s “balancing” test for “all access cases,” as promulgated in Jean Country, 291 NLRB 11 (1988), deserved court deference. Here, the court observed that the Jean Country test, insofar is it purported to strike a “balance” between the employer’s property rights and the employees’ interest in hav- ing nonemployee union representatives accessible to them at their workplace, was fatally flawed because that “balance” had already been struck by the “general rule” in Babcock & Wilcox that nonemployee union representatives enjoy no derivative right under Section 7 to have access to the employer’s property. Thus, the Court explained (502 U.S. at 538–539): To say that our cases require accommodation between em- ployees’ and employers’ rights is a true but incomplete state- ment, for the cases also go far in establishing the locus of that accommodation where nonemployee organizing is at issue. So long as nonemployee union organizers have reasonable access to employees outside an employer’s property, the req- uisite accommodation has taken place. It is only where such [“outside”] access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and employers’ rights as described in the Hudgens dictum. See Sears, 436 U.S. at 205, 98 S.Ct. at 1761; Central Hardware, 407 U.S. at 545, 92 S.Ct. at 2241. At least as applied to nonemployees, Jean Country impermis- sibly conflates these two stages of the inquiry—thereby sig- nificantly eroding Babcock’s general rule. The Board has directly acknowledged and applied this reason- ing in post-Lechmere decisions such as Leslie Homes, Inc., 316 NLRB 123, 126–127 (1995), and Galleria Joint Venture, 317 NLRB 1147, 1149 (1995). See also Nicks’, 326 NLRB 997 (1998). It is clear, however, that the Lechmere Court also affirmed other features of the Babcock holding when it recognized two exceptional circumstances under which the Board still could properly find a violation of employees’ rights when an em- ployer bars nonemployee union organizers from its premises— either that the union has “no other reasonable means of com- municating its organizational message to the employees,” or that “the employer’s access rules discriminate against union solicitation.” 502 U.S. at 535. And see Nicks’, supra, slip op. at 11. But as the Lechmere Court also observed in this regard, “That the burden imposed on the union is a heavy one is evi- denced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity.” Ib., citing Sears, 436 U.S. at 205. Here, of course, no contention is or could be made under the “inaccessibility” exception; rather, the “discrimination” pi- geonhole is clearly the one into which the facts of this case must be made to fit before Raley’s could be found to have acted unlawfully by denying in-store organizing access to Local 588’s nonemployee representatives. Indeed, the prosecuting parties implicitly acknowledge this when they both stress on brief that the discrimination exception “survived,“ or was “not disturbed” by Lechmere. (In fact, not only did Lechmere leave the discrimination exception “undisturbed,” but the exception was expressly acknowledged in Lechmere, as the Board has noted many times since. See, e.g., Nicks’, supra at 1007–1008; Price Chopper, 325 NLRB 186 (1997); Riesbeck Food Mar- kets, 315 NLRB 940, 941 (1994); Davis Supermarkets, 306 NLRB 426–427 (1992), enfd on different grounds 2 F.3d 1162, 1178 (D.C. Cir. 1993). Moreover, in each of these cases except Nicks’, the Board found that the discrimination exception had been satisfied by substantial evidence that the employer had allowed representatives of other outside groups to solicit on its property while denying the same opportunity to the charging party union’s solicitors (including, in Davis Supermarkets, by denying sidewalk access to six pickets for a UFCW Local while permitting nonemployee representatives of a rival union, a Steelworkers Local, to enter the store to organize employees. 306 NLRB at 426–427 fns. 3 and 5). However, none of those post-Lechmere “discrimination-exception” cases raised the “discrimination” question presented here by the prosecuting parties’ attempts to compare Raley’s toleration of in-store so- licitation activities by employees with its nontoleration of in- store solicitation activities conducted by nonemployees. Ac- cordingly, the above-cited Board authorities provide no particu- lar support for the prosecuting parties’ arguments for finding unlawful discrimination in this case. The General Counsel, emphasizing that the discrimination exception reaffirmed in Lechmere is still a fully viable one, nevertheless sees Lechmere’s teachings as otherwise “not ap- plicable” to an analysis of whether such discrimination may be found in this case. Thus, the General Counsel contends (Br. at 324) that “Lechmere . . . is not applicable to the instant matter because it did not involve disparate treatment in a rival union situation where there is an allegation of unlawful assistance.” It is true, of course, that Lechmere “did not involve” any number of fact patterns or issues present in this case. But to try to dis- miss Lechmere’s teachings on this basis is, in my opinion, sim- ply to hide from the rationale and the prior caselaw that in- formed the Lechmere decision—namely, the longstanding doc- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518 trine that nonemployees, unlike employees, enjoy no Section 7- linked protection when they seek organizing access within the confines of the employer’s property. Contrary to the General Counsel, I can see no reason why Lechmere’s reaffirmation of that “general rule” for nonemployee-access cases somehow loses its “applicability” when “rival union” organizing is “in- volved.” The question, never answered by the General Counsel, is this: Why should the general rule not have equally presump- tive application to nonemployee organizers in “rival union” situations? Put differently, so long as the employer even- handedly bars access to nonemployee organizers from either of the competing unions, it’s hard to see how the mere fact that “rival unions” were involved would render Lechmere’s teach- ings “not applicable.” Conversely, Lechmere’s teachings would clearly seem to have equal “applicability” even where, as the General Counsel puts it, the case “involve[s] disparate treat- ment in a rival union situation.” So long as the disparity in treatment involved the granting of access privileges to nonem- ployee solicitors for one union while denying the same to non- employee solicitors for the rival union, the situation would clearly be covered by the discrimination exception. See, e.g., Davis Supermarkets, supra, 306 NLRB at 426–427. Nor does the General Counsel make a defensible case for the notion that “Lechmere is not applicable” here by her additional argument that, [I]n the instant matter . . . Raley’s private property rights are not the paramount issue. As the Court stated in Serrick, in unlawful assistance cases, “[w]e are dealing . . . not with pri- vate rights . . . but with a clear legislative policy to free the collective bargaining process from all taint of an employer’s compulsion, domination, or influence.” This argument cannot withstand analysis. To start with, it falsely pretends to enjoy Supreme Court support where, in fact, there was none. Thus, it relies for its inspiration on an out-of- context quotation—and a significantly bowdlerized one, at that—from certain unexceptionable dicta in Machinist Lodge 35 (Serrick Corp.) v. NLRB, 311 U.S. 72, 80 (1940). In fact, these dicta were uttered in a context which had nothing whatso- ever to do with an analysis of either an employer’s “property rights,” or a nonemployee union organizer’s “access” rights, much less with an attempt to “balance” those rights or asserted rights. In fact, in the passage from Serrick cited and only selec- tively quoted by the General Counsel, the Court was addressing the question of the employer’s responsibility for the behavior of certain persons contended by the employer to be mere “lead” persons. And in that context, what the Court actually said, in full, was this: The employer, however, may be held to have assisted the formation of a union even though the acts of the so-called agents were not expressly authorized or might not be attribut- able to him on strict application of the rules of respondent su- perior. We are dealing here not with private rights (Amalga- mated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738), nor with technical concepts pertinent to an employer’s legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an em- ployer’s compulsion, domination, or influence. Equally important, if not more so, the General Counsel’s argu- ment, stripped of the false flag within which it is wrapped and seen in its full-frontal starkness, necessarily proposes that, in “rival-union” cases, Raley’s “property rights” (i.e., its rights to prevent in-store solicitations by nonemployees) must be “bal- anced” (i.e., “are not the paramount issue”) against a “legisla- tive policy” grounded in the Section 7 rights of employees, and that the balance in this case must be struck in favor of ceding access to Local 588’s nonemployee organizers. However, as Lechmere emphasized, that particular “balance” had long since been struck against solicitory trespass by nonemployee union organizers, except in cases of “inaccessibility” or “discrimina- tion,” and thus the Board was not free to use any such “balanc- ing test” when it came to nonemployee solicitory access. Therefore, contrary to the General Counsel, I judge that Lechmere’s teachings are fully “applicable” here. And I judge that those teachings cannot be squared with the General Coun- sel’s attempt to reimpose a new and different “balancing” test according to which, in this “rival-union” situation, Raley’s right to bar access to nonemployee solicitors must be subordinated to a supposed, but never clearly identified, “employee” interest (presumably, an interest in having nonemployee organizers available to them at their workplace whenever an employee organizer is allowed such access). Again, despite such distracting contentions, the real question presented here is whether it amounted to unlawful discrimina- tion within the meaning of the “discrimination exception” for Second Assistant Wallis to have knowing allowed employee Wright to solicit his fellow employees within the Benicia store while Wallis and managers at three other Drug Centers denied or interfered with later attempts by Local 588’s nonemployee organizers to gain similar solicitory access. While both the General Counsel and Local 588 argue mightily and at length that these facts establish unlawful discrimination, and even cite two particular authorities which they believe support such an argument (discussed and distinguished below), I judge that the attempted comparison must inevitably fail muster in the light of the teachings of Lechmere and the Board’s own subsequent decisions, particularly the Board’s decision in Nicks’, supra. In Nicks’, the Board clarified the meaning and scope of the discrimination exception, and the burden associated with prov- ing the existence of facts that would bring this exception into play, as follows (326 NLRB at 1009; emphasis added): We recognize, of course, that the Respondent denied the or- ganizers entry to the snack bar while permitting access to the general public—the same conduct underlying the Board’s finding of unlawful discrimination in Montgomery Ward.[205] 205 As previously noted in part three, the Nick’s Board “expressly overruled” the Montgomery Ward, holding, rather than merely distin- guishing it on its facts. Thus, the Board held that Montgomery Ward could not be “justified on a “discrimination” theory.” Supra at 1009 fn. 18. This was because, although “the [Montgomery Ward] Board sought to base its violation upon a finding of discrimination,” this finding had “no evidentiary foundation,” because, in turn, “there was no evidence RALEY’S 519 However, a finding of unlawful discrimination or disparate enforcement of a no-access rule requires a showing of treating similar conduct differently, and we find that under Lechmere there is a difference between permitting access to the general public for meals and permitting outside entities access to seek money or memberships. Thus, in analyzing whether a union has been discrimi- natorily denied access. . . we shall find a violation only if the General Counsel shows that the employer has refused nonemployee union organizers admittance while at the same time allowing other groups or organizations to en- gage in comparable conduct. In the light of certain additional contentions of the prosecut- ing parties, two other, related points deserve elaboration, one a relatively minor distraction in itself, but the other going to the heart of the issue. First, I must pause to address the General Counsel’s puzzling attempt (Br. at 324) to dismiss as merely a “red herring” Raley’s “anticipated argument” emphasizing the “outside organizer” status of Local 588’s representatives. Ex- plaining the “red herring” characterization, the General Counsel asserts (id.; emphasis added): “[T]he evidence establishes that the real reason Raley’s would not allow the Local 588 repre- sentatives to talk to the employees in the drug centers was not because [they] were non-employee ‘strangers’ to the property, but because they were organizing for Local 588, the wrong union.” The General Counsel does not here identify the “evi- dence” which supposedly “establishes” this “real reason.” But in a passage on the preceding page, counsel had referred to certain anecdotes summarily described in Fair Oaks drug clerk Lee’s testimony, indicating that, at Fair Oaks, Lee would some- times invite a nonemployee friend to visit him or wait for him in the breakroom, and that he sometimes saw other employees’ friends or relatives in the breakroom, and he never saw any manager try to curb such activity. But the General Counsel’s arguments here were effectively disposed of in the Board’s Nicks’ holding, supra, that “there is a difference between per- mitting access to the general public for meals and permitting outside entities access to seek money or memberships.” Signifi- cantly, the Board was there paraphrasing and adopting the Fourth Circuit’s language and reasoning in NLRB v. Southern Maryland Hospital Center, 916 F.2d 932 (1990). In that case, as noted by the Nicks’ Board in a preceding discussion (slip op. at 11), the circuit court had rejected claims of unlawful access- discrimination grounded merely in evidence that nonemployee union agents had been barred from access to a hospital cafeteria which, although “formally reserved for employees, patients, patient’s visitors, and medical staff,” had also been patronized by “employee family members.” And there, as the Nicks’ Board noted approvingly, the Fourth Circuit had “pointed out” the “difference between admitting employee relatives for meals and permitting outside entities to seek money or memberships.” 916 F.2d at 937. Thus, apart from the highly-debatable question whether Lee’s anecdotal testimony would genuinely “establish” that Raley’s “real reason” for barring Local 588’s organizers was “not because they were non-employee ‘strangers,’[et cet- that the employer knowingly permitted comparable solicitation [by nonemployee customers] at other tables. Id. era],” the more fundamental objection to this argument is that such anecdotes are irrelevant, because of the very “difference” emphasized by the Nicks’ Board: The “outside” visitors to the break rooms described in Lee’s anecdotes were not “solicitors.” Critically, however, Local 588’s nonemployee visitors or would-be visitors to the breakrooms and other nonpublic areas were seeking access for a solicitory purpose. Accordingly, no meaningful case for unlawful discrimination is made out by arguments spun from such anecdotes. Rather, I think that by trying to dismiss the “outsider” or “non-employee” status of Local 588’s representatives as a “red herring,” counsel for the General Counsel has simply dragged another red herring of her own across the analytical path. The still more important but related point is that the Board in Nicks’ emphasized that “a finding of unlawful discrimination or disparate enforcement of a no-access rule requires a showing of treating similar conduct differently,” a showing that can only be made proof that the same employer who refused solicitory ac- cess to a nonemployee union representative otherwise permitted similar solicitory access by other “outside entities.”206 In other words, apples must be compared to apples, not to oranges, much less to kumquats. The prosecuting parties obviously seek to treat as “similar conduct” (and as similarly-situated “groups”) for these pur- poses the in-store organizing activities of employees of Raley’s (hardly “outsiders”) and the in-store organizing activities of Local 588’s nonemployee representatives (clearly qualifying only as “outsiders”). The proffered comparison is apples-to- kumquats. It not only ignores, but completely obliterates Bab- cock’s “critical distinction,” as emphasized in Lechmere, be- tween employee access rights, which are presumptively pro- tected by Section 7, and those of nonemployees, who have no such presumptive statutory protection, and whose access rights can be found to exist as an adjunct to employee’s Section 7 rights only in the two exceptional situations previously dis- cussed—employee “inaccessibility,” or the employer’s dis- criminatory enforcement of the same “nonemployee-access” rules invoked against the union representatives by permitting other “outside entities” to solicit on the premises. Especially considered in that context, the would-be comparison must in- evitably fail precisely because it seeks to equate “groups” and “activities” that are fundamentally dissimilar in terms of their statutory standing. Indeed, the would-be equation implicitly 206 Moreover, the Board’s references in these passages to “outside entities” and to “other groups or organizations” as the proper groups for “comparison” cannot be construed as merely isolated or casual. See, e.g., Price Chopper, supra, again emphasizing “outsid[ers]” as the relevant group for comparison purposes: Thus: “Under longstanding Board precedent, an employer violates Section 8(a)(1) by denying union representatives access for Sec 7 activity while granting access to other outside groups, individuals, and activities. 325 NLRB 186 fn. 5. See also id. at fn. 12, discussing Riesbeck, supra, and stressing that “the employer in Riesbeck had allowed nonemployee union organizers to solicit and recruit employees in an organizational campaign on com- pany property.” In this case, however, as previously noted, there is no evidence that Raley’s had ever allowed nonemployee representatives of a union or of any other “outside” group to use its Drug Center premises for solicitation purposes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520 cheapens employees’ Section 7 rights to solicit on their em- ployer’s premises by declaring that there is “no difference” from a statutory standpoint between such employee conduct and similar conduct by nonemployee solicitors. Moreover, it is not merely an abstractly conceptual objection to note that the equation proposed by the prosecuting parties aggrandizes non- employee access interests at the expense of employee rights: The would-be equation has profound practical implications for conduct here on Earth. Thus, if the equation were embraced as a legally valid one, it would have the predictable, perhaps in- evitable effect of causing employers to restrict or prevent em- ployees from exercising their Section 7 rights in their work- place. (If an employer commits unlawful discrimination by “permitting” employees to exercise statutory rights to engage in workplace solicitations and distributions among their cowork- ers while denying a union’s nonemployee representatives the same opportunity, which path are employers likely to take? Allow nonemployees the same rights that it is statutorily obliged to cede to employees? Or prevent the employees’ exer- cise of such rights so as to preclude nonemployee access claims?) Thus, I fear that here, again, the General Counsel’s advocated position is not just legally insupportable, but worse, it serves invidiously to undermine the very employee rights under Section 7 which the General Counsel and the Board have striven to vindicate in countless other contexts. Finally, I observe that the equation here attempted by the prosecution between employee and nonemployee solicitory activities dodges the more obviously relevant “comparison” to be made, i.e., a comparison between how Raley’s treated em- ployee solicitation activities for either UDCEA or Local 588. And there is an obvious reason for dodging such a comparison: As previously indicated, there is no substantial evidence that employee-supporters of Local 588 were prohibited in the pre- recognition period from engaging in protected solicitations and distributions on Local 588’s behalf among their coworkers on store premises. At best, as found in section IV, supra, there is credible evidence that a single manager at a single Drug Center (Haring, at Fair Oaks) told a single drug clerk (Tim Lee) that Lee shouldn’t wear a Local 588 button on his work uniform, an admonition which Lee ignored. By contrast, there is much inci- dental evidence that not only Lee, but pro-Local 588 drug clerks at a number of other Drug Centers, engaged in other prerecognition solicitation and authorization card distribution activities within the Drug Centers without any let or hindrance by their local managers. As I have previously mentioned, however, the prosecuting parties believe that certain Board decisions have already made the same comparison that I have chosen to call an inappropri- ate, apples-to-kumquats comparison. Specifically, the prosecut- ing parties assert that the Board has already held, in Jomax Apparel Co., 146 NLRB 526 (1964), and Ernst Home Centers, Inc., 308 NLRB 848, 849–850 (1992), that unlawful discrimi- nation occurs if the employer allows employees to conduct on- premises organizing for the employer-favored union while de- nying nonemployee representatives of the employer-disfavored union the same on-premises organizing opportunities. More specifically still, the General Counsel (Br. at 325) cites Jomax and Ernst (and only those cases) in support of the proposition that, “[I]n an unlawful assistance situation involving competing unions, it does not matter if one of the unions is an employee union while the other union is an outside nonemployee union.” And Local 588 cites those same cases (and only those cases) as holding that, “[p]ermitting employees to use an employer’s premises to discuss the formation of an independent union while ejecting union organizers who requested equal time to address the employees is a violation of Section 8(a)(2).” (Lo. 588 Br. at 59–60; underscoring in original text.) However, for reasons set forth below, I regard both Jomax and Ernst as es- sentially uninstructive on the question whether an employer commits unlawful discrimination by allowing employees to engage in protected, on-premises solicitations while barring nonemployee solicitors from such on-premises activities. The key facts in Jomax are readily distinguishable from those presented here. Thus, in affirming that the employer vio- lated Section 8(a)(2) and (1) of the Act, the Board “rel[ied] on the findings of the trial examiner that Schneier, the Respon- dent’s owner and manager, engaged in the following conduct: (1) Shortly after the Charging Union began its cam- paign to organize the plant, Schneier made several speeches to the employees [i.e. on paid company time] di- rected against the Charging Union. Then, in a speech made at the plant on February 11, 1963, during working hours, he stated that the employees would “gain a point” if they had their own association, and immediately thereafter gave employee Wolf permission to make a speech, in which she urged the employees to form an independent union. (2) Schneier asked employee Bentzel what she thought about signing a petition for organization of a shop union, and subsequently, after Wolf addressed the em- ployees, told Bentzel that if the employees got together and organized, they could work out their problems better “among ourselves, instead of being like someone else.” (3) On April 19, 1963, after the Independent Union had been organized and its officers elected, Hoffman, with another representative of the Charging Union, visited the plant, told Schneier that he knew that the employees had been given opportunity to meet and discuss the Independ- ent inside the plant, and requested “equal time.” Schneier denied the request and ejected the men from the plant.[Fn. 2.] (4) Schneier prepared a document entitled “Informa- tion to Employees—Concerning Jomax Employees Assn.,” containing campaign material favorable to the In- dependent and presented it to the Independent’s president for distribution to the employees. The Board further concluded that, “[b]y this conduct, the Re- spondent effectively planted in the minds of the employees, and gave impetus to, the idea of forming the Independent Union, and thereafter unlawfully assisted it in violation of Section 8(a)(2) and (1) of the Act. 146 NLRB at 526–527; emphasis added. It is true, as stressed by the prosecuting parties, that the Board also noted (id. at 527 fn.2), “Contrary to the Trial Exam- iner, we find that the Respondent, by its disparate treatment of the Charging Union in denying it the same opportunity to meet with employees on company time and premises afforded the RALEY’S 521 Independent Union, unlawfully assisted the Independent.” However, it is clear that in Jomax, unlike herein, the employer did not merely “allow” employees to “use” plant premises to conduct an organizing meeting on behalf of the employer- favored “Independent Union.” Rather, the employer’s owner himself called such a meeting, paid employees for attending it, told the employees that they would “gain” by forming an inde- pendent union, and then turned the meeting over to an em- ployee favoring the formation of the independent union. Put in other words, Jomax did not involve an employer’s mere “al- lowance” of an on-premises employee meeting protected by Section 7, but instead involved the employer’s use of his own meeting to “plant [the idea of an independent union] in the minds of employees” and then, to “give impetus” to employee activity in favor of the independent union, “allowed” employ- ees to use the same meeting to make an organizing pitch for the independent union—activity which the employees would have had no obvious right to engage in during that meeting, absent the employer’s express encourage-ment and independently unlawful pump-priming. Moreover, insofar as the Board found in that context that the employer also gave unlawful assistance to the independent union by denying the rival union’s request for “equal access” for its nonemployee representatives, that feature of the decision was not obviously grounded in any ac- cess analysis under Babcock & Wilcox, nor could it have been informed by Lechmere’s later reemphasis on the “critical dis- tinction” between “employee” and “nonemployee” status when it comes to questions of access rights. Accordingly, that feature of the Jomax decision may be independently vulnerable to at- tack in the aftermath of Lechmere, and could well be overruled for essentially the same reasons the Board in Nicks’ “expressly overruled” its own Montgomery Ward precedent (326 NLRB 186, 187), concluding that Montgomery Ward had already been “effectively overruled” by Lechmere’s holding that, “except in rare cases of employee isolation or disparate treatment of or- ganizational activity, an employer may lawfully prohibit non- employee union representatives from trespassing on its property to engage in organizational activity.” Id. at 9. The prosecuting parties’ common reliance on Ernst, supra, is even more misplaced, even though the Ernst decision, unlike Jomax, postdated the Court’s decision in Lechmere (by about 9 months). First, to note another, relatively minor quibble with Local 588’s above-quoted assertion on brief, Ernst does not stand for the proposition for which Local 588 has cited it, i.e., for the proposition that “[p]ermitting employees to use an em- ployer’s premises to discuss the formation of an independent union while ejecting union organizers who requested equal time to address the employees is a violation of Section 8(a)(2).” Rather, as the General Counsel has correctly noted in likewise invoking Ernst, that case arose in a union-decertification con- text, not in the context of rival-union organizing. (Indeed, Ernst involved no allegations or findings under “Section 8(a)(2).”207 207 Although counsel for the General Counsel acknowledges that Ernst arose in a decertification context, she nevertheless contradicts that acknowledgment (and plainly misstates and garbles Ernst’s hold- ing) when she asserts (Br. at 325), that Ernst is “significant in that it However, in partial agreement with both the General Counsel and Local 588, I regard cases such as Ernst, involving alleged unlawful employer “assistance” in employees’ efforts to circu- late a petition aimed at ousting their established bargaining representative, as instructive by analogy to cases such as this one, involving alleged employer assistance to one of two rival unions seeking to represent a currently unrepresented unit of employees. Thus, as I noted at the beginning of this part, in decertification cases alleging unlawful employer assistance in the circulation of an employee petition to get rid of their union, just as in cases such as this one, alleging unlawful employer assistance in the circulation of an employee petition seeking recognition of a particular union, the “essential inquiry” in the end must be whether “he preparation, circulation, and signing of the petition constituted the free and uncoerced act of the employees concerned.” Eastern States Optical, supra, quoting KONO-TV, supra. (Indeed, as I also indicated at the beginning of this part, the test for finding unlawful (i.e., more than merely “ministerial”) employer assistance in an effort to oust a union already established as the employees’ 9(a) representative ought to be, if anything, more strict than in cases such as this one, where neither rival union has any preexisting claim to represen- tative status in the unit sought to be organized). The more fundamental objection to any invocation of Ernst for present purposes, however, is that Ernst did not hold that an employer is guilty of unlawful assistance when it allows em- ployees to campaign for decertification on store premises while refusing the same counteropportunity to the union’s nonem- ployee representatives. Rather, insofar as Ernst spoke at all to that issue, it held only that where the employer had already, through past practice, given the incumbent union’s nonem- ployee representatives the right to speak to working employees on the sales floor as part of the union’s representative function, the employer committed a unilateral-change violation of Sec- tion 8(a)(5) when it curtailed those rights during the decertifica- tion campaign period, and further committed a “closely- related” unlawful “assistance” violation by unlawfully curtail- ing those rights while continuing to allow employees favoring decertification to campaign among their fellow employees on the sales floor. Thus, it was critical to the Board’s analysis of the alleged disparate treatment issue that the Board had already found, in agreement with the administrative law judge, that the employer violated Section 8(a)(5) by “unilaterally altering the established practice of permitting the Union’s business repre- sentatives to have limited conversations with . . . employees on the sales floor[.]” 308 NLRB at 848–849. Moreover, in sustain- ing the judge’s finding that the employer also violated Section 8(a)(1) by permitting employee decertification activities on the sales floor while “vigorously prohibit[ing] the Union’s repre- sentatives from speaking with employees on the sales floor,” the Board noted that “the judge’s finding is closely related to the 8(a)(5) issue discussed above.” Id at 850; emphasis added. Indeed, the judge had noted the same relationship between the 8(a)(5) and (1) findings in his own decision. Thus (id. at 853; emphasis added; fns. omitted): prohibits discriminatory denial of access in situations where the favored union [sic] is an employee union.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522 The record contains no persuasive evidence that Respondent sponsored or endorsed Jovanovich’s visitations to the several stores by allowing her to do so while on the clock. Nor does it establish that Respondent granted her off-duty access to those on duty beyond that customarily permitted off-duty employ- ees when soliciting coworkers. The weight of evidence does indicate, on the other hand, that Jovanovich enjoyed greater visitational latitude when promoting decertification than did representatives of the Union under the limitations Respondent unlawfully imposed [in violation of Section 8(a)(5)] during the decertification effort. Here, however, Local 588 was not the drug clerks’ established representative at the time of the alleged “discriminatory” deni- als of access, and, clearly, there was no “past practice” under which Local 588 had previously enjoyed rights to visit with drug clerks on either the sales floor or in the backrooms or break rooms of the Drug Centers. Thus, here, unlike in Ernst, Raley’s actions in denying such access to the Local 588 agents cannot be charged as unlawful unilateral changes. Accordingly, given the Board’s unique basis in Ernst for reaching the “closely related” findings of unilateral change under Section 8(a)(5) and disparate “assistance” to the decertification peti- tioners under Section 8(a)(1), I cannot find in Ernst any real support for the prosecuting parties’ positions herein. For all of the foregoing reasons, I conclude that the “dis- criminatory”-denial-of-access counts must be dismissed. PART SEVEN CONCLUDING FINDINGS AND OBSERVATIONS ABOUT THE RECOGNITION As noted in part one, the General Counsel now concedes that the UDCEA petitions that were in Raley’s hands when it con- ferred recognition on the fledgling union contained authentic signatures from a majority of the drug clerks employed in the recognized unit, even as the General Counsel now seeks to define that unit. In these circumstances, as discussed in the introduction to part six, the General Counsel was required to establish, (a) that Raley’s committed unlawful acts in the pre- recognition period, and (b) any such proven misconduct, con- sidered in the totality of the circumstances, was “sufficiently pervasive” in its impact on employees to justify a finding that UDCEA’s conceded, “numerical” majority-showing was never- theless a “coerced” showing. Although the General Counsel proved that, prior to UDCEA’s recognition, a manager at Placerville committed a single, minimal-impact 8(a)(1) violation in conversation with a single employee, and that a manager at Fair Oaks did likewise, no drug clerks at either Placerville or Fair Oaks signed a UDCEA petition—at least none received by Raley’s. These violations could not have had any impact whatsoever on the decisions of the employees at the other stores who did sign UDCEA petitions. Indeed, the proven misconduct could not possibly be said to have been “sufficiently pervasive” to justify a finding that UDCEA’s majority-showing was in any sense “tainted.” Nor will it affect these assessments that Raley’s is also alleged to have committed postrecognition violations by “providing legal services” to UWRU through the alleged “agency” of attorney Telfeian—alleged violations which the General Counsel strenuously urges should be considered as part of the “totality of the circumstances,” indeed, as evidence sug- gesting even more widespread “tainting” activity by Raley’s preceding the recognition than was otherwise shown to have existed during that period. The short answer to the latter argu- ment is that I will find no merit to the claim that Telfeian was acting as Raley’s agent when he provided those services, all for reasons discussed more thoroughly in part eight, section I. There is little left to say about the merits of the prosecution’s attempts to discredit the recognition of UDCEA, except to re- spond to certain lingering contentions which may be under- stood as in some sense standing “independent” of the complaint allegations that I have already dismissed. One notion infusing the General Counsel’s arguments on brief is that Raley’s repeatedly gave “unfair advantage” to UDCEA. The expression appears 22 times in the General Counsel’s brief, but the General Counsel never defines the notion, much less defends it as a relevant concept anchored in caselaw. Moreover, it as apparent that in many of the instances in which the notion of “unfair advantage” is invoked, the Gen- eral Counsel is actually talking about “advantages” which Raley’s was not free to “give” or to “withhold.” Rather, they were the statutorily-conferred “advantages”—to organize in the workplace—which employees (but not Local 588’s staff organ- izers) enjoyed under established interpretations of Section 7. In addition, to the extent the General Counsel is referring to “ad- vantages” other than those conferred by Section 7 (e.g., access to store fax machines and telephones) these were the practical advantages that come with being an employee, as opposed to an “outside” union organizer. Another prevalent theme in the General Counsel’s arguments is the somewhat condescending supposition that Ed Wright and his employee-allies could not possibly have achieved a numeri- cal majority-showing among the 650-plus drug clerks statewide without the affirmative intervention and assistance of “Raley’s.” This theme (echoed in many portions of the General Counsel’s brief quoted in previous sections of this decision) was first sounded in the General Counsel’s opening statement on August 23, 1996, when counsel stated: [I]t’s almost incredulous [sic] that the employees could have done this without assistance from Raley’s, to have tried to reach 600 employees in a six-day period without the assis- tance of Raley’s.” Well, we have seen how Wright and his allies pulled off that feat, despite the General Counsel’s (and Local 588’s) evident incredulity that mere employees, acting on their own, could have been so well organized and motivated to have been able so quickly to achieve a majority-showing for UDCEA. And this leads to a related observation: The General Counsel evidently wants us to think that the UDCEA movement took shape only after Eidam disclaimed IDCA’s interest in representing the drug clerks. But one of the many “totality” factors which have influenced my ultimate judgments that acts of “Raley’s” had no real contaminating influence on UDCEA’s majority-showing is that the drug clerks who signed the UDCEA petitions cannot be charged with having done so in ignorance of Local 588’s inter- RALEY’S 523 est in representing them, much less in ignorance of the issues and stakes involved in choosing an “independent” union in preference to Local 588’s proffered representational services. Local 588’s representational interest in the drug clerks had been manifest for nearly a year before employees signed the UDCEA petitions, and Local 588’s representational track record over the course of that same period was widely known to the drug clerks. Indeed, as findings in part four more clearly reveal, the value of Local 588’s representational services had become increasingly common subjects for challenge and debate among IDCA’s membership in the months preceding Eidam’s dis- claimer. And Ed Wright and his rival UDCEA organization did not simply fall out of the trees in the immediate aftermath of the disclaimer. Rather, the UDCEA campaign put together by Wright and his allies reflected a logical evolution, in the light of the disclaimer and Local 588’s own, known representational designs on the drug clerks, of an antiaffilationist movement that had become palpable and significant long before the disclaimer was ever published. And clearly, Wright’s network of antiaf- filiationist allies in the various Drug Centers was already in- place when the disclaimer was published, waiting only to be activated by a call from Wright. The General Counsel has also repeatedly emphasized as a part of the relevant “totality” of circumstances that Raley’s “rushed to recognize” UDCEA. There can be no doubt on that score. I have found that Raley’s was clearly poised to grant recognition to UDCEA immediately upon obtaining a majority- showing, and that, in the event, this is exactly what Raley’s did. And Raley’s clearly did this because it wanted UDCEA to rep- resent the drug clerks and didn’t want Local 588 to represent them. But Raley’s did this based on a documented showing that a majority of the drug clerks wanted to be represented by UDCEA. And I have found that the majority-showing was un- tainted by any unlawful prior conduct on Raley’s part. And clearly, Raley’s “rush to recognize” a favored union in a rival- union organizing situation cannot itself be said to have “tainted” the majority-showing on which the recognition was based. Finally, it is clear that Local 588 had filed no rival peti- tion when recognition was conferred. Thus, in those circum- stances, Raley’s was clearly entitled under Bruckner to extend recognition to UDCEA. (Although I need not accept Raley’s argument on brief that Bruckner inevitably “encourages” em- ployers in a rival-union context to rush to recognize a favored union with an uncoerced majority-showing, it seems clear, at least, that such outcomes are necessarily envisioned and coun- tenanced by Bruckner.) Thus, in the context of this case, Raley’s rush to recognize UDCEA had no more evidentiary significance than if it had been proved that Abfalter had rubbed his hands with glee before affixing his signature to the recogni- tion letter, or that Louise Raley Teel had brought out a magnum of champagne to be shared all around as her husband affixed his own signature to the letter to the drug clerks announcing the recognition. In aid of the prosecution’s ultimate assertion—that UDCEA’s majority-showing was hopelessly contaminated by “widespread” and “pervasive” acts of coercion and other “taint- ing” activity by Raley’s and its local managers—the General Counsel has also devoted much attention to the particular cir- cumstances under which particular UDCEA petitions appeared in the Drug Centers, and the particular circumstances under which particular employees affixed their signatures to particular petition sheets. Thus, as we have seen, the General Counsel has been concerned not only with the clearly pertinent question of when, in relation to certain alleged acts of employer coercion, certain petitions were signed, but with such seemingly more tangential questions as how the petitions got into employees’ hands, the order in which certain clerks entered their signatures on certain petitions, the identities of other clerks with whom they were in contact at or before the time of signing, and whether the signers and/or other employees so involved were on “company time” when their own or other signatures were entered on the petitions. Indeed, the General Counsel has exam- ined even such collateral questions with the kind of meticu- lousness and zeal that we normally commend when we see it displayed in a dedicated epidemiologist, seeking to disentangle and isolate the sources and particular vectors of transmission of a deadly pathogen whose existence is already beyond dispute. But the General Counsel, at least since March 29, 1996, has been acting in a prosecutorial role, and was not, and did not purport to be, an impartial or objective analyst when it came to such matters.208 And here, such a pathogen capable of fatally tainting UDCEA’s majority-showing was apparently presumed by the prosecution to be somewhere “out there,” prior to the beginning of the intensive phase three investigation which led to the trial-eve ballooning of claims of such widespread and pervasive contamination. And, unlike in the epidemiological example, it is characteristic of investigations aimed at growing hair on a claim to which the investigator has already become committed, that any evidence thus uncovered will be given weight by the investigator only to the extent it can be construed to support the working presumption, and will be ignored, or artfully explained away, insofar as it may tend to undermine the working presumption. After carefully examining the evidence and the legal theories advanced by the prosecution to support the many allegations that have led the prosecution to claim the existence of “wide- spread and pervasive taint,” I have effectively found that there was little or no “there” out there. I have found that virtually all of the particular prosecution claims either lack credible factual support, or they lack legal support, or they suffer critically from a combination of the two deficiencies. Accordingly, these are my ultimate conclusions with respect to the recognition: Raley’s lawfully recognized UDCEA, which soon renamed 208 A similar point is suggested in a different way by a passage in a response letter written from the Office of the General Counsel to UWRU Attorney Telfeian on October 28, 1997 (ALJ Exh. 72(A), at- tachment 3), as follows (my emphasis): To the extent that you feel that the Regional Office did not always act impartially in the processing of these cases, I note that a number of ac- tions about which you complain occurred after the complaint had is- sued, at a time when the Regional Office, acting on behalf of the Gen- eral Counsel, was a party litigant in the proceeding. Litigation-related decisions made by the Regional Office are designed to achieve a posi- tive result in the litigation. In this regard I am satisfied that actions taken by the Regional Office, outside of the litigation context, do not reflect bias or partiality on its part. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524 itself UWRU, as the “exclusive representative” of the Califor- nia drug clerks within the contemplation of Section 9(a) of the Act. It necessarily follows that Raley’s was free thereafter to negotiate and enter into a collective-bargaining agreement with UDCEA/UWRU. PART EIGHT: ALLEGED POSTRECOGNITION VIOLATIONS I. ALLEGATION THAT RALEY’S VIOLATED SECTION 8(a)(2) WHEN HENRY TELFEIAN Furnished Legal Services to UWRU (complaint par. 27) A. Introduction; Some Central and Long-Known Facts Here, I address the several counts that now appear in para- graph 27 of the complaint as ultimately amended. As will be evident, these counts are now so needlessly wordy and compli- cated in their expression that they confound any reader’s ability to understand what they are intended to mean. However, at bottom, these counts allege something that is very simple to say, but perhaps less easy to prove. In substance, these counts allege that when attorney Henry Telfeian provided certain postrecognition legal services to UWRU, he was doing so as an “agent” of Raley’s, and, therefore, it was actually “Raley’s” who “provided” these services, and, therefore, “Raley’s” gave “assistance” to the new union of a kind that violated 8(a)(2)’s proscriptions. In pertinent part, Section 8(a)(2) makes it unlawful for an employer to “contribute financial or other support” to a “labor organization.”209 It appears to be commonly assumed by all parties that it would be unlawful under that clause for Raley’s to be the “provider” of any legal services to the new union, and that it would not matter to the analysis whether the providing was done by a Raley’s officer or employee, or through in-house counsel, or through the agency of an outside attorney, or through any other person acting at the Company’s direction or under the Company’s control. Indeed, as Raley’s and UWRU— and Ed Wright and Henry Telfeian, individually (among other persons)—each reasonably construed the factual and legal components of the allegations of paragraph 27, the Company’s 8(a)(2) liability before the Board if found to have been the “real” provider of Telfeian’s services would pale in comparison to the possibility of criminal liability for one or more parties or persons under other Federal or State laws—most prominently, under the “anti-racketeering” provisions of Section 302(a) 209 Sec. 8(a)(2) also makes it unlawful for an employer to “dominate or interfere with the formation or administration of any labor organiza- tion[.]” However, as noted in part two, the Office of the General Coun- sel dismissed Local 588’s administrative appeal from the Regional Director’s refusal to issue complaint on a “domination” theory (al- though you wouldn’t always know it from reading some of counsel for the General Counsel’s arguments on brief with respect to the paragraph 27 counts). The General Counsel possesses effectively unreviewable power to “shape” the case and control the theory of prosecution. Ac- cordingly, I treat the General Counsel’s dismissal of Local 588’s ad- ministrative appeal as effectively foreclosing any claims under the above-quoted “domination” clause of Sec. 8(a)(2). and/or (b) of the Labor Management Relations Act, 1947, as amended.210 I will not find it necessary to reach the question whether Raley’s would have violated Section 8(a)(2)—much less whether Raley’s or anyone else would have violated other laws—if Raley’s had been the real “provider” of Telfeian’s services to the new union. For I will judge in the end that the record lacks any legitimate basis for finding that Telfeian was acting as Raley’s “agent,” rather than as his own “free agent,” when he provided those services. Moreover, even though para- graph 27 expressly alleges an “agency” theory, my judgment does not turn on “technical concepts of agency,” which con- cepts, as noted by the Court in Machinist Lodge 35 (Serrick Corp.) v. NLRB, supra, do not necessarily control these kinds of analyses. Rather, I will state my ultimate judgment in the broader terms suggested by Serrick: The record lacks any le- gitimate basis for concluding that Raley’s may “fairly be said to be responsible” for Telfeian’s services to the new union. Id. 311 U.S. at 80. Long before paragraph 27 was amended into the complaint (on August 8, 1996), there had existed an undisputed body of facts that were well known to both Local 588 and the General Counsel. Summarizing that evidence here will help to further introduce the questions raised by paragraph 27, and to put in context my additional discussions below and my supplemental findings in later subsections. Many of the key facts underlying paragraph 27’s allegations were reflected in a series of lawyer-to-lawyer letters, exchanged in the period September 24–October 18, 1993, between Telfeian (writing for Raley’s, usually in a reply posture) and attorneys Steven Stemerman and/or Andrew J. Kahn (writing under the letterhead of the Davis, Cowell & Bowe firm for Lo- cal 588 and/or for Jacques Loveall as the purported owner of the “UDCEA” name). This correspondence is reviewed in greater detail in my supplemental findings, infra. Essentially, however, the correspondence dealt with claims by Stemer- man/Kahn (vague to begin with, but somewhat more particular- ized as time wore on) that Ed Wright had no authority to speak on “UDCEA’s” behalf, that Raley’s had no right to negotiate with Wright as a representative of “UDCEA,” that Jacques Loveall owned the “UDCEA” name, and, indeed, that Stemer- man/Kahn themselves were the attorneys for “UDCEA.” Telfeian’s ultimate reply letter in this series was dated October 18, and this letter, like his earlier replies, was written under the letterhead of the Keck, Mahin & Cate law firm, which at all material times represented Raley’s as an ongoing client. This 210 In pertinent part, Sec. 302(a) (29 U.S.C. § 186(a)) makes it “unlawful for any employer . . . or any person who acts as a labor rela- tions expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver . . . any money or other thing of value” to “any representative” of the employer’s employees, or to “any labor organization, or any officer or employee thereof, which . . . represents, seeks to represent, or would admit to membership, any of the . . . employees of such employer[.]” And in pertinent part Sec. 302(b) states: “It shall be unlawful for any person to request, demand, receive, or accept, or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a).” RALEY’S 525 was the last letter Telfeian was known to have written as an attorney-representative of Raley’s. (I will find, further, that his drafting of that letter occurred in the late afternoon on the pre- vious Friday, October 15, and that this drafting was, in fact, the last act of representative service he performed for Raley’s, subject only to further consideration of the General Counsel’s contention that the services he later performed for UWRU were really being performed in his alleged capacity as an “agent” of Raley’s.) Other long-known facts were reflected in certain other corre- spondence exchanged in the period October 12-28, between Davis firm attorneys Stemerman/Kahn and Ed Wright. These I will describe in greater detail below: On October 12, the Davis lawyers wrote to Wright for the first time (GC Exh. 59), making claims similar to those made earlier to Raley’s about Jacques Loveall’s ownership of the “UDCEA” name, and further threatening to sue Wright and his “allies” if they continued to purport to act in that name or oth- erwise to “infringe” on Jacques Loveall’s exclusive rights to the name. That letter also solemnly averred that Wright’s “use of the name” had “resulted in confusion among Raley’s employ- ees and dilution of our client’s [Jacques Loveall’s] goodwill among Raley’s employees[.]”211 Then, 2 days later, on October 14, Stemerman/Kahn again wrote to Wright (GC Exh. 61), this time asserting that “[t]his office represents IDCA and its officers Gil Eidam, et al.“ And in this letter, the Davis attorneys made new claims and new threats of lawsuit, averring that Wright and his “supporters” had libeled and otherwise defamed Gil Eidam and other former IDCA officers when Wright made certain statements in an un- dated newsletter to drug clerks statewide (GC Exh. 62), appar- ently mailed soon after UDCEA’s recognition. Thereafter, as the Stemerman/Kahn-Wright correspondence reveals, Wright advised the Davis attorneys by letter of October 18 (GC Exh. 64) that his group had ceased using the “UDCEA” name and mark. (By another letter to Abfalter on the same date [GC Exh. 63], Wright had advised the company that the new union would now be called UWRU, and had requested that “any and all records” be amended “to reflect this change.”) On October 27, Stemerman/Kahn sent another letter to Wright (GC Exh. 79), this time by “Express Mail.” In this let- ter, the Davis attorneys (writing for “Jacques Loveall/ UDCEA”) took issue with Wright’s October 18 assurance that he had ceased using the “UDCEA” name. Beyond that, they issued new ultimata to him, and made radically expanded de- mands of him as a condition of avoiding lawsuit—most nota- bly, that he must surrender his signed UDCEA petitions to Jacques Loveall and relinquish his right to negotiate with Raley’s unless or until he obtained a new majority-showing 211 Relatedly, see GC Exh. 78, a letter from Stemerman/Kahn to Jor- dan/Telfeian, wherein Stemerman/Kahn purport to “recount the facts recited to us by Jacques Loveall.” This recounting included the follow- ing assertion (my emphasis): “For many weeks, starting before Raley’s recognized Mr. Wright, Mr. Loveall and his supporters have been gath- ering cards from Raley’s employees under the UDCEA banner[.]” However, Jacques Loveall himself admitted, in trial on April 17, 1997, that this “was not a correct statement.” under the name of an organization other than “UDCEA.” This is what they said: The only things which will begin to undo the damages you have caused through your unlawful behavior are as follows: (1) Your genuine cessation of using the UDCEA name, including an end to the distribution of written mate- rials bearing that name; (2) your withdrawal from negotia- tions with Raley’s (including your refraining from entering into any labor agreement with Raley’s), until you have gathered new signatures authorizing you to represent em- ployees under a name not containing any of the words in “United Drug Center Employees Association” or “Inde- pendent Drug Clerks Association” and not using the ini- tials UDCEA or IDCA. Your use of petitions tainted by the violations of our clients’ exclusive right to the organi- zation and the name must be addressed before this office will refrain from filing an action against you; and (3) Your recovering all documents bearing the UDCEA name (in- cluding handbills, petitions, applications, etc and copies thereof) and turning them over to the authorized represen- tative of the UDCEA, Mr. Loveall. If we do not receive written confirmation by noon Monday of your agreement to withdrawing from Raley’s negotiations until you truly have a majority untainted by violations of the legal rights of the UDCEA and its author- ized leadership, then please advise us who will be repre- senting you in court. On October 28, Wright wrote back to Kahn (GC Exh. 81), stat- ing, “I have referred your letter of 27 October 1993 to our Un- ion’s attorney. You will be hearing from him shortly.” Similarly well known from the start was another fact of pro- voking significance to paragraph 27—Telfeian’s gauntlet- throwing (or gauntlet-returning) fax/letter to Stemerman/Kahn of November 10 (GC Exh. 81). This letter was written on Telfeian’s private law office stationery, bearing his home/office address in Berkeley, California. Telfeian declared at the begin- ning of the letter that “[t]his office represents . . . UWRU,” and that he was “respon[ding]” to Stemerman/Kahn’s “recent corre- spondence” to Wright. Telfeian then recorded his opinion that “your claims are frivolous and have been made with the trans- parent purpose of attempting to intimidate the founders of the UWRU.” He asserted further that the allegedly “libelous” statements made by Wright in his newsletter were “privileged under federal law,” and that any such defamation claims were in any case “preempted by the National Labor Relations Act.” He also stated that UWRU had a “common law right to the use of the [UDCEA] name well before your purported client at- tempted to obtain the rights to use this name.” He also stated that if Stemerman/Kahn were to “file any sort of lawsuit against UWRU or its founders or officers,” they could be “assure[d] that the UWRU will file a cross-complaint against you, your law firm, Gil Eidam, Jacques Loveall, Jack Loveall, and UFCW Local 588[,]” and, that, upon dismissal of any Stemer- man/Kahn-filed lawsuit, “the UWRU will file a further action against you and the plaintiff(s) for malicious prosecution.” Telfeian further suggested that the NLRB was the “appropriate arena” for all claims made by Stemerman/Kahn to date, and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 526 should be their forum of resort, “rather than attempt[ing] to improperly use the threat of a lawsuit to accomplish your cli- ent’s goals.” Telfeian closed with the “request” that if Stemer- man/Kahn wished to send “any more threatening letters to UWRU or its founders,” they should direct them “to this of- fice,” reiterating that “this office represents the UWRU and its founders with respect to all claims made against it by the UFCW Local 588, Jacques Loveall, Gil Ediam [sic], and the IDCA.” Still other long-known facts informing the allegations of paragraph 27 had been furnished to the General Counsel by Wright himself, in a sworn statement he gave to Regional in- vestigators in January 1994. As is revealed by the General Counsel’s adverse examination of Wright during the prosecu- tion’s case-in-chief concerning this sworn statement, Wright had described in the statement the timing (mid-late October) and other circumstances leading to Telfeian’s retainer as attor- ney for the new union, under a “reduced” fee arrangement. And in this sworn statement Wright had also acknowledged that it was Telfeian who had initiated the first contact between them, during which he offered his services to the new union. The known facts as previously summarized were supple- mented during the trial in certain interstitial respects. The sup- plemental evidence came primarily as a result of various dis- covery-at-trial devices, mainly subpoenas duces tecum issued by the General Counsel and/or Local 588 to Raley’s, to the Keck, Mahin & Cate firm, and to others. These discovery ef- forts yielded certain records described below, plus related dis- closures and stipulations by counsel as to certain facts. To a relatively small extent, the known facts were also supplemented by the testimony of Wright and Telfeian, under adverse exami- nation as the General Counsel’s witnesses during the General Counsel’s case-in-chief. For example, Telfeian and Wright congruently testified, consistent with the pertinent correspon- dence record, the pertinent telephone, and billing records, and certain stipulations of the parties about those records, that the first-ever contact of any kind between Telfeian and Wright did not occur until mid-October, and that Telfeian did not begin to perform any legal services for UWRU until dates in November. (There is no dispute that Telfeian did not itemize and bill UWRU for any services performed before November. There is a largely semantical dispute as to whether the preliminary dis- cussion about the “UDCEA”-name issue that apparently oc- curred between Telfeian and Wright in their first, mid-October telephone conversation should be counted as a legal “service.”). Moreover, Telfeian had by then testified, consistent with perti- nent billing records, that he performed his last act of legal ser- vice to Raley’s on October 15 (drafting and signing a letter to Stemerman/Kahn that was mailed on October 18). It is, at best, debatable whether the evidence developed as a result of the belated, laborious, and time-eating efforts of the prosecuting parties to use the trial forum as a discovery vehicle materially improved the General Counsel’s case with respect to the allegations of paragraph 27. (In my view, the trial- developed evidence, insofar as it bore on the question whether Telfeian was acting as an “agent” of Raley’s when he assisted the new union, tended on the whole to be far more exculpatory of Raley’s than inculpatory.) Nevertheless, recognizing that the question is debatable, I will set forth in supplemental findings below all facts that now appear in the record which arguably bear on the merits of paragraph 27. B. The General Counsel’s Theory and Specific Contentions While the significant facts had been long known when para- graph 27 was first amended into the complaint, the General Counsel’s claim that “Raley’s” was the “provider” of Telfeian’s services to the new union has nevertheless been a claim in search of a coherent, integrating theory of prosecution—that is, a theory that might encompass the known facts and make of them a case that Telfeian was acting as Raley’s “agent.” The search for a theory of prosecution is to a large extent reflected in the various arguments and colloquy of record described fur- ther below. The search for a theory is also largely implicit in the ever-evolving procedural history of paragraph 27, particu- larly in the General Counsel’s responses to motions for particu- lars, and in the General Counsel’s ongoing amendments to that paragraph, all of which resulted ultimately in an interrelated array of allegations of grotesque prolixity and syntactical com- plexity. The original count, when first introduced into the case shortly before the trial began by one of the amendments incor- porated into the vastly-expanded “Second Amended Consoli- dated Complaint,” said this (emphasis added): 27. From an unknown date in September or October 1993 and continuing to date, Respondent Raley’s, by its attorney agent, offered legal assistance to Respondent UWRU/ UDCEA. In an opening statement on August 23, 1996, counsel for the General Counsel explained the “basis” for this allegation as follows: “[F]rom the time of IDCA’s disclaimer until the rec- ognition of UWRU, Mr. Telfeian was representing Raley’s. And then suddenly Mr. Telfeian stops representing Raley’s and decides that he’s going to represent UWRU. And, in fact, the evidence will show that Mr. Telfeian made the initial contact to UWRU. Based on that, we have alleged that Respondent [Raley’s] provided legal assistance to UWRU.” By October 1, 1996, paragraph 27, as set forth in the “Third Amended Consolidated Complaint,” now was worded this way (emphasis added): 27.(a) From about an unknown date in September or October 1993 until about December 31, 1993, Respondent Raley’s, by its attorney agent Henry Telfeian, provided le- gal assistance to Respondent UWRU/UDCEA as follows: (1) at an unknown time in about mid-October 1993, the exact date being unknown to the General Counsel but particularly within the knowledge of Respondent Raley’s and/or Respondent UWRU, at a time when Respondent Raley’s attorney agent Henry Telfeian was representing, and being paid to represent, Respondent Raley’s, he began representing Respondent UWRU, and for an unknown pe- riod of time extending at least until an unknown date in about November 1993, the exact date being unknown to the General Counsel but particularly within the knowledge of Respondent Raley’s and/or Respondent UWRU, he rep- resented both Respondent Raley’s and Respondent UWRU RALEY’S 527 at a time when he was not being paid by Respondent UWRU; and (2) from an unknown time in about November 1993 through December 31, 1993, more precise dates being un- known to the General Counsel but particularly within the knowledge of Respondent Raley’s and/or Respondent UWRU, Respondent Raley’s former attorney agent Henry Telfeian represented Respondent UWRU at a time when he was not being paid by Respondent UWRU. Moreover, in the ultimate incarnation, the “Fourth Amended Consolidated Complaint,” the same “particularized” allegations set forth in 27(a)(1) and (2), above, had become supplemented by yet an additional subparagraph, itself the product of the General Counsel’s motion, dated February 10, 1997, to further amend paragraph 27 (GC Exh. 134), which I granted. This new paragraph states as follows: (c) Respondent Raley’s, by James Teel, in October or November 1993, unlawfully assisted Respondent UWRU/ UDCEA by having knowledge of, and consenting to, its current or former attorney agent Henry Telfeian represent- ting Respondent UWRU/UDCEA.212 The contentions of paragraph 27 are now so confusingly ar- ranged, and so thickly marbled with uselessly repetitive phrases and other gratuitous and merely argumentative verbal surplu- sage, that they defy not only the Board’s Rules and Regulations requiring “a clear and concise description of the acts which are claimed to constitute unfair labor practices” (Id., sec. 102.15), but they defy any ready comprehension whatsoever. However, a relatively simple editing job on my part will suffice to isolate what it is the General Counsel is really alleging in paragraph 27 as the “acts . . . claimed to constitute the unfair labor practices,” as follows: . . . Raley’s . . . [unlawfully] provided legal assistance to . . . UWRU [when], (1) [starting] . . . in about mid-October 1993 . . . [and continuing into] November 1993] . . . Henry Telfeian . . . represented both . . . Raley’s and . . . UWRU . . . [and was being paid by Raley’s but] . . . was not being paid by . . . UWRU; and, (2) [thereafter,] . . . through December 31, 1993, . . . Telfeian [although no longer representing Raley’s, contin- 212 The belatedly introduced count in subparagraph (c) was itself in- spired by remarks from the bench during a trial colloquy months ear- lier, on October 16, 1996, as follows: MR. YANG: That document is irrelevant. Whether or not there was a waiver of a conflict between Raley’s and Mr. Telfeian is irrelevant. That only addresses the ethical issue, if there is one. JUDGE NELSON: I would-- MR. YANG: It does not address whether or not there has been unlawful assistance. JUDGE NELSON: I suspect the General Counsel would argue that granting a waiver in those circumstances might be construed as a little nudge or a form of unlawful assistance. MR. JELLISON: The charging party would certainly take that position. ued to represent] . . . UWRU [without] . . . being paid by . . . UWRU; and, [3] . . . in October or November 1993 . . . James Teel . . . consent[ed] to . . . Telfeian representing . . . UWRU[.] The reader will note that in this edited restatement I have elimi- nated paragraph 27’s preamble reference to “about an unknown date in September” as marking the beginning of the period during which Raley’s is alleged to have unlawfully provided legal services to UWRU. This is because the General Counsel’s particularizations described no such conduct occurring prior to an uncertain date in “October” 1993. Moreover, the General Counsel conceded in colloquy preceding and at the time of these particularizations that the prosecution never had any evi- dence of any furnishing of services by Telfeian to UDCEA or UWRU prior to “mid-October” (nor, for that matter, any evi- dence that Telfeian had “represented” Raley’s at any time after an uncertain date in “November”213). Accordingly, while much about the particularized and amended counts and the theory underlying them remained uncertain, it slowly became clear, at least, that the alleged unlawful conduct of “Raley’s” (i.e., Telfeian) occurred within a period beginning on an uncertain date in “October,” after the recognition, and was not something that had begun prior to the recognition, nor something that had “continu[ed] to date,” as originally alleged in the second amended consolidated complaint. C. Related Procedural Matters Affecting the Issues and the Scope of the Record The evolution of paragraph 27 was attended at various stages of the trial, and in a variety of procedural contexts, by extensive argument, by various explanatory statements by the General Counsel (rarely having a clarifying effect, and not always con- sistent), and by endlessly circular colloquy between the bench and counsel for the General Counsel concerning the nature of the General Counsel’s theory of prosecution and the particular facts or circumstances on which the theory was based. (Princi- pal examples occurred in trial proceedings on August 23, Sep- tember 24, and October 16, 1996, and on February 10, and August 7, 1997.) Thus, in proceedings prior to and including October 16, 1996, the nature of the theory and the particulars associated with it were rather thoroughly explored, if not al- ways under adequate illumination, in colloquy and arguments arising in three related contexts: (1) early motions by the Gen- eral Counsel to amend paragraph 27 (which I granted); (2) mo- tions by the respondents, in the nature of demurrers, to dismiss paragraph 27 (which I denied); and (3) petitions by both re- spondents, citing attorney-client privilege, to revoke certain portions of the General Counsel’s (and/or Local 588’s) various trial subpoenas and “supplemental” subpoenas for certain re- cords and documents bearing on Telfeian’s performance of services for Raley’s and UWRU (which petitions to revoke I granted in part and denied in part). 213 The pleading of a date in “November” as defining the end of the period during which Telfeian is alleged to have “represented Raley’s” proved itself to be based on an attenuated fiction, one which I address in my concluding discussions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 528 In the subpoena-wars context, it slowly became clear through extensive colloquy of record that the ultimate disputes orbited around the discoverability of attorney billing records and corre- spondence relating to Telfeian’s furnishing of legal services to Raley’s and/or UWRU in the period September 1 through No- vember 30. With the timeframe thus narrowed, I first directed that the parties seeking subpoena revocation prepare and submit “privilege logs” cataloguing those records and documents which were subpoena-responsive but which the revocation- petitioner sought to withhold as shielded by attorney-client privilege. These logs were eventually furnished to me. Then, with questions further narrowed, I directed that certain billing records of the Keck, Mahin & Cate firm identified on the privi- lege logs, plus a November 10 letter from Telfeian to Company President Teel, be submitted to me in unexpurgated form for the purpose of attempting to determine by in camera inspection whether, or to what extent, such records might be shielded by the privilege. Counsel for the revocation-petitioners both ob- jected to this direction as an inappropriate exercise by the trier- of-fact, but after making many disclaimers and reservations of rights, each eventually complied by furnishing me with the unredacted attorney billing records and the Telfeian-Teel letter in question. After my in camera inspections, I granted the peti- tions to revoke in certain respects but denied them in other respects. I effectively ruled that certain narrative statements in the billing records describing the subject or nature of Telfeian’s telephone “conferences” with Abfalter and other Raley’s execu- tives were properly shielded by the privilege, but not the dates on which these conferences occurred, nor certain other data in the records indicating the nature or purpose for Telfeian’s own actions. I also ruled that Telfeian’s November 10 letter to Teel was not shielded at all by the privilege. (The records thus fur- nished for in camera inspection, with my handwritten bracket- ing markings indicating shielded and non-shielded entries, have remained as “sealed” exhibits in the record.214) Raley’s took 214 The unredacted submissions for in camera inspection were sepa- rately marked and received into evidence as sealed Administrative Law Judge Exhibits, as follows: ALJ 3 (F) Sealed Exhibit of underlying records responsive to GC subpoena d.t. B-227637 (copies of Keck, Mahin & Cate bill- ing invoices to Raley’, dated, respectively, October 12, 1993 and November 11, 1993), furnished by Raley’s on September 24, 1996, for in camera inspection and ALJ ruling, also showing ALJ bracketing of portions of text judged by ALJ to be properly shieldable under attorney-client privilege. ALJ 3 (H) Sealed Exhibit of underlying records responsive to GC subpoenas d.t. B-227638 and B-242587, furnished by attorney Telfeian on October 28, 1996, for in camera inspection and ALJ ruling. Since I performed my original in camera inspections of these docu- ments for purposes of determining privilege issues, they have been maintained under lock within the San Francisco offices of the Division of Judges, within sealed envelopes containing on their outside my handwritten order that they not be opened or their contents reviewed except at the express direction of the administrative law judge or the Board itself. I have not personally reviewed them since my original inspections, and neither have I authorized any one else to open the sealed envelopes or inspect their contents. These sealed exhibits are now being transferred to the Board along with the other exhibits and transcripts and other papers comprising the record of these proceedings. exception to these rulings, and, subject to significant clarifica- tion below, Raley’s refused to produce the records to the Gen- eral Counsel in the precise form which my rulings contem- plated. This triggered an ancillary subpoena enforcement pro- ceeding, brought by the General Counsel before a United States District Court, a proceeding in which the District Court eventu- ally denied the General Counsel’s petition for enforcement (i.e., for disclosure consistent with my rulings, and beyond that which Raley’s had already provided to the General Counsel in the aftermath of my rulings, as further described below). The District Court ruled that certain portions of the billing records which I had found were not shielded by the privilege (i.e., nar- rative statements of attorney actions and their purposes) were, indeed, privileged, and further ruled that a substantial body of text within Telfeian’s November 10 letter to Teel was also shielded by the privilege. In the meantime, soon after I issued my rulings as to the bill- ing records, Raley’s had surrendered to the General Counsel redacted copies of those records (R Exhs. 39(a) and (b)), con- taining deletions that were substantially, but not entirely consis- tent with my previous rulings. And Telfeian had also surren- dered to the General Counsel, either before or soon after the District Court’s rulings were published, a copy of the Novem- ber 10 Telfeian-to-Teel letter, but only in the redacted form authorized by the District Court rulings. (GC Exh. 135, which is further described in a later subsection.) In trial on August 7, 1997, months after the prosecuting par- ties had rested their respective cases-in-chief, and shortly be- fore Telfeian was to be called as a Raley’s witness, the motions to dismiss paragraph 27 were revisited at length. This revisiting occasioned many more rounds of inconclusive arguments and circular colloquy—featuring, prominently, the General Coun- sel’s overarching and continuously-repeated assertion that Telfeian’s having “switched sides” was the principal feature that had originally inspired the inclusion of paragraph 27 in the complaint, and was a feature that still lay at some uncertain place near the heart of the prosecution theory. As is more fully set forth in the transcript of the August 7 proceedings, I granted the motions to dismiss insofar as those motions attacked certain claims expressed or implied in paragraphs 27(a)(1), (2), and (c). Specifically, I ruled, (1) that Telfeian’s merely having “switched sides”—itself either a mischaracterization of the proven reality or a merely pejorative expression—was quite innocuous in the proven circumstances, and could not establish that he was acting as Raley’s “agent” when he provided ser- vices to UWRU; (2) that Telfeian’s “working for free” for UWRU (or, as the record by then indicated, under a “reduced” fee arrangement) could not establish that Telfeian was Raley’s “agent,” absent evidence that would allow a finding that Raley’s had somehow subsidized Telfeian’s performance of such services (and where the General Counsel had conceded early on—e.g., on August 23, and September 24, 1996—that the government had no such evidence); and (3) that Raley’s (i.e., Teel’s) supposed “consent” to Telfeian’s performing of certain services for UWRU would not, in the proven circum- stances, establish that “Raley’s” was the real actor in the fur- nishing of such services—particularly where there was no basis in the record (nor in the California Code of Professional Re- RALEY’S 529 sponsibility for attorneys) for supposing that Raley’s had any power to prevent Telfeian from performing such services. And I further noted in conclusion that these rulings left only for further litigation and argument those claims in paragraph 27(a)(1) which seemed to allege that when Telfeian’s perform- ance of (“unpaid-for”) services for UWRU “overlapped” tem- porally with his performance of (“paid”) services for Raley’s, this “overlap” would justify the claim that Telfeian was acting as Raley’s “agent” when he performed services for UWRU, at least during the period of “overlap.” In hindsight, I think these rulings, although analytically and legally sound, were perhaps hollow, or at least uncertain, in terms of their real juridical import. (Arguably, the surviving “overlap” theory effectively allowed all other prosecution con- tentions to remain in the case, despite my rulings.) And these rulings clearly had no practical impact on any of the small amount of pertinent litigation that followed them, nor on the parties’ arguments on brief, where all of the same points and arguments ever raised at any stage in the trial are again raised, though sometimes dressed up in new or different ways. I con- tinue to have the same reactions that I voiced in the August 7 proceedings as “rulings.” However, seeing little use in standing on the perhaps juridically meaningless formality that I have already made trial rulings on many of these questions, I will revisit all such matters below. Particularly, I will revisit in some additional detail all of the facts that one party or another cites in argument on brief, before resummarizing my reasons for concluding that the allegations of paragraph 27, and the General Counsel’s underlying “agency” claims, are without merit. D. Supplemental Facts215 1. Background; Telfeian’s historical role in representing Raley’s During a 10-year period ending about October 30, 1990, Henry Telfeian was an attorney and eventually a partner in the San Francisco law offices of the Los Angeles-based McLaugh- lin & Irvin firm. Patrick Jordan was an attorney-partner in that firm when Telfeian joined it, and, after Telfeian came on board, Jordan and Telfeian shared a substantial amount of the labor and employment law counseling and representational work performed for clients of that firm. Throughout the decade of Jordan’s and Telfeian’s cotenure at the McLaughlin firm, Raley’s was a client of that firm. During that decade, both Jor- dan and Telfeian handled counseling and representational mat- ters for Raley’s, but Telfeian eventually took over from Jordan the responsibility for the largest share of the Raley’s work. At the end of October 1990, both Jordan and Telfeian left the McLaughlin firm, and their respective career paths began to diverge. Jordan became an equity partner in the Keck, Mahin & Cate firm in San Francisco, bringing along Raley’s as a client. Telfeian became associated with the Keck firm, too, but only in a time-limited, “of-counsel” capacity. This arrangement con- 215 Findings in this subsection are drawn chiefly from the credible and harmonious testimonial accounts of Abfalter, Teel, Telfeian, and Wright, from R. Exhs. 39(a) and (b) and GC Exh. 135, and from certain correspondence exhibits specifically identified above or below. templated that Telfeian would continue to perform full-time services for Keck or Keck clients, under an agreed-on compen- sation scheme, through December 31, 1991, following which Telfeian would perform no more Keck work and would move on to pursue other interests. During the roughly 13-month pe- riod of his “of-counsel” association with Keck, Telfeian contin- ued to handle a number of Raley’s matters and those of other Keck clients. In the final months of that association, Telfeian and Jordan took steps to enable Jordan to make the “transition” back into the role of chief labor counsel for Keck’s clients, including Raley’s. With one unimportant exception, Telfeian had effectively dissolved his of-counsel association with Keck by December 31, 1991, and he did no other work for Keck or any Keck client throughout 1992.216 Instead, throughout 1992 and beyond, he was heavily involved as a principal in a Russian-American business venture of uncertain overall purpose and scope, but which involved, inter alia, the creation of a joint, Russian- American law firm, Pacific Law Center, which provided legal services to persons or firms doing business in Vladivostok, on the Russian edge of the Pacific Rim. Telfeian apparently headed at least the American end of this firm. In this new phase of his career, Telfeian operated primarily from an office in his home in Berkeley, across the Bay from San Francisco. Then, in 1993, Telfeian became reinvolved with the Keck firm, and, eventually, with Raley’s. In January 1993, Telfeian approached Jordan seeking an arrangement by which he might be allowed to use the Keck law office as, essentially, an “an- swering service” and a “mail drop” for Pacific Law Center, with Telfeian paying for the installation and maintenance of a separate telephone line in the Keck office, which a Keck recep- tionist would answer as “Pacific Law Center.” Jordan was open to the proposal, but he proposed, in exchange, that Telfeian be available to Jordan for “ad hoc assistance” on an “hourly- contract” basis, if Jordan “needed” such assistance. Telfeian said he was willing to make that trade off, but only with the understanding that he could decline any work that was pro- posed, i.e., that he would be “under no obligation to actually accept any such assignment,” and “would only accept the as- signment if [he] deemed it of interest to [him].” Jordan agreed to these general terms and brought the proposed deal to Keck’s managing partner, who confirmed it. Pursuant to this arrange- ment, any work thereafter performed in 1993 by Telfeian for a Keck client (or for Jordan on behalf of a Keck client) was billed by Keck to the client and paid by the client to Keck, with Keck paying Telfeian separately, at the hourly-contract rate estab- lished between Telfeian and Keck. The billing invoices to the client, however, indicated by initials whether it was actually 216 The exception was this: Sometime near the end of 1991, Telfeian and Keck agreed that Telfeian, after December 31, would extend his services to a certain Keck client (not Raley’s or related to Raley’s) in one additional matter, an oral argument before the United States Court of Appeals for the First Circuit, in an appeal from a Board decision in an unfair labor practice case where Telfeian had represented the client in the underlying ULP trial. The oral argument before the First Circuit was heard in Boston in February or March 1992, and Telfeian appeared on behalf of the Keck client in that matter. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 530 Jordan (PWJ) or Telfeian (HT) who had performed any given increment of work itemized on the client bill. When this new arrangement was reached in January 1993, more than a year had passed since Telfeian had last performed any services for Raley’s. As is detailed further below, Telfeian, did not perform any additional work for Raley’s until sometime in the summer of 1993, associated with the Grocery Cases, and then did not perform any further work for Raley’s until on and after September 16, when he stepped in for Jordan, during the latter’s vacation absence, to assist Raley’s in handling the flurry of new labor relations developments affecting the drug clerks that were initially triggered by Eidam’s September 14 dis- claimer. In the summer of 1993, Raley’s was facing the prospect of two, separate NLRB unfair labor practice trials, both set to begin in September, in San Francisco. One trial was associated with the complaints in the “IDCA Cases,” the progenitors of this prosecution, which cases, as we now know, did not end up going to trial in September 1993, and did not actually come to trial (before me) until August 19, 1996, by which point the intervening recognition of UDCEA/UWRU had become the overriding concern of the much-expanded prosecution. The other scheduled trial was associated with the complaints in the “Grocery Cases,” which cases likewise were later taken off- calendar prior to the original, September 1993 trial date, and did not ultimately come to trial (before Administrative Law Judge Pollack) until April 1998. In the summer of 1993, Jordan, by then functioning as Raley’s lead labor counsel in the Keck firm, had made plans to take a roughly 2-week vacation in Europe, starting on Septem- ber 16. He was also committed, soon after his vacation return, to travel to Detroit on several days in October, to represent another client in the concluding phase of a lengthy NLRB trial. (See Don Lee Distributor, Inc., 322 NLRB 470 (1996).) As a consequence, Jordan asked Telfeian in the summer of 1993 to represent Raley’s in the then-scheduled trial of the Grocery Cases, with Jordan to handle the scheduled trial of the IDCA Cases. Telfeian agreed to handle the Grocery Cases, but only if that trial could be rescheduled to avoid a conflict of his own in another matter unrelated to Raley’s. After this, Telfeian or Jor- dan wrote to the administrative law judge then designated to hear the Grocery Cases, seeking a trial postponement. This was followed by a telephone conference between and among Telfeian, the attorneys for the other parties in the Grocery Cases, and the administrative law judge. As a result, the trial of the Grocery Cases was postponed, perhaps “indefinitely.” By the time the Grocery Cases actually came to trial in April 1998, Telfeian had long since relinquished back to Jordan the respon- sibility for representing Raley’s in those cases. But in August 1993, before September 1, Telfeian had met and consulted with Raley’s officials as part of his preparation to represent Raley’s in the Grocery Cases. (As further noted below, the unredacted portions of the billing records of the Keck firm, supplemented by the testimony of Telfeian, Abfalter, and Teel, harmoniously indicate that Telfeian did not perform any services for Raley’s on any date in September before September 16, and that any services he performed for Raley’s thereafter were unrelated to the Grocery Cases, and instead related only to prerecognition and postrecognition issues affecting the drug clerks.) 2. Telfeian’s services for Raley’s from September 16 through October 1 Consistent with Abfalter’s and Teel’s testimony and related findings in part five, the redacted billing records of the Keck firm (R Exh. 39(a)) indicate that Jordan (PWJ)—and only Jor- dan—performed services for Raley’s on various dates in Sep- tember through September 15. However, as already noted in part five, on the afternoon of September 15, soon after Abfalter had learned of Wright’s UDCEA organizing intentions, Jordan and Abfalter and other Raley’s executives participated in their second conference call that day, during which Jordan told the company executives that he would be starting his vacation trip the next day, but had arranged with Telfeian to step in for him to counsel Raley’s concerning these new developments. (Ac- cording to Telfeian’s testimony, this hand-off arrangement had occurred the previous day, September 15, after Telfeian had already arranged with Jordan on an earlier date to take over certain matters involving another Keck client, Lucky Stores.) Then, on September 16, Abfalter, Teel, and other company executives had conferred with Telfeian by telephone, and as a result of this conference, Abfalter issued memos to the Drug Center managers. Consistent with this, the partly-redacted Keck billing records show that Raley’s was billed for 1 hour of Telfeian’s services on September 16. The same records also indicate that Telfeian performed an additional 3 hours of service for Raley’s over the course of 7 more days through the end of the month, on Sep- tember 17, 21, 22, 24, 27, 28, and 30. Telfeian’s, Teel’s, and Abfalter’s respective testimonial accounts harmoniously indi- cate that the services from September 17 through 22 involved ongoing consultations about the wording of a letter conferring recognition on UDCEA, including the wording of the final version that Abfalter signed and dispatched for commercial courier delivery to Wright at about 6 p.m. on September 23. The same body of testimony and billing records further shows, as detailed below, that the nature of Telfeian’s services to Raley’s on and after September 24 varied to a small extent, but primarily involved Telfeian’s writing letters to Local 588 and/or its attorneys in response to a series of postrecognition demands and other claims made to Raley’s by or on behalf of Local 588 and/or its organizing director, Jacques Loveall. (The only exception worth noting had to do with 15 minutes spent by Telfeian on September 28 in drafting what was described in the billing records as “proposed contract language,” which time, as Telfeian testified, was devoted to the wording of the “Jurisdic- tion” clause in the contract that Raley’s would propose to UDCEA/UWRU, which language ultimately appeared in the UWRU agreement at section 23.) Sometime on September 24, Raley’s received by fax four, separate demand-for-recognition letters from Local 588. (GC Exh. 66.) Each was signed by Chief Executive Jack Loveall, and each contained virtually identical text, asserting that Local 588 “represents the majority of the Drug Center employees” at each of four named individual Drug Centers (Benicia, Oroville, RALEY’S 531 Emerald Bay/Tahoe #167, and Ukiah).217 Each letter offered to “demonstrate our majority status” by submitting authorization cards to a third party for verification. Each letter closed with the assertion, “Finally, no other person or organization now represents a majority of such employees and you are hereby cautioned against entering into any contract . . . or negotiating with any person or organization presuming to act as agent for . . . any such employees.” On the same day, Telfeian prepared, signed and caused to be faxed to Local 588 a single reply letter (GC Exh. 67), on Keck letterhead, stating in material part, “Un- fortunately, federal law precludes Raley’s from accepting your offer to demonstrate your labor organization’s majority status,” because, “[o]n September 23 . . . Raley’s granted recognition to [UDCEA] as the exclusive collective bargaining representative of all employees working in Raley’s Northern California Drug Centers, a unit coextensive with the old IDCA unit.” On September 28, Attorney Andrew Kahn of the Davis, Cowell & Bowe firm transmitted a letter addressed to Abfalter at Raley’s headquarters (GC Exh. 68), which was apparently sent by mail only. There, Kahn stated in material part, “. . . [O]n behalf of my client, Jacques Loveall . . . [t]his is to inform you that Ed Wright does not represent the UDCEA. You are advised not to enter into negotiations or agreements with Mr. Wright pertaining to the UDCEA.” No explanation for Kahn’s averral or for his “advice” was included in the letter. On September 30, Attorney Steven Stemerman of the Davis firm faxed a letter to “Chuck Collings” at Raley’s headquarters (GC Exh. 58), stating: This office represents the United Drug Center Employees As- sociation (UDCEA). Mr. Ed Wright does not have the right to speak or negotiate on behalf of the UDCEA. Also on September 30, Telfeian faxed a letter to Kahn (GC Exh. 69), apparently in reply to Kahn’s September 28 letter to Abfalter, but perhaps also intended as a reply to Stemerman’s September 30 fax to Collings. In this letter Telfeian stated in material part: . . . [T]his office represents Raley’s with respect to its recog- nition of the United Drug Clerks [sic] Employees Association (UDCEA). . . . In the future, please direct all inquiries con- cerning Raley’s and the UDCEA to either me or Pat Jordan. In your letter you advise that Mr. Ed Wright does not represent the UDCEA. Please advise as to the factual basis upon which this assertion is made, and, further, the basis upon which you contend that Raley’s should not enter into any negotiations or agreements with Mr. Wright. As the correspondence exhibits further show, it was not until 2 weeks later, on October 14, after Telfeian had written yet an- other request to Kahn on Raley’s behalf seeking particulars, that Kahn replied by fax letter to Telfeian (GC Exh. 73). Kahn enclosed with this letter what purported to be a “Name Reser- 217 As noted in part one, on October 1, Local 588 filed petitions for elections in two of these stores—Emerald Bay/Tahoe #167 and Ukiah—plus three others in which it had not demanded recognition on September 24, but it did not file such petitions for the Benicia or Oro- ville stores, even though it had claimed majority status in those stores in its faxed letters to Raley’s on September 24. vation Certificate” signed by California’s secretary of state (id., p.3), indicating that the name “United Drug Center Employees Association” had been “reserved commencing on the date hereof” for Jacques Loveall’s “use.” This was a copy, however, that did not on its face show “the date hereof,” i.e., the date on which Loveall had supposedly perfected the “reservation” of the “UDCEA” name, if he ever did.218 On Friday, October 1, according to unredacted entries on Keck billing records (R Exh. 39(b)), Telfeian performed 75 minutes of work for Raley’s, identified on the records as “re- view of UFCW election petitions; telephone conversation with Mr. Abfalter concerning [redacted]; review proposed letter to employees.” 3. Jordan returns; Telfeian tells him he is thinking about offering his services to UDCEA/UWRU; Telfeian’s further services to Raley’s through October 15 On Monday, October 4, Jordan returned to work from his vacation in Europe. (Keck billing records for October show that Jordan worked one hour on a Raley’s matter on October 4.) By that date Telfeian already knew that Jacques Loveall was claim- ing that Wright was not empowered to speak for “UDCEA,” and that attorneys in Local 588’s Davis firm were claiming to be the legal representatives of “UDCEA.” (It was also on the same Monday that Davis Attorney Kahn filed the critical charges in this case on Local 588’s behalf, alleging centrally that Raley’s had unlawfully recognized “Mr. Wright’s group.”) Sometime later in the week of October 4, Telfeian and Jor- dan had an extended conversation, pursued chiefly during a lunch get together, during which Telfeian told Jordan he was thinking of calling Ed Wright and offering his services to the new union. According to Telfeian’s (uncorroborated) version of the conversation, as he described it during examination (by Jordan) on August 7, 1997, Jordan reacted to Telfeian’s “think- ing” as a “very bad idea,” and otherwise sought to discourage Telfeian from acting on it. Although the prosecuting parties do not distinctly raise these points on brief, I am mindful that Jor- dan did not testify concerning this conversation, and that Telfeian’s account of it under examination by Jordan as Raley’s counsel could easily be attacked as merely serving Raley’s and/or Jordan’s interest in distancing either or both of them from Telfeian’s subsequent actions. Accordingly, I am inclined to give little weight to Telfeian’s descriptions of Jordan’s reac- tions. (Moreover, consistent with reasoning set forth in my 218 The trial record contains no other evidence of the date on which Loveall’s reservation of the UDCEA name was perfected (if ever). And this is one of many reasons (Jacques Loveall’s own, pointed testimonial vagueness on the matter being another, and the absence of any corrobo- ration of Loveall’s vague claims being yet another) that I deem it rea- sonable to infer that it was not until after September 23, and with knowledge that Wright’s group had already been recognized, that Loveall took any steps to reserve the “UDCEA“ name. And in any case, the General Counsel is clearly invoking rank hearsay when, on brief, she cites “GC Exh. 73, p. 3” (undated and unauthenticated certificate attached to Kahn’s October 14 letter to Telfeian) and “GC Exh. 68” (Kahn’s September 28 letter to Abfalter stating that “Ed Wright does not represent the UDCEA”), in support of the assertion that “[a]t some point, Local 588 registered the name UDCEA with the California Sec- retary of State’s office.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532 concluding analyses, I don’t think it ultimately matters whether Jordan reacted as Telfeian described it.) However, on brief, the General Counsel relies on Telfeian’s account of this conversa- tion for certain arguments—particularly to show “Raley’s” knowledge (through Jordan) as of the week of October 4—that Telfeian was interested in offering his services to the newly- recognized union. And I think Telfeian’s account is properly given weight for this purpose. In addition, I find his account credible, reliable, and deserving of weight not only insofar as it indicates when and what he first told Jordan about his inten- tions, but also as it indicates when and why Telfeian himself first entertained the idea of offering his services to the new union. With those caveats and reservations behind me, I now summarize Telfeian’s descriptions of the conversation: Telfeian told Jordan he was upset about the “UDCEA name” claims raised by Jacques Loveall and/or Local 588, and he said he was thinking about calling Wright and offering his services to Wright’s UDCEA group. Jordan said he thought that would be “a very bad idea.” Telfeian asked why. Jordan said, “It would never be understood, how it was that [Telfeian] could be representing Raley’s one day and switching sides on another day. . . . That Steve Stemerman would never accept this. That litigation was going to ensue and that this would just simply complicate the matter.” Telfeian said he “didn’t understand that. That attorneys switched all the time [citing examples] . . . And that I did not see any difference between my switching from representing Raley’s to representing a union.” Jordan replied that “it didn’t matter what the legal technicalities were, it would never be understood and would just cause problems, and was not a good idea.” Telfeian said he “understood that, but that should not stop me from doing what I wanted to do. That my services for Raley’s were almost at an end; and that I had a right to do whatever I wanted to do. And that representing a union was of interest to me, and that I was going to at least give it some consideration.” Jordan said he “wished I would not do it and that it was a bad idea, and that it did not matter what all these nice technicalities were. The bottom line was it would cause problems and would I please not do it.” Telfeian repeated that “this [UDCEA] name business” was “very disturbing” to him, and that he was “going to at least give it some thought and that it was not up to Mr. Jordan to make this [judgment] call. I had the right to do it and I would give his views some consid- eration, but I was going to consider doing whatever I wanted to do.” The discussion with Jordan, at least as it concerned Telfeian’s interest in offering his services to the newly- recognized union, ended there. Telfeian thereafter “gave con- sideration” to Jordan’s views, but on October 14, Telfeian nev- ertheless decided to get in touch with Wright and offer his ser- vices, as further described below. And he said nothing in ad- vance to Jordan to “alert” him that he had made such a decision and that he intended to act on it. Before first making contact with Wright as described below, Telfeian performed additional services for Raley’s. Keck’s redacted billing invoices to Raley’s show that he did 15 min- utes of work on October 6 “regarding [redacted],” and 45 min- utes of work on October 12, involving two matters, a “Tele- phone conversation with Mr. Abfalter to [redacted]”; and “re- view proposed contract.” The same records show that on Octo- ber 13 he had another telephone conference with Abfalter con- cerning a redacted matter, that he “drafted” something that is unknown due to redactions, that he also drafted a “letter of understanding” concerning a redacted matter; and that he also “review[ed a] letter from Attorney Stemerman objecting to UDCEA,” and “draft[ed a] response.” The latter increments of work apparently refer to other sur- rounding developments independently indicated by the corre- spondence record. Thus, on October 12, Davis Attorneys Ste- merman and Kahn had faxed a jointly-signed letter to Telfeian at the Keck offices (GC Exh. 71). In material part, this letter stated, “It has come to our attention that despite numerous warnings . . . Raley’s has proceeded with . . . negotiations” with “Ed Wright,” that “Jacques Loveall has the exclusive right to use the name UDCEA,” and, “furthermore,” that “Raley’s em- ployees have authorized [Loveall] to represent them under that name.” This was followed by a “demand that Raley’s cease negotiations with Mr. Ed Wright or any unauthorized represen- tative as it relates to the UDCEA.” On October 13, Telfeian faxed a reply to Stemerman/Kahn (G Exh. 71), stating in material part: Raley’s finds it difficult to take your claim seriously in light of the fact that Mr. Kahn still has not responded to my previ- ous letter requesting the factual basis for your assertion[.] . . . Until you provide me with the requested information, Raley’s is constrained by federal law to deal with the UDCEA and its designated representatives. On October 14, Stemerman/Kahn replied in turn by fax to Telfeian at the Keck offices (GC Exh. 73).219 In this letter, Ste- merman/Kahn enclosed as an attachment what they represented was (emphasis added) “a filing with the government made by Mr. [Jacques] Loveall to confirm his exclusive right to the UDCEA name and organization.” (As previously mentioned, the attachment purported to be a copy of a “Name Reservation Certificate” from the Office of the Secretary of State, indicating that the UDCEA name was “hereby reserved” to Jacques Loveall, “commencing on the date hereof.” However, no such date appeared on the copy transmitted by Stemerman/Kahn to Telfeian.) The Davis attorneys also advised Telfeian that he could “obtain from the various appropriate government agen- cies copies of other filings [Loveall] has made to the same end.” (Emphasis added.) On October 15, a Friday, Telfeian faxed a reply (GC Exh. 74) to Stemerman/Kahn’s most recent letter. He asserted, inter alia, that “[t]he fact that a name reservation certification has been filed . . . hardly demonstrates that there are competing claims to the leadership of [UDCEA].” He further advised that he would be “away from this office until November 1,” that “this will give you two weeks in which to provide me with a detailed factual recitation upon which your assertion is based,” and that, “upon receipt of such a factual summary,” he would “be in a better position to advise Raley’s as to whether or not 219 Although this faxed letter is dated “October 12,” the parties stipu- lated that this was a typo, and that it was actually transmitted on Octo- ber 14. RALEY’S 533 the schism you claim exists does, in fact, exist.” He also sug- gested that, in his absence, Stemerman/Kahn should “direct [their] correspondence and inquiries to Patrick Jordan.” Telfeian’s mention in this last letter of his expected 2-week absence “from the office” was, in fact, a reference to a planned private-business trip to Vladivostok and other Russian cities. Relatedly, crediting Telfeian, I find that he left on this trip by a flight from San Francisco on the evening of Sunday, October 17, that the trip itself lasted only 7 days, and that he returned on Sunday, October 24, but performed no legal services for Raley’s during the week after his return (nor ever thereafter, for that matter—although I will later address prosecution claims to the contrary, and the basis for such claims). Before Telfeian left the Keck offices on the afternoon of Fri- day, October 15, Stemerman/Kahn had faxed a reply to Telfeian’s earlier fax to them that day. This reply (GC Exh. 75) was addressed to both Jordan and Telfeian, in that order. In material substance, this letter stated that before the Davis attor- neys would “lay out all the facts [Jacques] Loveall has provided . . . establishing his exclusive right to UDCEA,” they expected Jordan/Telfeian to “advise [them] of all facts” that would “es- tablish [Wright’s] claim to UDCEA.” They also asked Jor- dan/Telfeian to explain why “Raley’s now thinks it has the right to sit in judgment of competing claims.” Telfeian then dictated a one-sentence reply letter, stating (in its issued form as GC Exh. 76), “Since your are requesting us to take action, I believe it is incumbent on you to respond to our inquiries, not the other way around.” Shortly before Telfeian left the Keck offices the same afternoon, the letter had been typed and Telfeian had signed it, but Telfeian told the Keck secretary that it could be dated and faxed to Stemerman/Kahn the following, Monday, October 18, which is what happened. Telfeian credibly testified, and I find, that his drafting of this brief reply letter on October 15, the Friday preceding his Sun- day evening departure to Russia, was his last act of representa- tional service for Raley’s in 1993 or thereafter. Consistent with this, Keck’s billing records show that any services performed for Raley’s after October 15, and through the end of the month were performed by Jordan, and only Jordan. Moreover, any later correspondence of record on Raley’s behalf from the Keck firm to the Davis firm (or to Local 588, or to the Regional Of- fice) was signed only by Jordan. 4. Telfeian-Wright contacts; Telfeian’s retainer by and services for UWRU The story picks up next with Telfeian’s testimony about what he did on the evening of October 14, the evening before he would draft his last letter to Stemerman/Kahn on Raley’s behalf (GC Exh. 76, supra): On October 14, Telfeian placed a call to Wright’s home (i.e., to Wright’s parents’ home, from which Wright was soon to move to his own apartment). Wright’s mother answered the phone and said Wright was not there. Telfeian left his own name and phone number with Wright’s mother. (The parties stipulated that Telfeian’s personal tele- phone billing records show an October 14 call, lasting 2 min- utes, from Telfeian’s home number to Wright’s parents’ num- ber.) Telfeian and Wright agree that Wright returned Telfeian’s call within a few days. Wright stated in his January 1994 sworn statement to the Region’s investigators that his return call oc- curred on October 18. But Telfeian testified that on that day he was traveling between Khavrosk and Vladivostok, and I have already credited his testimony that he left San Francisco for Russia on the evening of October 17, and did not return until October 24. Accordingly, I find that Wright’s return call must have happened prior to the evening of October 17. Wright and Telfeian agree that this was the first-ever conversation between the two, and that neither had ever previously met the other. (Indeed, I credit Wright that he had never even heard Telfeian’s name prior to receiving Telfeian’s phone message from his mother.) Telfeian and Wright agree that in this call Telfeian introduced himself and offered his legal services. Wright pro- vided more details: He testified under adverse examination during the General Counsel’s case-in-chief that in this call Telfeian introduced himself as a “retired labor attorney” with “ideas for new approaches to labor relations.” Telfeian also said that he had “ties to Pat Jordan” (whose name was then unfamil- iar to Wright), and that he had heard that Wright was starting a new union and might perhaps need his services. Telfeian closed the conversation by inviting Wright to call him back if Wright were interested in using his services. These were the only material details provided by Wright about the first conversation. However, as Raley’s and the Gen- eral Counsel now agree on brief, there is good reason to believe that Telfeian and Wright must also have discussed the “UDCEA”-name issue, and must have discussed it in enough depth to cause Wright and other UDCEA founders soon to abandon the UDCEA name and switch to the UWRU name. Thus, on (Monday) October 18, as has already been noted, Wright transmitted letters to both attorney Kahn and Raley’s labor relations chief, Abfalter, indicating that the new union would no longer use the “UDCEA” name. Moreover, Wright had stated in his January 1994 sworn statement to the Board that he and other interim officers of UDCEA/UWRU had de- cided to make the name-change based on “advice of counsel.” Also, in that sworn statement, he said that Telfeian was “hired” by the interim officers sometime in mid-October, prior to Octo- ber 18. However, during the trial he testified that this “hiring” decision did not occur until a second conversation with Telfeian in late October or early November. The question of when Telfeian was formally “hired” by the new union is largely a semantical one. I will find that the formal “hiring” did not oc- cur until Telfeian’s and Wright’s second phone conversation, on or about October 28, and that the first conversation between the two is better seen as a preliminary exploration of the possi- bility that Telfeian might be hired by the new union. In any case, based on all of the foregoing, I find that in this initial conversation Telfeian did more than merely introduce himself and offer his services, but also in some way counseled Wright that the new union should abandon any fight over the “UDCEA” name and should simply rename itself. Moreover, although I don’t think it matters in the way the General Counsel thinks it does, I agree with the General Counsel that, in at least one important sense (Telfeian’s professional duty not to dis- close any confidential communications with a “client”), an DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534 “attorney-client relationship” between Telfeian and Wright and UDCEA/UWRU probably began on whatever date in the period October 14–17 Telfeian and Wright had their first conversation. Wright and Telfeian agree that they had a second conversa- tion sometime more than a week following their first conversa- tion. At trial, they both now believed this was in the last week of October, after Telfeian’s return from Russia. It was in this conversation, Wright now recalled, that Telfeian was formally retained or “hired,” following discussion of fee matters. Wright was the only one who testified about the details. I find, consis- tent with Telfeian’s more particular memory, that the second conversation occurred sometime in the week after his return from Russia on Sunday, October 24. Indeed, considering (a) that Wright had received , probably on October 28, the “ultima- tum” letter (sent to him by Stemerman/Kahn via Express Mail on October 27 (GC Exh. 79, supra), and (b) that Wright sent his own letter to Stemerman/Kahn on October 28, indicating that their letter was being “forwarded to our attorney for reply,” I deem it most likely that Wright and Telfeian had their second conversation on or about October 28. I adopt as my findings Wright’s testimony, during examina- tion by the General Counsel, about fee discussions between him and Telfeian during their second conversation, as follows: Q. BY MS. KATZ: During the conversation when you hired Henry Telfeian, you and he discussed what he would charge UWRU; is that correct? A. Yes, it is. Q. What fee arrangement was—did the two of you make? A. Mr. Telfeian told me that his usual fee was $275. Q. Per? A. Per hour. I remember a very long pause. I ex- plained to Mr. Telfeian that, while we saw that, in the very near future, we would be obtaining income via dues, as of yet, we were not collecting dues. We—our organization was working off of personal funds of a few individuals. And if that was his rate, I was sure he was worth every penny of it, but we would not be in a position to pay that. Mr. Telfeian then informed me that he was quite capable of charging whatever he wanted. For him, I believe he in- dicated money wasn’t the issue. He said, “After all, I’m retired. I was able to retire for a reason,” I think was the statement he made. He indicated that he would not repre- sent us for nothing. Probably said something to the note of “People who get free legal advice usually don’t value it.” Q. Usually don’t? A. Don’t value it. But he would agree to represent us at this time, meaning the time that we were hiring him, for the sum of $25 per hour with the understanding that that arrangement might change if our needs changed in the fu- ture. And I was really happy to hear that. Wright further testified that $25/hour was the fee that Telfeian thereafter charged UWRU for various services, but that he later raised his hourly fee to UWRU to $75 for representational ser- vices associated with this trial. Telfeian testified, on examina- tion by counsel for Local 588, that he did not bill UWRU for any services performed in October. Wright testified, further, that UWRU did not pay for any Telfeian services performed prior to November 6. Summing up to this point: The last letter received by Ste- merman/Kahn from Telfeian writing for Raley’s was dated October 18, and Telfeian had caused it to be drafted on October 15, as his last act of professional service to Raley’s. On the preceding evening, October 14, Telfeian had tried unsuc- cessfuly to make contact with Wright but left a return-call mes- sage. Then, sometime on or before October 17, Wright returned Telfeian’s call, and one result of this call was that Wright and the interim officers of UDCEA renamed their union UWRU, and so notified Raley’s and Davis Attorney Kahn on October 18. Then Wright and Telfeian had their second, “fee- arrangement” discussion on or about October 28, at or about the point that Wright would have received Stemerman/Kahn’s “ul- timatum” letter (“If we do not receive written confirmation by noon Monday . . . please advise us who will be representing you in court.”). Then, on November 10, Telfeian replied on Wright/UWRU’s behalf to the ultimatum letter, rejecting Ste- merman/Kahn’s claims and demands as “frivolous” and “made with the transparent purpose of attempting to intimidate the founders of the UWRU.” Crediting Telfeian, I find that the only other services he per- formed for UWRU within the next month or so involved assist- ing UWRU in drafting a union constitution and bylaws and making various preliminary filings and reports (such as “LM- 2s”) to the Labor-Management Services Division of the United States Department of Labor. 5. Telfeian’s phone call and followup letter to Teel The narrative to this point omits only one other set of argua- bly relevant activities on Telfeian’s part, a phone call from Telfeian to Teel in mid-late October, and a followup letter from Telfeian to Teel dated November 10, the same day Telfeian had replied on UWRU’s behalf to the Stemerman/Kahn ultimatum letter. Again, just as in other cases above, legitimate claims of privilege precluded a thorough examination of either trans- action. However, the record shows as follows with respect to both transactions: Sometime in mid-late October, as both Teel and Telfeian agree, Telfeian called Teel and told him that he was thinking of offering his legal services to the new union. Telfeian believed that he placed this call in the last week of October, after his return from Russia. However the unredacted portions of the text of his followup letter of November 10 (infra) could be inter- preted to imply either (1) that the call was earlier, i.e., some- time before the new union’s name change was announced on October 18, or was, indeed, in the last week of October, after Telfeian and Wright reached understandings about fees. Be- cause the precise timing is unimportant, I make no more par- ticular findings on the question. The record discloses little else concerning this call, except through unredacted references in Telfeian’s November 10 followup letter to Teel, as described next: On November 10, the same day that Telfeian wrote to Ste- merman/Kahn for the first time on his Berkeley home/office) letterhead, Telfeian wrote to Teel, also on the same private- RALEY’S 535 office letterhead (GC Exh. 135 is the redacted version received into evidence). The unredacted portions of that letter show that it was addressed to Teel as Raley’s “Co-Chairman,” beneath the words “Privileged and Confidential.” The opening para- graph, and the first sentence of the second paragraph stated as follows: Dear Jim: This letter will confirm the telephone conversation we had several weeks ago concerning my legal representation of the United Wholesalers and Retailers Union (then known as the United Drug Center Employees Associa- tion). As I advised you, I have been requested by the interim officers of the UWRU to provide the union with legal ser- vices. The remaining five or six lines in the second paragraph are blotted out on General Counsel’s Exhibit 135, as are another 10 or so lines comprising the third, penultimate paragraph. The fourth, and final paragraph is unredacted; it states: Based on this information, it is my understanding that Raley’s does not have any objection to my representing the UWRU under the conditions outlined above. If that is incorrect and Raley’s does object to my representation of the UWRU, please let me know immediately. Considering the unredacted text in Telfeian’s letter to Teel, and the physical/spatial context within which that text appears, it is reasonably obvious that Telfeian was confirming with Teel (a) that he had previously informed Teel of his intention to represent UWRU under certain “conditions” as “outlined” in a redacted portion of the letter, (b) that he believed that Raley’s had no objections to his representation of UWRU under those “conditions,” and (c) wanted Teel to let him know immediately if his understanding were incorrect on this score. Teel testified that he never replied to this letter, and, in the absence of any other evidence on the subject, I infer from the known context that Teel’s failure to reply indicated at least Raley’s acquies- cence with respect to Telfeian’s proposed representation of UWRU, and probably signaled affirmatively that Raley’s had “no objection” to Telfeian’s representing UWRU. However, as I see it, the most important question raised by these facts is this: Does either “acquiescence” or a posture of “no objection” on Raley’s part have any tendency to prove that Telfeian acted thereafter as Raley’s “agent” when he performed legal services for the new union? As I indicated in the extensive colloquy preceding my trial “rulings” on August 7, 1997, and will further discuss in my analyses and conclusions below, I think such information is essentially without significance to the agency issue, absent a showing—never made herein—that Raley’s had the power to prevent Telfeian from doing either what he told both Jordan and Teel he was “considering” doing” (offer his services to Wright and the new union) or what he was other- wise shown to have done thereafter in the particular legal ser- vices he performed for the new union. C. Analyses; Conclusions The General Counsel and Local 588 are persuaded that the foregoing facts, considered in their “totality,” add up to a case for finding that Telfeian was acting as Raley’s “agent” when he provided services to the new union, and, therefore that Raley’s was the real “provider” of these services. Nevertheless, their arguments on brief are notable for their common avoidance of any attempt to engage meaningfully with the “agency” question as a legal issue. (They make no attempt, for example, to cite to treatises or case authority dealing with how and under what circumstances “agency” may be established, and how the proven facts might fit within the established law of agency.) Rather, sidestepping such apparently inconvenient technical questions, the prosecuting parties simply (1) invoke the known facts (adding a heavy amount of advocacy “spin” to their dis- cussions of the facts); (2) cite a number of Board cases which I regard as wholly unhelpful to any resolution of the agency issue raised in this case (mainly because “agency” was essentially built into the fact patterns of the diverse cases cited,220 and then (3) simply reassert in conclusionary terms that which it was their burden to establish in the first instance—that Telfeian was Raley’s “agent.” The prosecuting parties continue to invoke certain always- well-known and never-disputed facts pertaining to Telfeian’s successive representational and counseling roles for, respec- 220 At p. 349 of her brief (containing what amounts to the General Counsel’s only “legal” argument), counsel for the General Counsel attempts to suggest that there exists a hoary body of closely pertinent, if not controlling Board law on the issue. However, the General Counsel’s opening assertion in this vein quickly peters out into a confused and essentially meaningless statement. Thus, she states (emphasis added): “The Board has long found that an employer’s attorney also represent- ing the union, or the employer referring an attorney, even one not rep- resenting the employer, to a union is a factor, when combined with other conduct, that constitutes [sic] unlawful assistance.” Moreover, the only cases she cites in support of whatever she meant by this statement are cases (most of them rather ancient and somewhat inscrutable as to their facts and precise rationale) in which the employer was clearly shown to have played an undisputed and identifiable role in “furnish- ing” or “referring” an attorney to an employer-favored (and usually unlawfully employer-sponsored) group of employees (either decertifi- cation petitioners or employees seeking to organize an “independent” union in response to organizing activities by an “outside” union).[*] Local 588’s brief invokes most of the same cases cited by the General Counsel, plus others. For reasons only hinted at in the preceding dis- cussion, I judge that none of the cases cited by either of the prosecuting parties is of any real instructive value when it comes to deciding whether, in this case, and on this record, Raley’s could be found to have been the “principal” on whose behalf Telfeian was “really” acting when he performed the above-described legal services for UWRU. [*] The cases and pages cited by the General Counsel as authority for the quoted lead proposition (or for some subset of propositions within the lead proposition) are as follows: Remington Rand, Inc., 2 NLRB 626, 698–699, 700–701, 707, 709, 715–716, 732–33 (1937), modified 94 F.2d 862 (2d Cir. 1938), affd. 304 U.S. 576; Arthur Col- ten, 6 NLRB 355, 362, 364 fn. 6 (1938), enfd. 105 F.2d 179 (6th Cir. 1939); Falk Corp., 6 NLRB 654, 660–663 (1938); Burry Biscuit Corp., 24 NLRB 1053, 1056–1059 (1940), enfd. on relevant grounds and modified in part 123 F.2d 540 (7th Cir. 1941); and Duquesne Univer- sity, 198 NLRB 891, 892, 899–900 (1972). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536 tively, Raley’s and UWRU. And they continue to make long- familiar arguments which depend in the end for any potential merit on the accuracy or the appropriateness of certain terms of characterization used by the prosecuting parties to describe Telfeian’s actions and his status at various points. In fact, virtu- ally all of their arguments commonly hinge on the following set of assertions: (1) Telfeian was “still representing Raley’s” when he first offered his services to Wright; (2) indeed, he was “still representing Raley’s” even as late as “November 10,” by which point he had already given “free advice” to Wright/UWRU, i.e., advice for which he did not seek or receive any compensation from UWRU; and (3) at all times during the period when Telfeian’s performance of “free” services for UWRU “overlapped” with his continuing “representation” of Raley’s, he was performing the services for UWRU with Raley’s “consent.” Below, I will focus primarily on those “overlapping representation” contentions, with particular em- phasis on the General Counsel’s arguments that the “overlap” period extended all the way through “November 10.” The General Counsel (echoed by Local 588) urges two basic “findings,” set forth in her brief as subsection headings. Thus, she argues (Br. at 284–290) that “By October 18, at a Time When He Still Represented Raley’s, Attorney Henry Telfeian Offered to Represent UDCEA, He Provided Free Legal Advice to UDCEA, and He was Hired by UDCEA.” Then she argues (Br. at 290–297) that “Telfeian Represented Raley’s Until No- vember 10.” The General Counsel’s first claim includes a fac- tual averral that is uncontroversial. Raley’s agrees (and I have already found) that in Telfeian’s first conversation with Wright on some date after October 14 and before October 18, Telfeian offered advice which caused Wright and the other interim offi- cers of the new union to change the union’s name from UDCEA to UWRU, a name change that Wright announced to Raley’s and to Davis Attorney Kahn in letters mailed on Octo- ber 18. The only controversial part of the first claim lies in its assertion that Telfeian was “still representing Raley’s” when he had this first conversation with Wright. This latter claim is less a matter for a finding of fact than it is a matter for interpreting the known facts and reaching a legal conclusion concerning them. The General Counsel’s second claim depends entirely on the same “fact/interpretation” distinction, i.e., on whether the facts can responsibly be interpreted to warrant the legal conclu- sion that Telfeian was “still representing Raley’s” even as late as November 10. As I discuss below, I think the conclusion asserted by the General Counsel amounts to little more than playing with words, particularly with what “representing Raley’s” really means in the context of the known facts. I have found that Telfeian performed his last legal services of any kind for Raley’s on the afternoon of October 15, when he dictated a letter to Stemerman/Kahn which was typed on Keck letterhead the same Friday afternoon, but which he au- thorized to be dated “October 18” and to be mailed to Stemer- man/Kahn on that latter date. Clearly, this was a “representa- tional” act performed by Telfeian on Raley’s behalf. However, just as clearly in my view, there is no factual basis in the record for the assertion that he was “still representing Raley’s” at any point after that date, unless one were to blur an important dis- tinction (as I see it) between “representing” Raley’s and “owing and acting on ongoing duties” to Raley’s arising from Telfeian’s original attorney-client relationship with Raley’s. Most of the prosecution claims depend on precisely this kind of distinction-blurring: The General Counsel argues (Br. at 289; emphasis added): “The issue is not the last day [Telfeian] per- formed a task for Raley’s but how long he continued to repre- sent Raley’s as legal counsel.” This is a superficially unexcep- tionable assertion, standing alone, but it is when counsel for the General Counsel elaborates on this assertion and clarifies what is meant by “continued to represent Raley’s” that the distinc- tion-blurring really occurs. Thus, in arguing that Telfeian was “still representing Raley’s” as of November 10, the General Counsel cites two related facts: First, that Telfeian wrote a let- ter to Teel on that date (GC Exh. 135, supra); second, that Telfeian acknowledged (in the course of arguing at trial that the letter was shielded from subpoena-disclosure by attorney-client privilege) that he was “acting as Raley’s attorney” when he wrote that letter. In short, the General Counsel equates the fact that Telfeian, admittedly “act[ed] as Raley’s attorney” when he wrote the letter with evidence which “establishes that Telfeian continued to represent Raley’s at least until November 10[.]” (GC Br. at 289; emphasis added.) But it is a proper matter for judicial/administrative notice that an attorney’s professional duties and responsibilities to a client or former client are not extinguished upon the perform- ance of the last professional service for the client. Rather, in many critical respects, “the client remains the client” for pro- fessional responsibility purposes for as long as the attorney (or the associated law firm) continues in professional or mortal existence, and no matter how many years ago the last profes- sional service may have been performed for the client. Accord- ingly, the General Counsel’s point that Telfeian was “still act- ing as Raley’s attorney” when he wrote the November 10 letter to Teel is both (1) technically true, but (2) only trivially so, because the technically true statement in this instance cannot “establish” that Telfeian was acting in any “representative” capacity for Raley’s when he wrote this letter, even though the letter is cited as evidence which “establishes” that Telfeian was “still representing” Raley’s as of November 10. Moreover, as I see it, Telfeian’s writing of this letter not only has no logical connection or relevance to the question whether he was “still representing Raley’s” as of November 10, but its connection to the bottom-line question whether Telfeian was acting as Raley’s “agent” in his furnishing of any services to UWRU is even more remote and attenuated. Indeed, on analy- sis, what the General Counsel is really suggesting by this argu- ment is that an attorney’s acts on behalf of a new client can be chargeable on an “agency” theory as the acts of a former client simply because the attorney “still” owes, and acts on, ongoing professional duties and responsibilities to the former client even while he performs representational services for the new client. But this is a proposition that would be hooted off the stage if it were more straightforwardly presented, and I see no need to dwell further on the point. Contrary to the General Counsel, and with the foregoing dis- tinctions being paramount in my analysis, I judge that Telfeian’s last act of representational service to Raley’s—i.e., his October 15 drafting of a reply letter to Stemerman/Kahn— RALEY’S 537 also marked the point at which his “representation” of Raley’s ended, and after which he no longer “represented” Raley’s in any meaningful sense of the term. Accordingly, seen this way, there was, in fact, no identifiable “overlap” period during which Telfeian “represented” both UWRU and Raley’s.221 Moreover, I see Telfeian’s subsequent communications with Teel (both his telephone call to Teel in mid- or late-October, and his Novem- ber 10 followup letter) not as acts of “representation,” but, at best, merely as attempts to discharge ongoing professional du- ties to Raley’s, i.e., to give “notice” to a former client about his intentions to represent a new client with whom the former cli- ent has ongoing dealings, and about the conditions under which he intends to represent that new client. Moreover, as I discuss next, it is by no means clear in the circumstances that Telfeian owed a professional duty even to give such “notice” to Raley’s, much less is there any reason to suppose he was required to obtain Raley’s “consent” before he was free to act on his an- nounced intentions. As previously noted, counsel for the General Counsel and counsel for Local 588 both argued during the trial that when Telfeian “switched sides” (meaning “began to perform legal services for the new union”), he necessarily put himself in a position of “conflict” as between the respective “interests” of Raley’s and UWRU. Beyond that, as previously noted, counsel for Local 588 embraced my suggestion during one trial collo- quy that, if, indeed, such a “conflict” existed, then Teel’s sup- posed “consent” to Telfeian’s acting in apparent “conflict” with Raley’s interests could itself be seen as a kind of “assistance” to the new union. However, the real question here was whether there ever existed any such “conflict” that would have required Raley’s “consent” before Telfeian could properly perform ser- vices for the new union. And after the record had already been made about what services Telfeian did, in fact, perform for the new union, neither the General Counsel nor counsel for Local 588 was able to identify any instances in which Telfeian oper- ated in any way in a position of “conflict” vis-à-vis his respec- tive professional duties to Raley’s and UWRU. And in fact, the record utterly fails to show that Telfeian ever put himself in a position of “negotiating” or “dealing” with Raley’s on UWRU’s behalf, or vice-versa. Rather, the record shows only that Telfeian, in his representative capacity for UWRU, wrote a letter on November 10, to Stemerman/Kahn responding to the latters’ demands and ultimata to Wright, and thereafter assisted UWRU in the drafting of a constitution and bylaws and in completing various filings required under the LMRDA. 221 At best, if one were to posit that Telfeian’s first conversation with Wright occurred on October 15, and prior to his drafting of the “Octo- ber 18” letter on Raley’s behalf to Stemerman/Kahn, the “representa- tional overlap” might be argued to have existed for some part of the day of October 15. However, the evidence as to the relative timing of these two events is too vague to permit any such finding. For although we know that Telfeian drafted the Stemerman/Kahn letter on October 15, we don’t know precisely when it was that Wright returned Telfeian’s initial call to Wright’s mother on the evening of October 14. All we know (from both Telfeian’s and Wright’s testimony) is that Wright’s return call, and the first conversation between Telfeian and Wright, occurred sometime “within a few days” after Telfeian had left a mes- sage with Wright’s mother on the evening of October 14. Moreover, although the prosecuting parties at one point sought to argue that Telfeian’s “switching sides” put him in violation of the California State Bar Rules of Professional Con- duct, they were unable to put their finger on any particular “conflict” or “client-consent” rule that would govern Telfeian’s proven acts of counsel to and representation of UWRU, i.e., a Bar Rule that would have required Telfeian to “disclose” and then obtain Raley’s “consent” before performing those services for UWRU.222 And it was after repeatedly inviting prosecuting counsel to identify what it was that Telfeian was shown to have done that would have created any such “conflict,” and after receiving no coherent answer at any stage (other than the “switched sides” mantra) that I ultimately ruled (on August 7, 1997) that Raley’s had not been shown ever to have been in the position of having power to prevent Telfeian from performing those services, and, therefore, its “acquiescence,” or even its “no objection” posture could not be taken as either “authoriza- tion” or “consent.” Put in slightly different terms, and without attempting here to reparse the Bar Rules, I judged then, and I hereby reaffirm the judgments, (a) that the Bar Rules do not speak meaningfully to the situation in which Telfeian found himself; and (b), lacking any Bar Rule that would have empow- ered Raley’s to prevent Telfeian’s proven actions by withhold- ing its “consent,” Telfeian was free as an attorney and a citizen to offer his services to UWRU and thereafter to represent and counsel UWRU in the ways he was shown to have done. Put even more simply, I judged then and I judge now that you can’t in any meaningful way “authorize” or “consent” to a third- party’s behavior so as to make that party your “agent” unless you already have some demonstrable power or “hold” over the third party to prevent the behavior for which you are now being charged with responsibility. On brief, neither of the prosecuting parties has made any fur- ther attempt to invoke the Bar Rules in support of any of their arguments. On the contrary, insofar as they address the profes- sional “propriety” of Telfeian’s actions at all, they are now reduced to arguing in generalized and wholly unpersuasive terms that Telfeian’s representation of UWRU somehow cre- ated an “appearance of impropriety” (GC Br. at 349),223 or that 222 Arguably applicable excerpts from the California Bar Rules were received into evidence by stipulation of the parties as ALJ Exh. 66. The argument and other colloquy of record pertaining to these excerpts between and among counsel and the bench took place on August 7, 1997. 223 The General Counsel’s statement, in full, is as follows (emphasis added): “In addition, sometimes the appearance of impropriety can be more important than whether the impropriety actually occurred. Raley’s, by its attorney Telfeian representing UDCEA/UWRU at the same time he represented Raley’s [sic], created the impression that Raley’s was running UWRU to ensure that Local 588 would never be involved in this new in-house union, and that UDCEA/UWRU would act in concert with Raley’s position.” The emphasized portions of this statement obviously imply the abandonment of the General Counsel’s erstwhile claim that Telfeian’s conduct was, in fact, “improper” under the Bar Rules. That aside, a question never answered by the General Counsel is this: In whose minds, or in whose perceptions, exactly (other than the General Counsel’s and Local 588’s) could the supposed “ap- pearance of impropriety” be said to have existed? I think the question answers itself. Moreover, insofar as the General Counsel’s inconclusive DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538 “Telfeian’s conduct does not pass the ‘sniff test’ [and] smells bad[.]” (Lo. 588 Br. at 67.)224 The only other arguably distinct point that I can tease from the General Counsel’s various inconclusive discussions on brief is one that to a large degree contradicts the prosecution at- tempts elsewhere to establish that the “interests” of UWRU which Telfeian was bound to serve “conflicted” with the “inter- ests” of Raley’s. Rather, this new argument now seems to stress the nearly opposite notion that Telfeian’s services on UWRU’s behalf actually “served Raley’s interest,” and, therefore, this warrants treating Telfeian as Raley’s “agent.” Before address- ing the particular “interest” of Raley’s that the General Counsel identifies as supposedly establishing the point, a more general observation needs to be made: It is unremarkable that an attor- ney’s representation of one client may serve not only that cli- ent’s “interests,” but those of another client or clients, current or former. Indeed, there are countless such examples in the everyday practice of law. And it is easy to see that both Raley’s and UWRU’s employee founders and interim officers had cer- tain “interests” in common—such as, for example, a common interest in maintaining UWRU as a viable, “independent” un- ion. However, such a confluence of interests between or among an attorney’s clients can hardly mean that the attorney, in the course of representing the interests of client A, is simultane- ously “representing” all of the clients whose “interests” may arguably be served by his/her representation of client A. And thus any argument that relies on such a mere confluence of interests to establish that the attorney was acting as the agent of a client other than client A, would have to be rejected as merely disingenuous, not to mention profoundly disruptive in terms of its practical impact on the professional relationship between the attorney and each of the clients s/he serves. Moreover, when it comes to identifying the particular “inter- est” of “Raley’s” that Telfeian was supposedly “representing” under the guise of furnishing counsel and representation to UWRU, the General Counsel has chosen what I regard as a musings here suggest that the particular “appearance of impropriety” created by Telfeian’s actions lay in the appearance that “Raley’s was running UWRU to ensure that Local 588 would never be involved in this new in-house union,” I regard the suggestion as ludicrous—a point I elaborate briefly in concluding discussion below. 224 The comments and questions in the last footnote apply here, too. Moreover, in reaction to the “sniff-test” claim, I would put Local 588’s point slightly differently: It may be that “Telfeian’s conduct” would not pass a “sniff test” (especially if Local 588 or Davis firm lawyers were the ones doing the sniffing). But then the same could easily be said of other “conduct” surrounding Local 588/Loveall’s attempts to coopt the “UDCEA” name and, by that ploy, to attempt to stymie and undo the recognition based on the majority-showing that UDCEA had validly obtained through employee signatures on petitions that had been re- ceived by Raley’s well before Jacques Loveall’s “UDCEA” was ever shown to have “existed,” and certainly well before any authorization cards for Loveall’s “UDCEA” were ever shown to have been put into circulation among the drug clerks. However, the more fundamental problem with Local 588’s “sniff-test” argument is that, after a full litigation of the merits has been conducted, a lingering stench in the nostrils is no substitute for “proof by a preponderance” of the ultimate claim maintained by the prosecution—that “Raley’s” was the real “pro- vider” of Telfeian’s services to UWRU. ludicrous example, one which deserves only the briefest of responses. The General Counsel states (Br. at 297; emphasis added): When Raley’s attorney Telfeian switched sides and became UDCEA/UWRU’s attorney, Raley’s was assured that UDCEA would not align itself with Local 588 as IDCA had done. . . . On September 15, Wright had come to Raley’s res- cue by offering an alternative to Local 588. By October 18, Raley’s attorney Telfeian performed a similar function by be- coming UDCEA/UWRU’s attorney, thereby ensuring [sic] Raley’s that UWRU would never affiliate with Local 588 as IDCA had done. Whew! What a relief for “Raley’s,” whose executives must have been unable to sleep between “September 15” and “Octo- ber 18” out of fear that Wright’s UDCEA group, whose found- ing and organizing principle and raison d’ etre was the creation of an “independent,” and “unaffiliated” union, and which itself grew out of a militantly antiaffiliationist employee movement that had conspicuously emerged during Eidam’s tenure, would nevertheless change its skin after recognition, and would cleave to local 588, absent Telfeian’s intervention to save Raley’s bacon. I have given as much attention to the various prosecution theories and arguments as I think they have deserved in all the circumstances. These are my concluding findings and conclu- sions of law: The General Counsel has not established by a preponderance of credible evidence in the record as a whole that “Raley’s” was the real “provider” of Telfeian’s services to UDCEA/UWRU. On the contrary, the record as a whole strongly tends to show that Telfeian, as he was winding up his representative services to Raley’s, became increasingly out- raged by what he saw as increasingly overreaching and un- founded claims, demands, and threats made against Wright and the new union by Local 588 and/or Jacques Loveall and/or Gil Eidam and/or by Attorneys Stemerman/Kahn variously writing on behalf of one or more of those parties or persons. On this record, this personal outrage, and nothing said or done by any Raley’s official or by attorney Jordan, far more easily explains why Telfeian offered his services to Wright and the new union. Telfeian did not perform any legal services for the new union that put him in a conflict-of-interest posture with respect to his professional duties either to Raley’s or to the new union. Al- though he notified Jordan and Teel of his intentions, neither of those persons, nor “Raley’s,” had any effective power to pre- vent him from acting on his intentions, and he was thus a “free agent” in this respect. All of these findings are incompatible with the notion that Telfeian was acting as Raley’s “agent” when he—not “Raley’s”— provided counseling and representa- tional services to the new union. Neither could the facts legiti- mately support any other theory according to which “Raley’s” could “fairly be said to be responsible” for Telfeian’s providing such services to the new union. Accordingly, the allegations of paragraph 27 are without merit, and will be dismissed. RALEY’S 539 II. ALLEGATIONS RELATING TO THE UNION-SECURITY CLAUSE AND ITS ENFORCEMENT (COMPLAINT PARS. 29, 32, 33, 36, 38, 41, AND 42) A. The General Counsel’s Overarching Theory Premised on Unlawful Recognition In the paragraphs listed above in the section heading, the General Counsel has alleged a large number and variety of post-recognition violations by UWRU under Section 8(b)(1)(A) and (2), and by Raley’s, under Section 8(a)(1), (2), and (3). All these counts relate centrally to the fact that, in late October 1993, Raley’s and UWRU signed a labor agreement, made retroactive by its terms to October 3, 1993, which contained a union-security clause and a related provision defining “mem- bership in good standing.” The General Counsel does not chal- lenge the wording or form of the text in these related contract clauses. Rather, consistent with averrals which are interwoven into all of the above-listed counts in the complaint, the General Counsel contends that Raley’s and UWRU, having been parties to an unlawful recognition to begin with, had no right to enter into or “maintain” an agreement containing a union-security clause, and thus compounded the original violation by doing just that. The General Counsel further contends that UWRU (and, eventually, Raley’s) aggravated the original violation in more particular ways during the period March 2, 1994, through March 13, 1995. This was a period during which UWRU took successive steps first to publicize the clause and employees’ obligations under it, and, later, to enforce or threaten to enforce the clause against particular employees who had not paid the UWRU initiation fee or who had become delinquent on their monthly dues (or both). Insofar as the complaint counts in question commonly de- pend for their merit on a legal conclusion that the recognition of UDCEA/UWRU was unlawful to start with, this is a conclusion that I have already rejected as either unsupported by credible evidence, or, in some instances, by a credible legal theory to match the undisputed facts. And, as I discuss below, my rejec- tion of the General Counsel’s central claim in this litigation will likewise require me to reject the main theory of prosecution on which all of the counts at issue in this section are commonly based. If the recognition of UDCEA/UWRU had been the product of unlawful “assistance” on Raley’s part, the very entering into and “maintaining” by Raley’s and UWRU of an otherwise proper union-security clause would violate Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2). This is because the first proviso set forth in 8(a)(3) exempts from the section’s more general proscriptions against “discrimination . . . to encourage . . . union membership” only union-security agreements reached with a union “not established, maintained, or assisted by any action [otherwise barred by] Section 8(a) of this Act.” And see, e.g., St. Helens Shop ‘N Kart, 311 NLRB 1281 fn. 2 (1993). For the same reason, if the recognition were unlawful, any threats or implied threats by UWRU and/or Raley’s to “enforce” the clause, would likewise implicate UWRU and/or Raley’s in one or more distinct violations under Section 8(b) and/or 8(a). Essentially the opposite result obtains, however, if the under- lying recognition were lawful. Thus, under established interpre- tations of Section 8(a)(3) and 8(b)(2), when a union and an employer are parties to a lawful bargaining relationship and a lawful union-security agreement, the union may lawfully de- mand that employees comply with its terms by tendering the initiation fee and periodic dues required as a condition of mem- bership; indeed, the union may further demand that the em- ployer discharge a noncomplying employee, provided that the union has fulfilled its “fiduciary” duties by giving the noncom- pling employee prior notice and an opportunity to cure any claimed dues or initiation fee delinquency before any discharge action is demanded or taken. See, e.g., Green Team of San Jose, 320 NLRB 999, 1004–1005 (1996).225 (The General Counsel makes no claim that UWRU failed to fulfill any such fiduciary requirements, and thus I need not independently examine that question.) I have earlier found that the voluntary recognition of UDCEA/UWRU by Raley’s created a presumption that the new union was the “exclusive representative “of the drug clerks within the contemplation of Section 9(a). I have earlier con- cluded, in substance, that the General Counsel failed to rebut that presumption, i.e., failed to establish any credible factual or legal basis for finding that UDCEA’s majority-showing on which the recognition was based was the “tainted” product of “coercion” or any other form of unlawful “assistance” by Raley’s. Thus, the recognition was lawful, and it created a law- ful 9(a) relationship between Raley’s and the new union, one in which the parties were legally free to enter into a labor agree- ment containing a union-security clause, and to “maintain” and “enforce” the clause. Accordingly, all counts are dismissed which allege either unlawful “maintenance” of a union-security agreement by the respondent parties, or which suppose that routine acts of enforcement of the agreement were unlawful because Raley’s and UWRU had no right to enter into or main- tain the agreement in the first place. B. Independent Theory Linked to Reinstatement Fee The General Counsel also has alleged and maintained an al- ternative and independent theory of violation with respect to the reinstatement fee charged by UWRU. The facts underlying this alternative theory are undisputed and can be summarized quickly for present purposes: After UWRU and Raley’s reached a labor agreement con- taining a union-security clause, UWRU eventually threatened to invoke discharge rights under the clause against certain em- ployees for their failure to maintain (financial-core) “member- ship in good standing.” The employees targeted by these threats either had not paid their initiation fee or had become delinquent on their monthly dues, or perhaps both in some cases. Payment of the initiation fee was required by UWRU’s constitution and bylaws as a condition of becoming a “member.” Paying monthly dues “in advance . . . on the first of each month,” was required as a condition of retaining “membership in good stand- ing.” And under the bylaws that status was automatically lost if 225 See also (as to fiduciary requirements of notice and opportunity to cure), NLRB v. Hotel & Restaurant Employees Local 568 (Philadel- phia Sheraton), 320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888 (1962); and Communications Workers Local 9509 (Pacific Bell), 295 NLRB 196 (1989). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540 an employee covered by the union-security clause became de- linquent for more than 10 days beyond the monthly “due date.” Most important for these purposes was that UWRU, after a number of unilateral waivers and extensions of the “grace pe- riod” for tendering initiation fees and monthly dues accrued to date (ultimately to August 24, 1994), eventually required cer- tain still-delinquent employees, as a condition of reinstatement to membership in good standing, to pay a reinstatement fee called for in UWRU’s bylaws. Under the governing UWRU bylaws at times material to the complaint, “reinstatement” re- quired the delinquent employee to tender any unpaid initiation fee and any past dues owed, plus another amount, calculated at “$5 per month” of prior delinquency.226 The $5-per-month amount can be seen as the only distinct “fee” required for rein- statement, and, in that sense, that amount was itself the “rein- statement fee,” as distinguished from amounts required merely to clear the employee’s prior delinquencies. Hereafter, I will often refer to the $5-per-month reinstatement fee amount as a “delinquency surcharge,” without intending the term to have any talismanic legal significance. The legal question raised by these facts can be broadly stated this way: Do such delinquency surcharges qualify for inclusion in the category Congress had in mind when, in dovetailing pro- visions set forth in Section 8(a)(3) and 8(b)(2) of the Act, it used the expression “the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership?” The General Counsel asserts in this prosecution that the answer to this question, even as broadly stated, is “No.” However, to bring into relief the particular set of claims that underpin the General Counsel’s theory of violation, it is better to break the broad question down into the following three sub- questions: (1) Does it meaningfully contribute to the analysis of the broad question to use conclusionary labels such as “fine,” “penalty,” or “assessment,” to describe the delinquency sur- charge? (2) Does it in any way matter to the analysis that UWRU referred to the delinquency surcharge for a time as a “late fee?” (3) Does the fact that the amount of the delinquency surcharge necessarily “varied” according to the length of an employee’s delinquency require the conclusion that the delin- quency surcharge is not “uniformly required” within the con- templation of the governing statutory language? For reasons discussed in due course, I will conclude that the answer to the broadly-stated question is “Yes,” and that the common answer to each of the three subquestions is “No.” 226 In May 1995, UWRU amended its bylaws to increase the initia- tion fee and the monthly dues, and to increase the reinstatement sur- charge amount. However, under the amended bylaws, the reinstatement surcharge was “capped” at an amount not to exceed either 6 months’- worth of dues-arrearages, or 50 percent of the delinquent employee’s “average gross weekly pay,” whichever was lower. The complaint makes no attack on UWRU’s practices pursuant to these new bylaws. Rather, it attacks UWRU’s actions only in the period when it operated under the original bylaws, specifically its actions in the period March 2, 1994, through March 13, 1995. Accordingly, my discussion below focuses on UWRU’s practices under the old bylaws during the period identified in the complaint. C. Relevant Facts in Detail As noted above, in late October 1993, Raley’s and UWRU signed a labor agreement (GC Exh. 33), made retroactive by its terms to October 3, 1993, which contained a union-security clause (sec. 2(a)) and a related provision (sec. 15). The union- security clause and the related provision are identical in their text to the counterpart clauses that had appeared in the final (1989–1992) IDCA agreement covering the drug clerks (GC Exh. 43). Section 2(a) of the UWRU Agreement states: It shall be a condition of employment that all employees cov- ered by this Agreement who are [sic] members in good stand- ing; and those who are not members on the effective date of this Agreement shall, on or after the thirty-first (31st) day fol- lowing the effective date of this Agreement, become and re- main members in good standing of the Union. Section 15 of the UWRU Agreement states: For the purpose of Section 2 of this Agreement, members in good standing are those members who tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. Upon receipt of written notice from the Union of the failure on the part of the em- ployee to complete membership in the Union or tender dues to the Union, the Employer shall within seven (7) days of such notice discharge said employee. The General Counsel makes no contention that the wording of section 2(a) fails to conform to statutory requirements. Accord- ingly, although the wording is arguably confusing or ambigu- ous in one or more respects not pertinent to the violations al- leged in this case,227 I will assume for all further purposes that the union-security clause does conform to statutory require- ments. As previously noted, the General Counsel makes a number of attacks, none having to do with the particular wording of the union-security clause, but rather, with its very “maintenance” by Raley’s and UWRU, and with certain “enforcement” actions taken by one or both of those parties during the period March 2, 1994, through March 13, 1995. (The complaint does not allege 227 It is probable from the surrounding context that the word not was originally intended to appear (and probably did appear in some early incarnation of the IDCA contract) preceding the first appearance in the above-quoted clause of the phrase members in good standing. The only other arguable ambiguity has to do with whether the clause does or does not allow a full 30 days before an employee is required to become and remain a “member in good standing.” (The clause refers to “on or after the . . . 31st day following the effective date of this Agreement. Because the “effective date” of the Agreement was a retroactive one, it is probable that any attempt to enforce the clause on the “31st day following the effective [retroactive] date” would have been unlawful because it would not have allowed employees the 30 days “grace pe- riod” contemplated by the proviso to Sec. 8(a)(3). However, the clause states “on or after,” thus allowing a perhaps indefinite grace period.) Again, I note that the General Counsel makes no attack on the particu- lar wording of the clause. I note also that there is no evidence of any attempt by UWRU even to “impliedly threaten” to enforce the clause at any point before March 2, 1994, by which point any such arguable ambiguity had become an essentially moot issue. RALEY’S 541 any violations after March 13, 1995.) As I amplify below, the “enforcement” letters which variously contain the proof relied on by the General Counsel for one or more of the “enforce- ment” contentions were written in a variety of contexts. How- ever, separating out for the moment the question whether the delinquency surcharge was one that UWRU could lawfully seek to collect by invoking discharge rights under the union- security clause, these letters otherwise involved what I will call “routine” enforcement measures; that is, they involved the rou- tine exercise of statutory rights possessed by a lawfully- recognized union, operating under a lawful union-security agreement, to require employees covered by the agreement, as a condition of their employment, to pay to the union the “periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership” in the union. During the March 1994–March 1995 period in question, UWRU’s constitution and bylaws(GC Exh. 83) provided in pertinent part as follows: Section 4. Dues and Revenue 1. The income of this union shall be from dues, initia- tion fees, reinstatement fees, interest, and miscellaneous receipts. 2. Dues shall be uniformly required of all members and all individuals subject to a union security clause in a collective bargaining agreement covering their employ- ment. 3. The monthly dues shall be in the amount of $12.00 per month payable in advance at the union’s designated of- fice on the first of each month. [. . .] 4. All individuals who become members of the union on or after November 19, 1993, or who, on or after that date, become subject to a union security agreement . . . shall be required to pay an initiation fee of $30. [. . .] 5. Any individual who fails to tender to the union within 10 days of the due date any dues owed to the union shall be automatically suspended from the union. A sus- pended individual will be reinstated upon the payment of a fee of $5.00 for each month said individual’s dues are in arrears. The exhibit record, plus Wright’s testimony concerning these matters (on March 21, 1997), clearly indicate that, by March 1994, UWRU was experiencing significant difficulties in get- ting some drug clerks to pay initiation fees and/or monthly dues, and that UWRU’s leaders were under considerable pres- sure from dues-paying members to take action against the de- linquents. As a consequence, in letters to employees in March through May (see GC Exhs. 85 through 87), UWRU reminded employees of their union-security obligations and their vulner- ability to discharge for nonpayment of the $30-initiation fees and the $12-monthly dues. In some of these letters UWRU also made reference to the $5-per-month delinquency surcharge, calling it a “late fee.” However, between March and August, UWRU also continued to grant unilateral extensions of the grace period for receiving payment of initiation fees or monthly dues delinquencies accrued to date. And it further announced in these letters that it was waiving any delinquency surcharges which had accrued in the meantime, provided the basic initia- tion fee and/or accrued monthly dues owed were paid before the extended deadline. What seemed on its face to be the ultimate letter in this series (GC Exh. 87 is a specimen) turned out to be the penultimate one. It was signed by Wright and mailed on May 30, 1994, to all employees who were not then current on their dues obliga- tion. In material part, Wright stated as follows in this letter (emphasis in original): The decision was made at the 22 May 1994 member- ship meeting of the UWRU to offer a grace period of up to three (3) months, in which employees that are delinquent with their dues may get caught up by tendering three (3) equal monthly payments along with the current months’$12.00 dues. . . . . This is the last special payment schedule we will make! Your payments MUST start in June. If you have already paid your back dues, please remit only the $12.00. If pay- ment is not received by 10 June 1994, the UWRU reserves the right to enforce all of its contractual rights, including the assessment of late fees and termination for non- payment of dues. In fact, UWRU extended the grace period beyond “10 June 1994,” ultimately to August 24, 1994. Thus, on August 17, 1994, Wright signed and mailed a number of form letters to certain still-delinquent employees (GC Exh. 89), the first letters in which he made express threats to invoke discharge rights for any further noncompliance. In these letters he stated in perti- nent part: You have been notified time and again of your delin- quent status. By refusing to meet you[r] dues obligation, you have left us no choice but to request, pursuant to Sec- tions 2(a) and 15 of the . . . agreement . . . that Raley’s terminate your employment within seven (7) days of this notice. The only way for you to avoid termination is to remit the full amount due, by check or money order made pay- able to the UWRU . . . no later than 8/24/94. Failure to do so will result in your termination. The amount due is now $183 (9 mos. x $12/mo. dues PLUS $30 initiation fee PLUS 9 mos. x $5/mo. late fee). Wright sent copies of this form letter to Raley’s the same day, in care of Abfalter, as part of a multipage fax transmission (GC Exh. 91) which included a cover letter requesting that Raley’s discharge the dues-delinquent employees listed on an attach- ment. Under section 15 of the UWRU agreement, this letter required Raley’s to act on the discharge request “within seven days,” thus conforming to the “seven-day” ultimatum contained in Wright’s simultaneously-mailed letters to delinquent em- ployees. On August 19, Abfalter himself mailed letters to the same listed employees (GC Exh. 92), warning them that “Raley’s will be forced to take action,” absent “compliance” by “no later than August 24, 1994.” (In fact, no employees were ever discharged for dues delinquency, but it is unclear whether this was because they eventually complied, or because UWRU once again relented.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542 On August 31, 1994, Wright sent another form letter to “less than a half-dozen” employees. (GC Exh. 93 is a specimen) who had “recently” tendered accrued dues and an initiation fee, but who had not tendered the $45 amount (“9 mos. x $5/mo.”) identified in his August 17 letter, supra, as the accrued “late fee.” It was in these August 31 letters that Wright first referred to the accrued $45 amount as a “reinstatement fee,” a term that he thereafter adopted in other letters sent in later months to delinquent employees. (The only other such letters in evidence are GC Exhs. 94(a) and (b), separate letters addressed to two different employees, both dated March 13, 1995.) E. Analysis and Conclusions 1. Introduction The ultimate question here is whether UWRU’s delinquency surcharge, i.e., its “reinstatement fee,” does or does not qualify as “periodic dues . . . uniformly required as a condition of ac- quiring or retaining membership.” It is settled that when a un- ion imposes on employee-members any “fines” or “penalties” or “assessments” “other than the periodic dues and initiation fees uniformly required,” any such other charge, “even if levied legitimately, must be collected without impact on employment rights or tenure.” Operating Engineers Local 542C (Ransome Lift), 303 NLRB 1001, 1003 (1991), citing Associated Fur Mfrs., 280 NLRB 922 (1986). How can you tell in the case of a disputed levy whether it be- longs in the pigeonhole for “periodic dues” rather than the slot for “assessments?” The answer to this taxonomic question is fairly simple when the levy is clearly a “one-time,” or “tempo- rary” charge, for such levies necessarily lack the threshold statutory requirement of “periodicity,” and they are, therefore. mere “assessments.”228 Indeed, in such cases, it doesn’t matter whether the union (or the General Counsel) prefers to call the disputed amounts “dues,” “assessments,” or something else; the important disqualifying feature is that such levies do not call for “periodic” payment. As I discuss below, however, the an- swer is less easy to discern from the cases when the disputed levy amounts to something other than a “one-time” or “tempo- rary” charge. And the caselaw is particularly murky when it comes to whether, or under what circumstances, a union’s dues structure may lawfully incorporate provisions which amount either to “discounts,” on the one hand (i.e., financial induce- ments or incentives to its members to make timely tenders of dues and initiation fees), or surcharges for delinquency on the other hand (i.e., charges which serve the same function as “dis- counts” for timely payment, but which are also just as easily understood as disincentives to delinquency, just as “discounts” for timely payment themselves may be seen as serving such a disincentive function). The answer to such questions may depend on which cases you read. Indeed, as the Ninth Circuit observed, describing a 228 See, e.g., Green Team of San Jose, supra, 320 NLRB at 1005 (one-time death and illness assessment); Teamsters Local 439 (Shippers Imperial), 281 NLRB 255, 258 (1986) (one-time charge for union building fund); Plumbers Local 81 (Morrison Construction Co.), 237 NLRB 207, 210 (1978) (one-time levy for “emergency” needs in an- ticipated strike). different area of law, “[t]here is more than enough scripture upon the subject to enable any devil to cite some of it for his purpose.”229 However, in the end I will agree with UWRU’s argument that the $5-per-month reinstatement surcharges were at all material times an integral and “uniform” part of UWRU’s periodic dues “structure,” and that their function, as distin- guished from their form, was no different from that served by certain dues-“discount” programs which have passed Board muster against attacks by the General Counsel similar to those made in this case. Thus, in agreement with UWRU, I will rea- son that both dues-discount programs and delinquency sur- charge programs commonly serve a twofold function, both as an incentive to timely payment and as a disincentive to delin- quency; and that both kinds of programs are aimed at achieving the same underlying goal—timely payment of financial-core obligations, thereby avoiding the predictable costs, expenses or other losses incurred or suffered by a union in trying to collect on delinquent accounts and in trying to maintain itself as a vi- able collective-bargaining representative in the meantime. I will further agree with UWRU that, in such circumstances, it is unhelpful to rely on the arguably sterile or circular taxonomic distinctions that seem to have informed at least some of the earlier Board holdings in this area, i.e., the cases on which the Office of the General Counsel relied in authorizing a complaint based on the alternative theory now under discussion.230 Rather, in agreement with UWRU, and the cases it cites, I will judge that it was the General Counsel’s burden in these circumstances to demonstrate that the delinquency surcharges were not “rea- sonably related” to the costs or other losses incurred or suffered by UWRU trying to operate in the face of dues or initiation fee delinquencies. I will further agree that the General Counsel failed to make any such demonstration, and, therefore, that the alternative theory here in question must also be dismissed. 2. Analysis of the General Counsel’s contentions The General Counsel’s central legal contention as expressed on brief (p.385) is this: “[A] union may not lawfully collect under a union-security clause union fines [or] penalties im- posed for dues delinquency.” Of course, by equating in this legal statement any union levy linked to dues delinquency with “union fines or penalties,” the General Counsel has already made a taxonomic classification which effectively determines the legal outcome, and, to that extent, begs the question at issue in this case. The General Counsel “urges” that I embrace and apply these conclusionary characterizations to UWRU’s rein- statement fee, i.e., that I “find that that the $5.00 per month amount was not a lawful ‘reinstatement fee’ but rather a fine or penalty that the parties attempted to unlawfully collect under the union security clauses [sic].” Moreover, the General Coun- sel, with little further explication, simply declares that the de- 229 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 469 (9th Cir. 1966), acknowledging Shakespeare’s contribution. 230 In colloquy of record on March 21, 1997, counsel for the General Counsel stated that the theory of prosecution under discussion was authorized by the General Counsel’s Advice Branch. And the same cases she cited then (A&P and National Biscuit, infra) and the summary arguments she made during this colloquy are cited and repeated in equally summary form in her brief, in some cases almost verbatim. RALEY’S 543 linquency surcharge was a “fine or penalty” (or “assessment”), and thus, it had to be something other than “periodic dues . . . uniformly required” to acquire or retain UWRU membership. And in this regard, the General Counsel finds it especially sig- nificant that UWRU, in certain “collection” letters to certain employees, originally referred to the surcharge as a “late fee,” before eventually (on and after August 31, 1994) calling it a “reinstatement fee.” In sum, the General Counsel, having thus classified the amount in question as conceptually no different from, say, a union “fine or penalty” against a member for fail- ing to observe a union rule against working behind a picket line, or, say, a union “assessment” to cover the costs of the annual Christmas party at the union hall, necessarily concludes that the delinquency surcharge was not part of the dues or ini- tiation fees “uniformly required” by UWRU as a condition of an employee’s acquiring and retaining membership in good standing. As support for the assertion that “a union may not lawfully collect under a union-security clause union fines [or] penalties imposed for dues delinquency,” the General Counsel cites two cases, Great Atlantic & Pacific Tea Co., 110 NLRB 918 (1954), and Bakery & Confectionery Workers Local 12 (Na- tional Biscuit Co.), 115 NLRB 1542 (1956). (In citing the Board’s decision in National Biscuit, the General Counsel ne- glected to note that the Third Circuit, in NLRB v. Bakery and Confectionery Workers Local 12, 245 F.2d 211 (1957), denied enforcement of the Board’s order based on its rejection of the Board’s rationale.) As noted below, these cases might at first glance provide superficial support for the General Counsel’s central contention, but on closer scrutiny, they really don’t provide any support for it at all. Instead, these cases seem to turn on facts that are materially distinguishable from the facts in this case. Moreover, to the extent certain of their rationales might appear to apply even to the facts herein, those rationales seem to have been effectively discarded, if not renounced, in subsequent Board decisions. In the A&P case cited by the General Counsel as primary au- thority, the Board was confronted with a union’s imposition of what the union called a “$1 assess[ment]” for dues delin- quency, and with the union’s threat to invoke union-security rights to collect such a delinquency surcharge.231 There, the trial examiner (now called administrative law judge) had rec- ommended dismissal of the complaint insofar as it had alleged that the union violated Section 8(b)(1)(A) by invoking union- security rights to collect the delinquency surcharge. However, the Board disagreed and found an 8(b)(1)(A) violation, stating in its brief discussion and holding as follows (110 NLRB at 922): . . . the Union clearly made the payment of assessments, im- posed as a penalty for dues delinquency, a condition of con- tinued employment. The Board, with court approval, has held 231 The focus of the Board’s concern was a union notice which stated in material part: “Dues that are not paid in the current month will be assessed one dollar ($1.00) and any member owing two months dues must pay all dues and assessment on the 15th day of the second month. . . . Failure to pay all dues and assessment on or before the 15th day of the second month will result in being removed from the job.” in a number of cases [footnote citations omitted] that assess- ments and fines imposed for various reasons are not "periodic dues" within the meaning of the Act and that their imposition restrains and coerces employees in violation of Section 8(b)(1)(A) of the Act. We do not agree with the Trial Exam- iner’s reasoning, which he based on analogies to the penalties imposed by utilities for nonpayment of bills and to discounts allowed by commercial establishments for the prepayment of bills, that fines for dues delinquency are “part of the dues structure” and as such are “periodic dues” within the meaning of the Act. Such fines are intermittently imposed and by their very nature not “periodic.” Their primary purpose is not to create revenue, but to provide punishment for nonpayment of dues on time. Accordingly, we find that, by unlawfully condi- tioning employment on the payment of assessments, the Un- ion restrained and coerced employees in violation of Section 8(b)(1)(A) of the Act. It is apparent that the A&P Board’s rationale relies, at bottom on a series of conclusionary characterizations and comparisons. The Board started by summarily equating the $1-delinquency surcharge in that case with an “intermittently imposed” union “fine” or “punishment,” moreover, one which “by [its] very nature” was “not periodic” (which is, of course, generally true of union “fines” and “penalties” for particular forms of mem- bership misconduct). Then, having thus summarily defined the character of the $1 amount, the Board had little difficulty merging it into the general category of “assessments and fines imposed for various reasons,” i.e., those which, by definition, do not qualify for inclusion in the “periodic dues” category. However, it is apparent that in defining the surcharge as no different from any other “assessments and fines imposed for various purposes,” the Board construed the delinquency sur- charge as an ad hoc fee, and relied for this construction on the union’s own description of the surcharge as an “assessment.” (As discussed further below, such a limiting interpretation of the A&P decision became the Board’s stated rationale in Ma- chinists Lodge 1345 (Coback Tool), 157 NLRB 1020 (1966), for “distinguishing” that case from both the A&P case and the National Biscuit case.) In the other case relied on by the General Counsel, National Biscuit, the Board to some extent relied on its prior reasoning in A&P, but to a greater extent shifted ground, in order to deal with a new development. Thus, in reaction to the Board’s A&P ruling, the same union-respondent had, in the meantime, “amended its bylaws by increasing its dues in the amount of $1, at the same time allowing a ‘discount’ in precisely this amount for payment of the dues during the month for which they are due.” 115 NLRB at 1542. And the Board, having already de- fined the $1 amount in A&P as an “assessment” no different in legal character from a union “fine” or “penalty” for miscon- duct, was apparently unpersuaded by the union’s new attempt, by way of amending its bylaws, to call this rose by any other name. Thus, the Board said (115 NLRB at 1542–1543): It is clear that the Respondent’s revised dues practice had pre- cisely the same effect, insofar as the amounts involved were concerned, as the earlier practice which the Board found to be violative of the Act, i. e., an increase of $1 in the amount pay- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544 able was made dependent on whether dues were paid before or after the end of the current month. Although termed a "dis- count," this difference in amount is unlike the relatively small discounts for early payments which prevail in the business world, for here the additional sum amounts to 33-1/3 percent, a sum which does not appear to bear any probable relationship to additional billing or bookkeeping costs which might have to be borne by the Respondent. Nor did the Respondent show that by increasing its dues it was seeking any additional reve- nue. In view of all the circumstances, we find, as did the Trial Examiner, that the Respondent’s revised dues practice contin- ued in effect the former practice of imposing an assessment or fine for failure to pay dues which had become delinquent, and that the Respondent thereby restrained and coerced employees in violation of Section 8(b)(1)(A) of the Act. As I have suggested, in National Biscuit, the Board now fo- cused very little, if at all, on the character of the purported $1 “discount” as an “assessment” (which, like fines, penalties, and other ad hoc levies, are, “by their very nature not ‘periodic’”). And it apparently did so because, once the union had changed its bylaws to incorporate the discount into its permanent dues structure, it became more difficult to insist that such a discount was “intermittently imposed,” or that it otherwise lacked the statutorily-required “periodicity.” Rather, the Board now fo- cused principally on the amount of the purported discount it- self, stressing (as it never had in A&P) that the “additional sum” differed from the basic dues amount by “33-1/3 percent.” And, by thus focusing on the percentage difference between the two amounts, the Board was now able to find that a one-third discount was “unlike the relatively small discounts for early payments which prevail in the business world[.]” Moreover, the Board found it significant that the one-third “sum” did “not appear to bear any probable relationship to additional billing or bookkeeping costs which might have to be borne by the Re- spondent. Nor did the Respondent show that by increasing its dues it was seeking any additional revenue.” The Board’s latter observation, that the union had made no “showing” that it was “seeking additional revenue” through the $1 dues-“increase,” cannot as easily be said to be true in this case: UWRU’s by-laws stipulated that “[t]he income of this union shall be from dues, initiation fees, reinstatement fees, interest, and miscellaneous receipts.” Clearly both the delin- quency surcharge for reinstatement and the “interest” that would accrue to UWRU from timely payment of financial-core membership obligations had always been defined by UWRU as part of the “revenue” it relied on to meet ongoing expenses of operation, including, necessarily, the costs of collecting on delinquent accounts. Accordingly, apart from the enforcement fate of National Biscuit, discussed next, and my further analy- ses of subsequent Board holdings, I find that at least one of the interweaving rationales proffered in National Biscuit has no apparent application to the facts in this case. I have already noted that, when the Board petitioned for en- forcement of its order in National Biscuit, the Third Circuit denied enforcement, and, in the process, disagreed rather fun- damentally with the Board’s key characterizations of and rea- soning concerning the “discount plan” at issue. Thus, the circuit court stated in material part (245 F.2d at 212; emphasis added): Can the respondent union’s discount plan, which on its face contemplates merely the payment of periodic dues uniformly required, be reasonably interpreted to impose a fine or as- sessment? We think not. What the union has done is simply to make the amount of dues contingent upon the date of pay- ment. Members may pay before the last day of the month and take advantage of a one-dollar discount. They may exercise their option to pay within the next fifteen days at the full amount. The plan affects every member of the union, and the option comes into play every month. There is no question that a union may lawfully increase its monthly dues by one dollar. The majority of the Board concluded, however, that the extra dollar was an assessment because the respondent did not at- tempt to justify the increase as a revenue-producing measure. We think this was placing an improper burden upon respon- dent, for by increasing its dues it was merely exercising the right expressly given to it under the Act of prescribing its own rules concerning the acquisition or retention of its member- ship. 29 U.S.C.A. [§] 158(b)(1)(A). At all times the burden was upon the Board to show that the increase did not repre- sent dues. A review of the entire record finds it barren of evi- dence to support this burden. In fact, the record contains af- firmative evidence that respondent’s discount procedure was intended not as a punishment, but rather as a real inducement and reward for the prompt payment of monthly dues. The Board seems to have taken these criticisms to heart, par- ticularly the Third Circuit’s comments with respect to who has which “burdens” when the issue turns on “dues vs. assessment” distinctions. Thus, in a decision 3 years’ later in another dues- discount case, Teamsters Local 959 (RCA Service Co.), 167 NLRB 1042 (1960), the Board held that “the record is insuffi- cient to support a finding that the discount granted for the prompt payment of dues does not bear a reasonable relation- ship to the additional cost of collecting delinquent accounts.” Id. at 1044; emphasis added. And the Board noted further that the discount amount there in question (approximately $5 per month) “is not so unreasonable as to be patently an assess- ment.” Id. Indeed, the Board squarely placed on the General Counsel the “burden of demonstrating” to the contrary, and found that the General Counsel had not sustained this burden. Id. Subsequent Board cases have even further tended to mini- mize the precedential value of the Board’s decisions in A&P and National Biscuit, the cases on which the General Counsel relies in this prosecution. Thus, in 1966, the Board was again confronted with a dues-“discount” case in Coback Tool, supra. But this time, unlike in National Biscuit, the case was unen- cumbered by any prior history in which the union had origi- nally imposed the amount in question as a self-labeled delin- quency “assessment,” before later inverting it and relabeling it as a “discount” for timely payment. And in this new case, the Board reached a significantly different result from the one reached either in A&P or in National Biscuit. Moreover, in Coback, the Board relied on reasoning that to a considerable degree contradicted at least some of the reasoning that had RALEY’S 545 animated its decisions in both National Biscuit and A&P. Thus, the Coback Board adopted without comment the decision of the trial examiner, who found and held in material part as follows (157 NLRB at 1022–1023): The Union’s bylaws provide that monthly dues shall be $4.25 but further provide that "If monthly dues are paid in the cur- rent month, or in advance, each such dues shall be discounted 25 cents for prompt payment." The bylaws also provide that any member failing to pay his dues for 3 consecutive months shall be dropped from membership. Whether or not Black was 3 months delinquent in the payment of his dues when he was dropped from membership and discharged depends upon whether the sum of 25 cents provided by the Union’s bylaws as a discount for the prompt payment of dues is to be treated as a part of the dues regularly and uniformly required, as the Union contends, or as a “fine” for the late payment of dues, as the General Counsel contends. In the circumstances of this case, I find no basis for concluding that the periodic dues uni- formly required were other than those provided in the Union’s bylaws, $4.25 a month. The fact that the Union saw fit to en- courage the prompt payment of these dues by providing for a discount of 25 cents to those paying promptly does not, in my view, warrant a finding that the dues were not what the by- laws said they should be. The Board’s decision in Bakery Workers’ Local 12, AFL–CIO (National Biscuit Co.), 115 NLRB 1542, enforcement denied, 245 F.2d 211 (C.A. 3), which the General Counsel relied upon in support of his posi- tion may be distinguished from the instant case. That case was preceded by The Great Atlantic & Pacific Tea Company (Pittsburgh Bakery), 110 NLRB 918, in which the Board found that the same union which was later a respondent in the Bakery case had caused the employer unlawfully to discharge an employee for failing to pay a $1 "assessment" for the late payment of dues. The Union, prior to the Bakery case deci- sion, had amended its bylaws to increase the dues by $1 and to provide for a $1 discount for the prompt payment of dues. In these circumstances, the Board concluded that the $1 was not merely a discount similar to those frequently allowed in commercial transactions but was still an assessment or pen- alty. There is no evidence in the instant case that the Union had ever considered as an assessment or penalty the modest sum which its bylaws provided should be “discounted” for the prompt payment of dues. As indicated by the Union’s secre- tary-treasurer, George Wyland, the sum of 25 cents has a rea- sonable relationship to the cost of servicing delinquent dues payments. The discount here involved is in its nature not unlike the relatively small discounts which prevail in the business world for early payment of taxes, utility bills, or other obligations. It would hardly be argued that those dis- counts so commonly given in the business world are penalties rather than parts of the basic obligation discounted. Similarly, the small discount provided in the Union’s bylaws in this case for the prompt payment of dues must fairly be viewed as what it purports to be, a part of the basic dues—not an assessment or penalty for late payments. The Board’s basis in Coback for “distinguishing” that case from both the A&P decision and the “Bakery case” (National Biscuit) decision seems to have rested on two key points: First, the dues-discount in Coback was not seen as an inverted kind of ad hoc “assessment,” or “penalty” for dues delinquency, but rather as a dues-related fee built-into the union’s bylaws, and one which therefore must “fairly be viewed as . . . a part of the basic dues.” Second, there was “no evidence [in Coback] that the Union . . . had ever considered [the dues-discount] as an assessment or penalty.” Whether such distinctions can really explain the difference between the Coback result and the results of the prior cases being distinguished is for legal scholars to debate. What seems clear in any case is that, in Coback, the Board adopted a view concerning “dues-discount” programs (at least those incorporated into a union’s bylaws and labeled as “discounts”), according to which the discounts were now seen as properly “analogous” (despite A&P’s rejection of precisely such “analogies”) to the “relatively small discounts which pre- vail in the business world for early payment of taxes, utility bills, or other obligations.” Even before reviewing other authorities and their implica- tions for this prosecution, it’s worth pausing to note again how far the facts of this case differ from those in the A&P and Na- tional Biscuit cases on which the General Counsel relies, and how closely the facts in this case approach the facts in Coback: Here, the delinquency surcharge amount in question (although identified by UWRU as a condition of “reinstatement” to mem- bership in good standing, and thus not self-defined as a “dis- count” for prompt payment) cannot be attacked as an ad hoc “assessment” by UWRU. Thus, the delinquency surcharge was incorporated into UWRU’s bylaws as an ongoing “part” of UWRU’s “basic dues structure,” i.e., as a condition of rein- statement to membership in good standing where the “good standing” was lost in the first instance as a consequence of an employee’s dues delinquency. Thus, without regard to whether or not some of the rationales employed in A&P and National Biscuit have been effectively overruled by subsequent cases, it is already apparent that, in this case, the General Counsel is on the shakiest of ground in attempting to characterize the delin- quency surcharge as no different from a “union fine or penalty” for breaching a union rule that is unrelated to the “basic dues” obligation. Moreover, here, unlike in A&P and National Bis- cuit, there is no claim by the General Counsel that the amount of the surcharge is somehow independently “excessive” or “un- reasonable” in terms of any “relationship “ it might bear to the costs expended or incurred by UWRU in seeking to collect “basic dues” from those who persist in refusing to pay them on time.232 Accordingly, in the absence of any such attack, here, just as in the Coback dues-discount context, “it [c]ould hardly be argued that those [delinquency surcharges] so commonly 232 Although it is not a dispositive point, UWRU correctly notes on brief that the General Counsel did not allege violations under Sec. 8(b)(5), which bars unions from “requir[ing] of employees [under a union-security agreement] the payment . . . as a condition precedent to becoming a member . . . of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances.” More impor- tant, I think, is that the General Counsel has not even claimed, much less tried to prove, that UWRU’s delinquency-linked reinstatement fee “did not bear a reasonable relationship to the additional cost of collect- ing delinquent accounts.” RCA Service Co., supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546 [imposed] in the business world are penalties rather than parts of the basic obligation[.]” Let us now consider another aspect of the General Counsel’s interweaving attack on UWRU’s delinquency surcharge, that because the surcharge “varied” according to the length of the delinquency, it was not “uniformly required” by UWRU “as a condition of acquiring or retaining membership.” In this regard, the General Counsel argues on brief (p. 386; emphasis added): “Moreover, unlike the typical[,] ‘fixed’ reinstatement fee, the instant fee varies in amount depending upon how far in delin- quency the employees’ dues have fallen, much like a fine or penalty would vary to match the misconduct being punished.” I don’t know where the General Counsel got the idea that “the typical reinstatement fee” charged by unions is a “fixed” one. This is certainly not a noticeable fact, and it contradicts my own experience. Moreover, it is not at all obvious that Con- gress, in using the expression “periodic dues and the initiation fees uniformly required,” was making reference only to some imagined “typical” union practice prevailing in or before 1947, when this language was first engrafted onto the Act by the Taft- Hartley amendments. Still less is it obvious that the Board, in construing the Congressional expression and applying it to the subject of reinstatement fees, has been driven by some imag- ined paradigm according to which unions “typically” charge only a “fixed” amount as a reinstatement fee. Accordingly, I treat the assertion that “typical” reinstatement fees are for “fixed” amounts as mere makeweight, utterly useless as support for the General Counsel’s attempt to claim that UWRU’s rein- statement fee was “much like a union fine or penalty.” Rather, the General Counsel is again simply begging the question and engaging in bootstrapping in attempting to analogize a “vari- able” reinstatement fee to a “fine or penalty” for other member- ship “misconduct.” That notion finds no support even in A&P or National Biscuit, much less in the more recent authorities cited above and below. More important still, “variability” in a union’s dues structure is not inherently unlawful, much less does such variability automatically disqualify a disputed amount for inclusion in the category of “the periodic dues and the initiation fees uniformly required as a condition of acquir- ing or retaining membership.” In fact, “the Board has construed Section 8(a)(3) and 8(b)(2) of the Act to permit a labor organi- zation holding a union-security agreement to charge, as a con- dition of acquiring or retaining membership, different initiation fees and periodic dues provided they are based on a reasonable classification[.]” Food Machinery & Chemical Corp., 99 NLRB 1430, 1433 (1952), and authority cited. Indeed, “[o]n several occasions the Board has sanctioned a variable dues formula as legitimately within the meaning of periodic dues.” Pacific Northwest Newspaper Guild v. NLRB, 877 F.2d 998, 1001 (D.C. Cir. 1989), and authority cited. The General Coun- sel does not argue that an “unreasonable classification” is in- volved when a union charges a reinstatement fee which “var- ies” according to the length of the would-be reinstatee’s dues delinquency. Indeed, considering that the hardship suffered by a union when an employee doesn’t pay dues on time itself “var- ies” according to the length of the employee’s delinquency, it’s hard to imagine a more “reasonable” basis for the “variance” on which the General Counsel seizes in the above-quoted passages of the prosecution brief. It may be a sufficient rebuttal to the General Counsel’s dubi- ous suppositions and claims linked to the “variable” nature of the delinquency surcharge to cite the Board’s 1976 decision in Ramey Supermarkets,233 where the Board expressly affirmed, inter alia, the portion of the administrative law judge’s decision that is relevant to this case. Thus, as found by the administra- tive law judge and affirmed by the Board, the union’s bylaws required employees who had lost membership in good standing for being more than three months delinquent in their dues to pay a $50-“reinstatement fee.” To that extent, the reinstatement fee was both a delinquency surcharge and one expressly linked to the duration of the employees’ prior delinquency, just as was UWRU’s reinstatement fee at material times. Similarly, the reinstatement fee in Ramey was “variable.” That is, it was not “uniformly required” of every delinquent employee seeking to regain membership in good standing; it was only required of those employees whose delinquency continued after the expira- tion of a “grace period.” And again, in that sense (a trivial sense, I think), both the reinstatement fee in Ramey and the reinstatement fee in this case was “variable.” Moreover, in Ramey, Schudy, the employee whose discharge was sought by the union under the union-security clause, had already paid the same amount charged as a reinstatement fee when he was first initiated into the union. And the administrative law judge thus recognized that the same fee reimposed as a condition of rein- statement could be construed as an “additional penalty” (226 NLRB at 90–91), just as the General Counsel has construed UWRU’s reinstatement fee in this case. “Nevertheless,” said the judge in Ramey, . . . the $50 fee which the Union here demanded of Schudy is one which it seems to uniformly require of employees who are 3 months’ delinquent in dues payments. To excuse Schudy from paying the fee would only discriminate in his favor because he does not choose to become a member of the Union. Under the circumstances, I find that the Union did not violate Section 8(b)(2) of the Act by seeking, in part, to have Schudy discharged because he had not paid the required reini- tiation fee[.] Here, too, UWRU’s reinstatement fee, although necessarily varying according to the length of delinquency, was “uni- formly” required” of all similarly-situated delinquents. Let us finally examine claims by the General Counsel which emphasize matters of self-labeling by UWRU: The General Counsel finds it significant that UWRU referred in some of its pre-August 31, 1994 collection letters, supra, to the delin- quency surcharge for reinstatement as a “late fee.” Apparently, the General Counsel sees in this usage an “admission” that what UWRU had identified in its bylaws as a “reinstatement fee” was, in reality, an “assessment,” and, therefore, not “peri- odic dues,” and, therefore, not lawfully collectable under the union-security clause. But this kind of label-driven reasoning (“late fee”–“assessment”–“bad”) is not just painfully simplistic, 233 Retail Clerks Local 322 (Ramey Supermarkets), 226 NLRB 80 (1976). RALEY’S 547 it implies that a union, merely by using the “right” label for a disputed levy, could effectively control the legal outcome of a case which turns on whether or not the disputed levy qualifies as “periodic dues” within the contemplation of Section 8(a)(3) and 8(b)(2). While such an approach may have influenced the rationale in A&P, it has been correctly criticized in more recent Board and appellate court decisions. See, e.g., RCA Service Co., supra, 167 NLRB at 1044 ( “[A union’s] [s]aying so [in Anaconda] did not make an ‘assessment’ ‘dues,’ nor, con- versely, should [a union’s] saying so make ‘periodic dues’ an ‘assessment’.”) See also the D.C. Circuit’s critical remarks in Pacific Northwest Newspaper Guild, supra, 877 F.2d at 999, and fn. 2, about the Board’s tendency on occasion to place reli- ance on the “fortuities” of the “terminology” a union uses to describe a disputed levy. See also NLRB v. Bakery & Confec- tionery Workers Local 12, supra. In considering and rejecting the General Counsel’s argu- ments for claiming that the delinquency surcharge imposed by UWRU as a reinstatement fee was an “assessment,” I have also been influenced by the distinctions between “dues” and “as- sessments” originally posited by the Third Circuit in NLRB v. Food Fair Stores, 307 F.2d 3, 11 (1962), distinctions which the Board expressly adopted in RCA Service Co., supra (167 NLRB at 1045), as follows (emphasis added): It is clear that the term “periodic dues” in the usual and ordi- nary sense means the regular payments imposed for the bene- fits to be derived from membership to be made at fixed inter- vals for the maintenance of the organization. An assessment, on the other hand, is a charge levied on each member in the nature of a tax or some other burden for a special purpose, not having the character of being susceptible of anticipation as a regularly recurring obligation as in the case of “periodic dues.” These distinctions may themselves be vulnerable to attack as involving a certain definitional circularity—and also, perhaps, a certain naïve optimism in supposing that periodic dues has a “usual and ordinary” meaning among either labor lawyers or employers or unions who must try to conform their behavior to statutory requirements. Nevertheless, the Board embraced the Third Circuit’s distinctions in Teamsters Local 695, supra, and, therefore, these distinctions, especially the court’s definition of “assessments,” must inform my analysis here. It seems nearly impossible to plausibly maintain in this case that UWRU’s delinquency surcharge for reinstatement, i.e., its “reinstatement fee” at material times, would qualify as an “assessment” as defined in Food Fair, i.e., as a “tax or other burden for a special purpose, not having the character of being susceptible of an- ticipation as a regularly recurring obligation[.]” On the con- trary, the delinquency surcharge was spelled-out in UWRU’s bylaws in explicit terms as a fee that employees could “antici- pate” they would be charged by UWRU as a “regularly recur- ring obligation” of regaining membership in the event of any dues-delinquency beyond the bylaw-specified grace period. In short, the delinquency surcharge was integral to, and essentially inseparable from, UWRU’s “basic dues structure,” i.e., the uniform structure maintained by UWRU for defining how an employee covered by the union-security clause acquires (or, in this case “retains,” or “reacquires”) the status of “member-in- good-standing.” In sum, blending all of the foregoing reasoning, I judge that here, as in many other instances in the prosecution of this case as a whole, the General Counsel has relied too much on word- play and on dubious interpretations of certain caselaw, and has paid too little attention to the burden under which the prosecu- tor in a Board proceeding must always labor, proof by a pre- ponderance that a respondent has engaged in conduct which violates the Act in the ways alleged by the prosecutor. Here, to successfully attack UWRU’s delinquency surcharge for rein- statement as akin to an “assessment” (or “fine or penalty”) not lawfully collectable under the union-security clause, it was incumbent on the General Counsel to “demonstrate” that the surcharge was not “reasonably related” to the predictable costs and other financial losses suffered by UWRU in trying to col- lect on delinquent accounts and maintain itself in the meantime as a viable collective-bargaining representative. The General Counsel made no such attack in the first instance, and the re- cord does not otherwise preponderate in favor of any such find- ing. Accordingly, having already dismissed all of the complaint counts insofar as they were premised on the supposition that the bargaining relationship (and the union-security clause) was unlawful from the outset, I now dismiss any and all counts which are premised on the more particular notion that UWRU could not lawfully invoke the union-security clause to collect the delinquency surcharge in question. PART NINE: REMEDY DISCUSSION; ORDERS A question is legitimately raised as to the appropriateness of requiring a remedy for the few and isolated violations I have found that Raley’s committed so long ago, under rather differ- ent conditions and circumstances in each instance. However, because the types of violations were not unique to their particu- lar historical setting, and because I cannot dismiss the possibil- ity that they might recur in the current historical setting, I have resolved these doubts in favor of a cease-and-desist order, con- taining terms which I think most appropriately capture the vio- lations found to have occurred, and a notice-posting remedy. However, I have found no merit to the General Counsel’s cen- tral allegation in the case, that the recognition was unlawfully conferred based on a supposedly “tainted” majority-showing; and I have likewise rejected prosecution contentions that it was unlawful for UWRU and Raley’s to have entered into a collec- tive-bargaining agreement containing a union-security clause, and to have maintained and enforced that clause. In these cir- cumstances, a separate question legitimately arises as to the form and content of a notice to employees. Specifically, I won- der whether a conventional form of notice, one which only identifies violations found to have been committed by Raley’s, but fails to mention that UWRU has been found to be the law- fully-recognized exclusive representative of the California drug clerks, might not be either misleading or confusing to the unit employees sought to be educated and reassured about their rights and where they now legally stand on the critical ques- tions of whether or not they have a union, and whether or not they have a lawful and enforceable union contract. I have re- solved these doubts in favor of a notice which tells the drug DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548 clerks a more complete story about the outcome of this case and where it leaves them. Based on the foregoing findings and conclusions, and on the entire record, I issue the following recommended234 ORDER The Respondent, Raley’s, headquartered in Sacramento, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Criticizing, warning, or otherwise disciplining officers of any union representing Raley’s drug clerks for getting too many union calls at work under circumstances where Raley’s has encouraged employees to call their union officers at work with their questions and complaints about what their union is doing. (b) Making critical remarks about employees because they have failed to sign a petition seeking union representation. (c) Telling employees not to wear buttons supporting United Food and Commercial Workers Union Local 588, or any other union. (d) Removing cards, buttons or literature supporting United Food and Commercial Workers Union Local 588, or any other union, from breakroom tables or from bulletin boards in break- rooms. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, remove from its files any reference to the unlawful criticism or warning is- sued by a drug supervisor to Gilbert Eidam, and, within 3 days thereafter, notify Eidam in writing that it has done so and that it will not use the criticism or warning against him in any way. (b) Within 14 days after service by the Region, post at its Drug Centers in California, and at all Grocery stores in Califor- nia where drug clerks are employed on the premises, copies of the attached notice marked “Appendix B.”235 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by Raley’s authorized representative, shall be posted by Raley’s immediately upon receipt, and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Raley’s to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, Raley’s has gone out of business or has closed any facility involved in these proceedings, Raley’s shall duplicate and mail, at its own expense, a copy of the notice to all current employees 234 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 235 If this Order is enforced by a judgment of the 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.” and former employees employed at any time since April 16, 1993. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Raley’s has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. APPENDIX A DIMENSIONS OF UDCEA’S NUMERICAL MAJORITY-SHOWING I. PURPOSE AND SCOPE OF APPENDIX; AGREED-ON BASELINE NUMBERS As discussed in part one of the attached decision, the General Counsel concedes that the UDCEA petitions that were in Raley’s hands when it conferred recognition on the new union contained authentic signatures from a majority of the drug clerks employed in the recognized unit, even as the General Counsel now seeks to define that unit. I have found that the General Counsel’s many allegations of prerecognition miscon- duct by Raley’s were almost entirely without merit. I have found that the two, isolated and minimal-impact violations committed by managers at Placerville (where no one signed a UDCEA petition) and Fair Oaks (ditto—at least, none received by Raley’s) could not have had any impact whatsoever on the decisions of the employees at the other stores who did sign UDCEA petitions. However, in dismissing nearly all of the complaint allega- tions alleging prerecognition misconduct by Raley’s or its agents, I have variously depended on factual and/or legal analy- ses with which a reviewing body might take issue. And in the event I were reversed with respect to one or more such dismiss- als, a more precise calculation of the dimensions of UDCEA’s overall majority could become more important in assessing the impact of any unlawful assistance found to have been commit- ted by Raley’s while UDCEA was securing its majority- showing. Recognizing this, I will dispose in this appendix of “head-count” questions that must be answered before any more precise numerical majority calculation can be made. The an- swers to these questions will, in turn, yield both the denomina- tor (the number of employees in the recognized unit as of Sep- tember 23, 1993) and the numerator (the number of employees in that unit who had objectively expressed their desire by that date to be represented by UDCEA) required for the final calcu- lation of the actual extent of UDCEA’s majority-showing. For purposes of establishing a baseline for further revisions upwards and downwards, I note first that the General Counsel and the respondents have stipulated to the accuracy of a series of demonstrative exhibits (GC Exhs. 179–182) setting forth variously-organized recapitulations of agreed-on facts about which conceded “unit” drug clerks were working where as of September 23, and further identifying those who are conceded by the General Counsel to have signed a UDCEA petition that was in Raley’s hands when recognition was granted. Some of these exhibits also identify with particularity those employees whose “unit” status is in dispute and why they are in dispute. In RALEY’S 549 the aggregate, the exhibits show that the General Counsel and the respondents are in agreement that there were at least 657 (specifically-identified) drug clerks in the recognized unit (as the General Counsel defines it), and that the authentic signa- tures of at least 339 of those same drug clerks appeared on petitions already in Raley’s hands when recognition was con- ferred. Thus, the agreed-on baseline numerator (UDCEA petition signers) and denominator (unit size) yields the fraction 339/657 (or 10 more than a “bare” majority of 329). However, it is ap- parent that the denominator in this baseline fraction can vary considerably, up or down, depending on whether Yreka drug clerks, Elk Grove get-ready employees, and employees in dis- ability/LOA status are or are not properly countable as having been employed in the “unit” covered by Raley’s recognition of UDCEA on September 23. Moreover, as will become more apparent, the numerator in the baseline fraction is likewise subject to variance, depending in part on how some denomina- tor issues are resolved, and depending further on whether cer- tain other signatures or purported signatures are or are not properly countable. II. NUMBER OF EMPLOYEES IN THE RECOGNIZED UNIT (THE DENOMINATOR): A. Overview As I further discuss below, the General Counsel’s “two-unit” claims as they are expressed on brief now include an assertion at considerable variance with the complaint’s description of the “Drug Unit” covered by Raley’s grant of recognition. However, the General Counsel still contends, at bottom, that when Raley’s recognized UDCEA, the recognition was intended to cover a “unit” consisting of all drug clerks working in all Cali- fornia Drug Centers (including the not-yet-open Elk Grove store), but excluding the drug clerks in the Yreka Drug Center. The General Counsel would also count as employees in the recognized unit seven persons who were not working in any Drug Center as of September 23, but were inactive due to vari- ous medical disability problems. Subject to one exception within this latter class, Raley’s and UWRU take positions op- posite to the General Counsel with respect to the unit-inclusion or -exclusion of each of these groupings of employees. The “numbers” involved with respect to each such conten- tion may help to explain why the General Counsel deems such matters important: At the time of recognition, nine drug clerks were employed in the Yreka Drug Center,1 and the GeneraI 1 On brief, counsel for the General Counsel asserts (at p. 363) that there were “11 employees” at Yreka. She does not explain where this number came from, and it appears that she has simply misconstrued the controlling exhibits (GC Exhs. 179–182) which recapitulate, inter alia, the names and numbers of employees whose status is in dispute. Thus, in GC Exh. 182, p. 17 (listing “A”), a total of nine named Yreka em- ployees are identified as employees contended by the General Counsel to be “excluded from [the recognized] unit because Yreka is a separate unit.” See also GC Exh. 180, p. 16, which lists the same nine Yreka employees identified in category “A,” that is, as employees contended by the General Counsel to be “excluded from the [recognized] unit because Yreka is a separate unit.” Accordingly, I will treat the General Counsel’s assertion that there were “11” Yreka employees as simply a Counsel, although seeking to exclude the Yreka workers from the headcount of the recognized unit, concedes that six of them had signed UDCEA petitions that were in Raley’s hands when recognition was conferred. (I will further find, contrary to the General Counsel, that two other Yreka signatures on the same petition are authentic, and, thus, that eight of the nine Yreka drug clerks had designated UDCEA prior to the recognition.2) At Elk Grove, six persons had already been hired by September 23 and were performing various get-ready tasks in anticipation of the store’s opening in late October.3 And all six of these workers were to be employed as drug clerks in the Drug Center once it opened. None of these Elk Grove workers had signed a UDCEA petition before the recognition, and none had then been solicited to do so, even though, on October 15, 3 weeks after UDCEA was recognized, UDCEA secured petition signa- tures from six Elk Grove employees (not quite the same six employed on September 23). Raley’s treated this petition as satisfactory evidence of UDCEA’s majority support, and the parties agreed that the new labor agreement then being negoti- ated would also cover the Elk Grove drug clerks once the store were to open. Finally, there were seven employees (besides Wright) who were not working currently because they were disabled or otherwise medically unfit for any normal work duty, and none of them had signed a UDCEA petition, nor had any of them been solicited to do so. B. Yreka Issue 1. The General Counsel’s contentions The General Counsel asserts (Br. p.364) that “Raley’s grant of recognition to UDCEA was in . . . two bargaining units, one covering the Yreka drug center and the other covering all of the other California drug centers.” As we shall see, this assertion is not consistent even with the ultimately revised version of the complaint describing the “Drug Unit” in which Raley’s was supposed to have granted unlawful recognition, much less is it consistent with original pleadings on that score. That aside for now, the General Counsel further asserts (id.) that, . . . the signatures that UDCEA obtained on its petitions from the Yreka drug center employees may not be included in de- mistake, moreover, 1 which enjoys no independent support in the re- cord. 2 Even though nine “names” on the Yreka petition (GC Exh. 54, Bates 730) are printed on lines adjacent to lines calling for signatures, there are only eight purported signatures on the lines adjacent to the printed names. (Unlike the others, there is no signature adjacent to the printed name “Heidi Campbell.”) Raley’s apparently agrees that Camp- bell’s printed name does not qualify as a designation of UDCEA. Thus, on brief (p. 270), Raley’s avers that, at Yreka, “eight signatures, out of the nine eligible unit employees, were obtained.” In the circumstances, I will ignore Campbell’s printed name for purposes of ascertaining the number of employees who had designated UDCEA as of September 23. 3 Counsel for the General Counsel three times unaccountably asserts on brief (pp. 368–369) that there were “five” such workers at Elk Grove as of September 23. In fact, the exhibit she cites, GC Exh. 106, lists six such workers. (Counsel may have failed to count the name of Stacey Armstrong, which appears alone on p. 2 of the cited exhibit.) Moreover, the same six names listed on the cited exhibit are separately repeated in the General Counsel’s listing of the disputed Elk Grove workers. See GC Exh. 182, p. 17. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550 termining UDCEA’s majority status in the bargaining unit covering all of the other drug centers. Rather, those signa- tures may only be used in determining UDCEA’s majority status in the separate Yreka drug center bargaining unit, as of September 23. In the light of complaint pleadings discussed below, I think the General Counsel’s assertion for the first time on brief that Raley’s grant of recognition to UDCEA was in “two units” reflects not just a refinement of the Government’s position but a substantial shifting of ground, all apparently done in an un- convincing attempt to reconcile the General Counsel’s position that Elk Grove workers were included in the recognized unit with her position that Yreka drug clerks were not.4 I think it’s more accurate to characterize the General Counsel’s position, as expressed both in pleadings and in numerous colloquies of record, as follows: The “recognized unit” was a single, multi- store unit, comprised of all drug clerks working in all existing California Drug Centers (plus six persons employed in the not- yet-open Elk Grove store), except those nine drug clerks em- ployed in the Yreka Drug Center. Put differently, and ignoring Elk Grove for the moment, the General Counsel is effectively contending that the recognized unit covered drug clerks in 50 of the 51 Drug Centers then in business operation, and that the Yreka drug clerks were in a “separate unit” not encompassed at all by Raley’s September 23 grant of recognition. As noted already, there were nine drug clerks working in the Yreka Drug Center at the time of recognition, and the purported signatures of eight of them appeared on a petition (GC Exh 54, Bates 730) faxed to Raley’s headquarters some days prior to the September 23 grant of recognition. Therefore, under the prose- cution’s “two-unit” theory, however it might be more particu- larly rationalized, the General Counsel contends that none of the Yreka petition signatures can be counted towards UDCEA’s majority-showing in the “unit” supposedly comprised of all drug clerks in California except those in Yreka. In addition, the General Counsel separately attacks two of the Yreka signatures 4 In discussing the Elk Grove issue on brief (p. 371), the General Counsel seeks to explain why the government’s “position” that Yreka drug clerks were excluded from the facially “all”-encompassing grant of recognition in a single “unit” is “not inconsistent with” the govern- ment’s “position”—for purposes of the Elk Grove issue, at least—that “all,” in the latter case, really did mean “all.” And in thus trying to reconcile these “positions,” the General Counsel is now required to construe Raley’s grant of recognition to UDCEA as intended to confer recognition in “two separate bargaining units, one covering the Yreka drug center and the other covering all of the other California drug cen- ters.” (And this despite the fact that the General Counsel’s complaint has always alleged that only a single, “unit,” called the “Drug Unit” in the ultimate version of the complaint, was the “unit” covered by Raley’s grant of recognition.) Here again, we confront mincing equivo- cation verging on doubletalk. (When the General Counsel states that one “position” taken by the prosecution is “not inconsistent with” an- other prosecution “position,” is this intended to mean that the two posi- tions are consistent? If so, why is counsel so obviously reluctant to say so affirmatively?) And particularly in this instance, I think we are pre- sented with not just with equivocation, but the sheerest kind of sophis- try. Counsel for the General Counsel is clearly trying here to straddle two horses galloping in opposite directions, with the inevitable result that she remains astride of neither mount. as forgeries. Here, I will address only the question whether the Yreka employees were encompassed within the single “unit” covered by Raley’s grant of recognition. I will reserve all dis- cussion of forgery issues, including those associated with Yreka, to a later section. The General Counsel’s “two-unit” theory ultimately requires us to accept a central proposition—that Raley’s did not intend to confer recognition on UDCEA in a single, all-encompassing unit of all drug clerks in all Drug Centers Statewide. The Gen- eral Counsel seeks to support this proposition with the follow- ing subordinate assertions and arguments: (A) Abfalter, in his letter to UDCEA conferring recognition, referred parentheti- cally to the recognized unit as being “a unit coextensive with the unit previously represented by the IDCA,” and Teel, in his memo to drug clerks announcing the recognition likewise char- acterized the recognized unit as being “the same” as the former IDCA unit. (B) Thus, “the explicit language” of these writings necessarily invites examination into the historical “unit” status of Yreka drug clerks under IDCA’s representation.5 (C) An examination of the bargaining history between IDCA and Raley’s shows that those parties always executed a separate contract document for Yreka drug clerks containing hourly pay rates that were lower than those called for in the other, master IDCA contract applicable to all other drug clerks in California. (D) The existence of the separate Yreka contract requires the conclusion that drug clerks in Yreka were treated by Raley’s and IDCA as comprising a “bargaining unit” separate from their fellow drug clerks in all the other California Drug Centers. 2. Analysis; conclusions; updated fraction For reasons discussed below, I regard the General Counsel’s attempt by such arguments to excise the nine Yreka employees from the denominator of the majority calculation (and thus to excise the eight Yreka petition signatures from the numerator) as wholly inconsistent with complaint “unit” pleadings made before the General Counsel became “numbers”-conscious. More important, I will find that the General Counsel’s central proposition is itself indefensible, and that each of the subordi- nate arguments on which that proposition rests cannot be rec- onciled with longstanding Board law. And in this latter regard, I note the conspicuous absence from the General Counsel’s arguments of any citation to legal authority. The General Counsel’s current assertion that the historical IDCA unit was, in fact, “two units” facially contradicts every pleading issued by the General Counsel on the matter. Even in the amended consolidated complaint of March 29, 1996 (which first attacked the recognition, and which first introduced the notion that the “Drug Unit” did not include Yreka drug clerks), the gist of the complaint allegations was that, during the IDCA epoch, there existed a single “unit,” called the “Drug Unit,” a unit which did not include Yreka drug clerks, and that Raley’s unlawfully conferred recognition on UDCEA in this “Drug 5 GC Br. at 364 (emphasis added): “Based on the explicit language of these two documents, the determination of whether the Yreka drug center was a separate bargaining unit at the time Raley’s recognized UDCEA depends on whether it was a separate bargaining unit under IDCA’s collective bargaining agreements with Raley’s.” RALEY’S 551 Unit.”6 Thus, in the amended consolidated complaint, and in all subsequent incarnations, this is how the General Counsel iden- tified both the “Drug Unit” in which Raley’s recognized UDCEA and the “Drug Unit” previously represented by IDCA: 6. At all material times, the following employees of Respondent Raley’s, herein called the Drug Unit, consti- tuted a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All employee classifications employed by Respondent Raley’s in its Drug Centers, Family Centers, or the like, located in the State of California, except Yreka, California, and formerly covered under the terms of the collective bargaining agreement in effect between Respondent Raley’s and IDCA for the period October 1, 1989 to Octo- ber 3, 1992, excluding guards and supervisors as defined by the Act. It is useful next to compare these recent “Drug Unit” allega- tions with the counterpart paragraphs appearing in the first of the several complaints that were ultimately consolidated for hearing before me—the complaint in Case 20–CA–24973. This “IDCA-case” complaint was issued in the General Counsel’s name on December 11, 1992, when the “numbers” now deemed so important by the General Counsel had not yet become im- portant. And then the complaint described the “IDCA Unit” in somewhat less tortured (but no less oblique) terms, as a single, undivided “Unit,” i.e., as a unit which did not “except” Yreka drug clerks. Thus: 6. The following employees of [Raley’s], herein called the Unit, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees covered by the terms of the collective- bargaining agreement between [Raley’s] and [IDCA], ef- fective by its terms from October 3, 1992 [sic]; excluding guards and supervisors as defined in the Act.[7] It is apparent that when the General Counsel was not yet seek- ing to discredit the recognition of UDCEA (i.e., when “num- bers” did not loom so large in the prosecution thinking), the “Unit” represented by IDCA was construed by the General Counsel to be a single, all-encompassing one, one itself defined by what was asserted to be a single “agreement” between Raley’s and IDCA. However, as we know, even then there were, in fact, two different “contract” documents affecting the 6 Compare complaint par. 6 (describing the “Drug Unit” under IDCA representation) with pars. 29(b) and (d) (identifying the same “Drug Unit” as the one in which Raley’s recognized UDCEA/UWRU on September 23, “even though [UWRU] did not represent a majority or an uncoerced majority of the Drug Unit.” 7 The same, “One-Unit” description of the IDCA “Unit” was like- wise set forth in another “IDCA-case” complaint, the one issued on May 28, 1993, in Case 20–CA–25195–1. And this complaint, too, was eventually consolidated for hearing before me. However, as noted in part one, the allegations of this latter complaint were withdrawn by the General Counsel after the trial opened, at a time when these allegations had become incorporated into the then—outstanding “Second Amended Consolidated Complaint,” as itself amended by the “Amendment[s] to Second Amended Consolidated Complaint.” drug clerks, one of them uniquely applicable in its wage terms to Yreka drug clerks. Moreover, the existence of the two con- tract documents was clearly known to IDCA, the nominal charging party in the case which triggered these original “unit pleadings, and we may thus assume that the same information was likewise known to the General Counsel when the first “IDCA” complaint issued. (If not, we would have to postulate that the General Counsel failed to exercise ordinary profes- sional diligence before issuing a complaint purporting to de- scribe the single “Unit” in terms of employees covered by a certain single “agreement.”) And yet the General Counsel can’t have been referring particularly to only one of those two con- tract documents as fully embodying the “agreement” obliquely referenced in the “Unit” description. Rather, the General Coun- sel obviously construed the “Unit” as one covered by a single, overarching “agreement.” Put in other words, it is clear that the historical existence of the two contract documents did not deter the General Counsel from asserting the existence of a single, overall “agreement” covering all of the drug clerks, much less did it prevent the General Counsel from asserting that this “agreement” itself defined a single, indivisible unit, called “the Unit.” Consistency of successive pleadings and argument by the General Counsel in the same or related cases is obviously something to be hoped for, and especially so whenever the General Counsel, construing the same underlying facts, pur- ports to define something as elementally important to the ad- ministration of the Act as a “bargaining unit.” I recognize, however, that the General Counsel is not strictly required to be consistent in pleading and argument. I recognize, too, that the “Drug Unit” pleading in the amended consolidated complaint of March 29, 1996, necessarily reflects a superseding descrip- tion of “the Unit” identified in earlier complaints, no matter how inconsistent with the earlier pleading. I recognize, as well, that a later, inconsistent position, even when taken by a party for what plainly appear to have been opportunistic reasons, is not necessarily a legally invalid position for all that. Accord- ingly, I will now examine the General Counsel’s current, “two- unit” position on its own merits: As already noted, the General Counsel’s position as to Yreka rests in the end on a textual analysis of two writings published by Raley’s, Abfalter’s letter conferring recognition, and Teel’s memo to employees announcing the recognition. For reasons discussed below, I regard the General Counsel’s interpretations of these documents as strikingly obtuse, the product of the same kinds of self-servingly myopic textual analyses that have in- formed so many of the General Counsel’s other claims as to what Raley’s “really” intended in a given writing. Let us again recall both the context in which Raley’s ex- tended recognition and the text of what Raley’s actually said in the two writings in question: At 4:55 p.m. on September 23, after having previously secured and presented UDCEA peti- tions to Raley’s, including one purportedly signed by eight Yreka drug clerks, Wright faxed the following demand for recognition on UDCEA’s behalf (emphasis added): This letter is to inform you that the United Drug Cen- ter Employees Association represents a majority of the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552 Drug Center employees, excluding pharmacists, in all the California stores. The United Drug Center Employees Association hereby demands recognition in all of Raley’s California stores as those employees’ collective bargaining represen- tative. We have previously provided you with evidence of such majority status. Roughly an hour later, Abfalter dispatched the following reply (emphasis added): We have in our possession evidence that a majority of the in- dividuals working as Drug Clerks in our Northern California Drug Centers wish to be represented, for purposes of collec- tive bargaining, by your labor organization, the United Drug Center Employees Association. Based on that evidence, Raley’s hereby recognizes your labor organization as the col- lective bargaining representative of those employees (a unit coextensive with the unit previously represented by the IDCA), and we are prepared to immediately commence nego- tiations for a contract. Please contact me at your earliest con- venience to arrange mutually acceptable dates for the start of negotiations. At about the same point on the evening of September 23, Teel signed a memorandum addressed to “All California Drug Cen- ter Employees” announcing the recognition. The memo to this all-encompassing group of employees stated: Raley’s has received evidence that a majority of you [i.e., “All California Drug Center Employees”] wish to be represented by the United Drug Center Employees Association, a new la- bor organization formed by some Raley’s employees. Based on that evidence, Raley’s has recognized the United Drug Center Employees Association as your union. This union has been recognized as the representative of all drug clerk em- ployees who work in the company’s California Drug Centers. This is the same collective bargaining unit that existed under the IDCA contract. The General Counsel now insists that these writings can be construed as effectively granting recognition in two “separate units” (or, to be more consistent with the complaint pleadings, in a single “Drug Unit” from which Yreka employees were excluded). This contention is doomed from the start. The “unit” in which recognition was extended was unmistakably defined by Raley’s in its letter to Wright as covering “the individuals working as Drug Clerks in our Northern California Drug Cen- ters.” The same “unit” was simultaneously described by Raley’s in a separate letter to employees as “all drug clerk em- ployees who work in the company’s California Drug Centers.” With respect to the recognition letter, we must ask: What is it about the phrase “the individuals working as Drug Clerks in our Northern California Drug Centers” which suggests that Raley’s “really” intended to confer recognition in “two units?” And with respect to the recognition-announcement letter, we must ask: What part of “all drug clerk employees working in the company’s California Drug Centers” does the General Counsel think allows a conclusion that recognition was conferred in two units?” Indeed: What part of “all” does the General Counsel fail to understand? Counsel for the General Counsel has advanced no coherent answer to these questions on brief. Rather, at least for purposes of her position on the Yreka issue, she completely ignores these unmistakable characterizations of the recognized “unit” as an all-encompassing one. She seizes instead on parenthetical or secondary characterizations by Raley’s of the recognized “unit” as being “coextensive with,” or “the same as” as the former IDCA “unit.” Admittedly, if Raley’s had only described the recognized “unit” in such latter terms, this might arguably in- vite inquiry into exactly which “unit” (or “units”) IDCA had previously represented. But Raley’s didn’t do this: Instead, it unambiguously described the recognized unit first as one com- prised of all drug clerks working in its California Drug Centers, and only secondarily did it indicate its belief that this “unit” was the same as the one previously represented by IDCA. Clearly, therefore, the secondary characterization of the recog- nized unit cannot be taken as somehow superseding the unam- biguous primary characterization. Rather, in context, the secon- dary characterization merely reflected Raley’s belief that the “unit” IDCA had previously represented was likewise an all- encompassing one. (Just as did the General Counsel when issu- ing the original “IDCA” complaint and describing the IDCA “Unit” in all-encompassing terms.) Accordingly, where UDCEA’s clear intent was to seek recognition in a unit of all drug clerks in all Drug Centers statewide, and Raley’s likewise clearly intended to confer recognition in single, all-encom- passing statewide unit, it is wholly unnecessary to seek to inde- pendently ascertain whether Raley’s was correct in asserting that the former IDCA unit was likewise a single, statewide unit. The General Counsel, however, insists that such an inquiry into IDCA bargaining history is not simply a fool’s errand, as I believe it is, but rather, that the inquiry is critically necessary to determine the parties’ intent as to the unit-scope “question.” But the General Counsel fares no better even if we indulge the supposition that the bargaining history between Raley’s and IDCA must be explored before we can adequately understand what Raley’s meant when it conferred recognition on UDCEA in what it described as a single “unit.” The only bargaining- history evidence cited by the General Counsel to suggest that the IDCA unit was actually treated by the parties as “two units” is that IDCA and Raley’s historically negotiated one schedule of hourly pay rates to be applicable to all drug clerks in Cali- fornia except in the Yreka Drug Center, and another schedule of lower pay rates for Yreka employees and then signed two contract documents, each identical in all respects but pay rates. The General Counsel clearly regards the historical, “two- contract” pattern as legally decisive, necessarily requiring the conclusion that the parties treated Yreka drug clerks as com- prising a splinter “bargaining unit” of their own. Strikingly, however, the General Counsel has not cited any legal authority for the proposition that “two contracts” equals “two units.” And I doubt that this was due merely to a failure on the General Counsel’s part to do the necessary legal homework. Rather, I have to assume that the General Counsel was aware that the Board, particularly when examining unit-scope questions aris- ing in a multistore or multiplant context, has frequently and RALEY’S 553 consistently held that the existence of a “local contract,” re- flecting terms uniquely applicable to a particular facility of the employer, is wholly compatible with a finding that the employ- ees in the facility covered by the local agreement were never- theless “merged” into a larger, multifacility “unit” for collec- tive-bargaining purposes. The point is clearly established in, e.g., General Electric Co., 180 NLRB 1094 (1970): Here, the Employer, with the Union’s acquiescence, has and is recognizing a multiplant unit rather than the previously cer- tified separate units. Thus, from the inception of the bargain- ing relationship 19 years ago the Employer and Union have obliterated the separate units by negotiating on a multiplant basis. This multiplant bargaining is the rock on which the col- lective-bargaining relationship has been built. Such bargain- ing has resulted in a series of national agreements, multiplant in scope, fixing terms and conditions of employment in the represented plants with matters of individual plant concern re- served for local bargaining. This local bargaining can hardly be termed inconsistent with the nationwide bargaining for it would be unrealistic for the parties to attempt to make uni- form national provisions on all subjects with no allowance for variation to take into account purely local conditions. See also, id. at fn. 6: The Board has held that the negotiation of supplemental agreements on a local basis and references in national agree- ments to “units” are not inconsistent with a finding of multi- plant bargaining. See General Motors Corporation, Cadillac Motor Division, 120 NLRB 1215, 1220, 1221. With regard to intent, the record supports the Union’s position that despite the absence of an explicit admission as to intent, the parties have, in fact, by their own conduct, as set forth above, merged the separate units into a multiplant bargaining unit. See also, Wisconsin Bell, Inc., 283 NLRB 1165, 1166 (1987): The Board has long recognized the “merger doctrine” under which an employer and union can agree to merge separately certified or recognized units into one overall unit. This doc- trine was recently affirmed in our decision in Gibbs & Cox, 280 NLRB 953 (1986). Where such an agreement has been reached, the larger, merged unit is the only unit appropriate for purposes of a representation election. Here, the Employer and the Union reached an agreement that merged the Kossow Road employees into the larger unit set forth in appendix D of the 1983 and 1986 collective-bargaining agreements. Accord- ingly, as the petitioned-for unit is not coextensive with the currently recognized and established bargaining unit, the peti- tion shall be dismissed. [Fns. omitted.] And see, e.g., Albertson’s, Inc., 307 NLRB 338 (1992), where the Board, relying on Wisconsin Bell principles, found that a decertification petition seeking an election in a unit of customer service employees in the employer’s Spokane-area grocery stores must be dismissed where the customer service employees had long since been “merged” by agreement and practice of the parties into a larger, multistore bargaining unit comprised of workers in virtually all grocery store classifications. Here, as I summarize next, the record overwhelmingly shows that IDCA and Raley’s had long ago “merged” any arguably “separate” groupings of drug clerks at different Drug Centers into a single, statewide bargaining unit, notwithstanding that Yreka drug clerks were historically covered by a separate, “lo- cal” contract reflecting lower hourly pay rates than those set forth in the “master” contract” document otherwise applicable in all its terms to all drug clerks statewide. Indeed, the recogni- tion language commonly appearing in both the master contract and the Yreka contract alone establishes that Raley’s and IDCA intended that the “unit” for bargaining was statewide in scope: Thus, the identical recognition clauses in both the 1989–1992 master contract and the 1989–1992 Yreka contract stated as follows (emphasis added): The Employer recognizes the Association as the sole and ex- clusive collective bargaining agent for all persons employed by the Employer in its [Drug Centers] within the State of Cali- fornia with the following exception in each unit: (1) One (1) manager. (2) One (1) assistant store manager and up to three second assistant store managers designated by the Em- ployer and actually serving in that capacity. (3) Registered Pharmacists (4) Security Officer. As the above-cited Board cases and many other clearly indi- cate, the historical bargaining practices of the parties to a labor relationship, their prior interpretations and applications of their labor agreements, and other indicia of their “intent” with re- spect to unit-scope issues, are normally controlling factors in determining such issues, whether such issues arise in a con- tract-bar context, a decertification-petition context, an amend- ment of certification context,8 or in other contexts affecting the employer’s recognitional or bargaining obligations.9 Indeed, it is only where the historical practices, or the instruments pur- porting to reflect the parties’ intent, are themselves ambiguous that the Board will make an “independent” scope-of-unit de- termination. Here, the common recognition language of the IDCA contracts alone makes it clear that IDCA and Raley’s had agreed to merge all drug clerks in California into a single, statewide unit for collective-bargaining purposes. Moreover, where the parties had thus agreed to merge all drug clerks into a single, statewide unit, the unit must be presumed to have been an “appropriate” one within the meaning of Section 9(b); for the Board will normally honor such a voluntarily agreed-on unit unless the unit facially contravenes a statutory provision or is otherwise repugnant to the Act. See, e.g., Buffalo Broadcasting Co., 242 NLRB 1105, 1106 fn. 2 (1979), and authorities cited. Here, the General Counsel does not contend that a single, statewide unit is somehow inherently or facially inappropriate in the circumstances, and any such contention would obviously be frivolous. Thus I find, consistent with the language in the IDCA agreement, that not only did Raley’s and IDCA intend that the “unit” covered by their successive agreements was an 8 See, e.g., Western Commercial Transport, 288 NLRB 214, 215 (1988). 9 See, e.g., Alpha Beta Co., 294 NLRB 228, 229 (1989). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554 unfragmented, statewide unit, but that such a unit was and is an appropriate one for collective-bargaining purposes. It is equally clear that the bargaining history between IDCA and Raley’s concerning the drug clerks is wholly consistent with a mutual intent to treat all drug clerks statewide as com- prising a single, unfragmented bargaining unit. First, it is clear from the harmonious testimony of both Kenneth Collings, Raley’s longtime head of labor relations, and Kay Sordillo, IDCA’s president for the first 28 years of its existence, that, historically, bargaining between IDCA and Raley’s for any grouping of drug clerks was always conducted in the context of bargaining for all drug clerks employed in all then-existing Drug Centers, with the same IDCA bargaining team doing all such bargaining on IDCA’s behalf. Indeed, as I discuss next, those witnesses credibly testified that such was the case with respect to Yreka drug clerks after the Yreka store opened in late 1984 or early 1985, even though this round of bargaining re- sulted in the creation of a separate contract document for Yreka drug clerks. Thus, relying on Sordillo and Collings, I find as follows: Af- ter the Yreka Drug Center opened, IDCA secured authorization cards from a majority of the drug clerks there, and Raley’s recognized IDCA as their representative. This recognition was consistent with historical patterns when a new Drug Center opened, under which, following a demonstration by IDCA of majority support in the new store, Raley’s would recognize IDCA as their representative and then would treat the “after- acquired stores” clause in the IDCA agreement as requiring that drug clerks in the new store come under the coverage of that agreement. Coincidentally, however, the Yreka recognition occurred while the parties were already engaged in midcontract “reopener” discussions concerning drug clerks’ pay rates throughout the California stores. And the parties, in that overall wage-bargaining context, devoted some of their discussions to Raley’s wish to pay Yreka employees a lower rate than that paid to other drug clerks in California. Raley’s stressed that the Yreka store, located adjacent to the Oregon border, was unique among the California stores because it operated in a “southern Oregon” labor market, where Raley’s and its competitors in the Yreka area had traditionally paid their clerks lower hourly pay rates than elsewhere in California. IDCA eventually agreed to a two-tier arrangement under which Yreka clerks would receive lower hourly pay than their counterparts elsewhere in Califor- nia (just as Local 588 likewise agreed, incidentally, when Raley’s later recognized that union as the representative of grocery clerks in the same Yreka store10). The parties also dis- cussed Raley’s wish to create a separate contract document for 10 Judge Pollack’s decision in the Grocery Cases clearly indicates that, in 1992, Local 588 and Raley’s reached a similar agreement with respect to lower hourly rates for Yreka grocery clerks. Thus, Judge Pollack found (JD(SF)–106–98, slip at 5–6) that in July 1992, Raley’s recognized Local 588 as the representative of grocery clerks in the Yreka store, and that the parties then agreed that “the [lower] wage rates of southern Oregon, rather than the [higher] wage rates of the master food agreement [covering grocery clerks elsewhere in Califor- nia] would apply[,]” and that this agreement resulted in the execution of an “addendum” to the master food agreement setting forth these “lower base wages” for Yreka grocery clerks. the Yreka drug clerks setting forth these lower rates. Sordillo objected, citing historical understandings under the after- acquired stores clause that, once IDCA demonstrated its major- ity support among employees in a new store, those employees must automatically come under the coverage of the existing agreement, and that the only matter in the existing agreement open for midterm bargaining was wage rates statewide. There- fore, she contended, the Yreka pay rates could simply be incor- porated into the existing contract, which would have to be amended anyway, to list the newly-negotiated pay schedules applicable to drug clerks elsewhere. She also stressed that she didn’t want the “Retail Clerks” to be able to seize on the exis- tence of a separate contract document for Yreka as a basis for claiming that Yreka was a “separate unit,” and thus to seek an election in that single-store unit. Collings either agreed with, or did not dispute Sordillo’s basic point under the after-acquired stores clause. But Collings was adamant in insisting on a sepa- rate contract document, and he stressed that it would be unde- sirable from a “morale” standpoint to have Yreka drug clerks’ lower rates juxtaposed in a single contract document against the higher rates to be applicable elsewhere in California. Eventu- ally, after Collings assured Sordillo that Raley’s would not treat Yreka as a separate unit, and that the statewide recognition language would likewise appear in the Yreka contract, Sordillo acquiesced. Thus was born the practice that would be followed thereafter by IDCA and Raley’s, with little further debate on the subject, in subsequent bargaining between the parties for successor agreements. Nevertheless, as both Sordillo and Collings har- moniously testified, bargaining for successor labor agreements was always conducted by a single IDCA team headed by Sor- dillo (a team, incidentally, which typically included one or more Yreka drug clerks) dealing with a single Raley’s team headed by Collings or a surrogate. (Indeed, the testimony of Local 588’s Tursky—a key member of IDCA’s bargaining team in the ultimately unsuccessful effort to negotiate a succes- sor to the 1989–1992 IDCA agreement—shows that these tradi- tional bargaining patterns did not materially change during the protracted bargaining preceding Eidam’s disclaimer. Thus, Tursky acknowledged that any discussions about Yreka pay rates occurred in the context of overall wage-bargaining for all the drug clerks statewide, and so, too, did any discussions about setting forth the Yreka clerks’ pay rates in a separate contract document.) Moreover, historically, bargaining between IDCA’s and Raley’s teams did not end until overall agreement was reached by the parties with respect to all issues affecting drug clerks statewide. Thus, there is no evidence, for example, that IDCA and Raley’s would reach agreement with respect to Yreka pay rates and then sign a Yreka contract, then proceed to bargain further with respect to the terms and conditions of em- ployment of all other drug clerks in the State. Rather, bargain- ing by these teams always resulted first in an overall agreement as to all terms and conditions of employment of all drug clerks statewide, and only then did the parties prepare and sign sepa- rate contract documents reflecting the overall agreement. Other than schedules for hourly pay, however, there was never any substantive textual difference between the “master” contract RALEY’S 555 document and the special contract signed for the uniquely- situated Yreka drug clerks. In addition, when IDCA conducted ratification votes among its members with respect to each new successor agreement, the agreement as a whole was presented to all the members, and the votes of Yreka drug clerks were always pooled with those of drug clerks at other Drug Centers in California before the votes were counted and the final tally was announced. And again, it is clear that the same process occurred in August 1993, when IDCA called meetings to conduct votes on Raley’s “last offer,” with the recommendation from its officers that it be voted down. Thus, Wright’s undisputed testimony about the ratifica- tion meeting conducted in Red Bluff (see decision, part four) clearly shows that the ballots of Yreka drug clerks in atten- dance were pooled and commingled with those of drug clerks from other Drug Centers, before IDCA’s officers counted all the ballots and determined that a majority of the members had voted against ratification. In sum, despite the fact that the parties historically executed a separate contract document setting forth lower hourly pay rates for Yreka drug clerks, the parties’ intent, as manifested both by the recognition clause in the successive agreements and the parties’ historical actions in conducting common bargaining for all Drug Centers, clearly was to treat the IDCA “unit” of drug clerks as a single, all-encompassing statewide unit for collective-bargaining purposes. Accordingly, despite the Gen- eral Counsel’s recent, numbers-conscious fixation on the sepa- rate contract documents, Yreka drug clerks were, from the very start, merged into the statewide bargaining unit established by the parties during the IDCA epoch. Based on all of the foregoing, I reject the General Counsel’s contention that when Raley’s recognized UDCEA as the exclu- sive representative of drug clerks working in all of its Califor- nia Drug Centers, it “really” intended only to recognize UDCEA as the representative of drug clerks in all Drug Centers except Yreka. Thus, I find that the nine Yreka drug clerks must be added to the denominator for purposes of calculating the extent of UDCEA’s majority-showing. Moreover, inasmuch as the General Counsel concedes that six of the purported signa- tures of Yreka drug clerks were authentic, I will add those six signatures to the updated numerator in the fraction. Accord- ingly, the agreed-on baseline fraction (339/657) may now be updated to yield the fraction 345/666 (or 11 more signatures than needed for a “bare” majority-showing of 334). C. Elk Grove Issue 1. Facts The parties stipulated that the Elk Grove store did not open for business until October 20. Thus, the recognition of UDCEA preceded the opening of the Elk Grove store by roughly a month. As of the September 23 recognition, however, six non- supervisory employees (other than pharmacists) were already performing work in the Drug Center side of the Elk Grove store, and were being carried on the “time sheet” for the “Drug” side of that store (GC Exh. 106). These included four transfer- ees from other existing Drug Centers in California, plus two new hires. All of them had been transferred or hired to become part of the permanent complement of drug clerks once the Drug Center opened. The following listing sets forth their names and certain details, including their specialty job classification (if any other than “drug clerk”), and the date each started working at Elk Grove, all as evidenced by the time sheet exhibit and/or certain stipulations of the parties: Gloria Perry, Cosmetics clerk: Transferee; started Au- gust 30 Trent Wenck, Transferee; started September 20 Stacy Armstrong, Pharmacy clerk: Transferee; started September 22 Steven Thomas, New hire; started September 22 Viola Castaneda, New Hire; started September 22 Ricardo Genera, Transferee; started September 23 The record contains no evidence from anyone with firsthand knowledge about who was doing what inside the shell of the Elk Grove store as of September 23. However, Abfalter gener- ally described the way it works when Raley’s prepares to open a new store, and the parties have all cited his descriptions for these purposes. I, too, rely on Abfalter to find as follows: As of September 23, with about a month to go before the new store opened for business, the physical construction of the store and its wiring and plumbing and other mechanical systems would have been substantially completed. By then, merchandise shelves and racks and counters would already have been in- stalled, as well, and Drug Center products would already have been shipped to the store. By then, a special team from head- quarters would have been on-site to supervise, inter alia, the stocking of the shelves and product displays according to head- quarters-prepared “schematics,” i.e., diagrams specifying where each product should go, how much “face” space was to be allo- cated to each, and detailing other such display matters impor- tant both to retail merchandisers and the product-vendors who would furnish the merchandise to be sold. By then, outside vendors would also have been on-site to stock certain racks or shelves themselves, and to install custom advertising displays. By then, the Drug Center Manager would have been hired for the new store, and would be working with the headquarters team and the vendors to make sure that the schematics were being followed. By then, at least enough drug clerks would have been hired to help with product-stocking tasks, and, pre- sumably the six above-named employees had been put to work by September 23 to perform such get-ready work. On Friday, October 15, 3 weeks after the recognition, and with less than a week to go before the Elk Grove store opened for business, Wright visited that store and secured the signa- tures of five of the above-named workers (i.e., all but Casta- neda’s), plus that of another drug clerk (Gary Fong) who had not yet been hired as of September 23. (See R. Exh. 16.) The same day, Wright faxed this petition to Abfalter, along with a cover letter (R. Exh. 17) demanding recognition as the repre- sentative of the drug clerks at Elk Grove. On the following Monday, October 18, two days before the Elk Grove store opened for business, Abfalter wrote to Wright granting such recognition. By that point (as Wright credibly testified), Raley’s and UDCEA had already negotiated and come to agreement on many or most of the “non-economic” terms for a new labor agreement. And, after Raley’s recognized UDCEA DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556 as the representative of the Elk Grove employees, the parties agreed to include them within the coverage of any ultimate agreement they might reach. 2. Analysis; conclusions Here, despite the prosecution position taken with respect to the exclusion of Yreka drug clerks, the General Counsel now finds it convenient to argue that when Raley’s recognized UDCEA as the exclusive representative of the “individuals working as drug clerks in our Northern California Drug Cen- ters,” it thereby evinced the intent to recognize UDCEA as representing the drug clerks currently working in the shell of the yet-to-open Elk Grove store. Thus, so the General Counsel reasons, the six employees named above already working in Elk Grove as of September 23 must necessarily be counted as falling within the recognized “unit,” and must be added to the denominator for purposes of determining the extent of UDCEA’s majority-showing. This position, standing alone, cannot be dismissed as without textual support in the recognition papers, even though the unique status of the Elk Grove store and the employees then working in it arguably presented unique questions about UDCEA’s and Raley’s intent as to the scope of the unit in which recognition was sought and conferred. Certainly, at least, the six persons now in question were “individuals” within the intent of the recognition letter, and, it may not involve too great a stretch to say that they were then “working as drug clerks,” and even that the not-yet-open Elk Grove Drug Center was, nevertheless, a “Drug Center” within the literal meaning of the recognition papers. Nevertheless, for reasons set forth below, I will find, (1) that Elk Grove drug clerks were not intended to be encompassed within either UDCEA’s demand for recognition nor within Raley’s grant of recognition; and (2) even if they were, it would have been independently unlawful for Raley’s to have extended recognition to UDCEA as the representative of Elk Grove drug clerks in the absence of a contemporaneous showing that a majority of Elk Grove drug clerks had desig- nated UDCEA as their representative. Thus, in agreement with one of Raley’s arguments, I think that “extent of organization” is a factor to be given important weight in the current analysis of the parties’ mutual intent as to the scope of the unit when recognition was sought and con- ferred. As of September 23, UDCEA had not tried to organize the Elk Grove employees, and had not presented Raley’s with any evidence of support from Elk Grove employees. (Likewise, there is no evidence that Local 588 tried during—or after—the prerecognition period to solicit support among the Elk Grove workers, much less that Local 588 had ever demanded recogni- tion in that unit.) Accordingly, it is difficult to suppose, as the General Counsel does, that UDCEA and Raley’s nevertheless intended to treat the employees recently hired to work in a store which had not yet opened for business as being encompassed either by the demand for recognition or by the grant of recogni- tion. Rather, it appears from all the circumstances that, as of September 23, the Elk Grove workers were not seen by any of the parties as appropriate targets for organizing or recognition, and, to that extent, were in a kind of inchoate class—or limbo status—by themselves. Relatedly, but more fundamentally important: Even if Raley’s and UDCEA had intended as of September 23 to in- clude drug clerks at the yet-to-open Elk Grove store within the recognized multistore unit, to have acted on this intention would have left those parties vulnerable to an almost certainly meritorious 8(a)(2)/8(b)(1)(A) charge grounded on the notion that Raley’s had unlawfully recognized UDCEA as the Elk Grove drug clerks’ representative without any requisite show- ing that a majority of the drug clerks in that particular “new store” had designated UDCEA as their representative. Thus, in Melbet Jewelry Co., 180 NLRB 107 (1969), the seminal case in this area, the Board stated, “We will not, however, under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an over- all unit without allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them.” And the Board held in Melbet, as it has done consis- tently since then (see e.g., Gulf Caribe Maritime Assn., 330 NLRB 766 (2000)), that employers and unions violate the Act when, purporting to rely on the union’s overall majority status in an existing multifacility unit, they agree to treat employees in a new facility constituting a separate appropriate unit as having been automatically “accreted” into the existing multifacility unit. The Melbet doctrine, disfavoring accretion as a basis for permitting employers and unions to incorporate employees of a new facility into an existing recognized multifacility unit, has also been applied in a variety of case settings other than those involving charges alleging unlawful recognition, such as was the case in Melbet and Gulf Caribe, supra. See Kroger Co., 219 NLRB 388 (1975); see also, e.g., Save Mart of Modesto, 293 NLRB 1190, 1191 (1989). Indeed, particularly when it comes to new retail stores, the “Melbet rule” has become the “Kroger rule,” under which the Board will give effect to such an at- tempted merger of employees in a new store into an existing multistore bargaining unit only when a majority of the employ- ees in the new store have affirmatively designated the union as their representative prior to their incorporation into the multi- store unit. Accordingly, for UDCEA and Raley’s to have escaped vio- lating the Act, any recognition as of September 23 which con- templated the inclusion of drug clerks in a store that had not yet opened would have to have been predicated on an affirmative showing by UDCEA that a majority of those employees desired UDCEA’s representation. Clearly, that is not what happened here. Prior to the recognition, UDCEA restricted its organizing efforts to drug clerks in existing stores encompassed within the historical IDCA unit. As of September 23, UDCEA had not even solicited support from Elk Grove workers, much less had it demonstrated support from a majority of them. Thus, as of September 23, the parties to the recognition could not lawfully have treated the workers in the new, yet-to-open Elk Grove store as having “accreted” to, or become “merged” into the unit within which UDCEA had sought and secured majority sup- port. By contrast, however, once UDCEA became lawfully recognized on September 23 in the overall unit, the parties were free under the Kroger rule later to merge the Elk Grove workers RALEY’S 557 into the overall unit upon UDCEA’s later demonstration of majority support among the Elk Grove employees. Counsel for the General Counsel has not acknowledged the Melbet and Kroger issues implicated by her position, much less has she tried to reconcile her position with those holdings. In- stead, the General Counsel seems to have assumed from the all- encompassing language of the recognition documents that the parties intended that such an accretion would occur, and, more- over, that such an accretion would have been lawful. But such assumptions, particularly as to Raley’s supposed intent in the matter, are difficult to square with the way Raley’s had ap- proached questions of recognition and merger when new stores opened during the IDCA epoch. Thus, the record shows that Raley’s had traditionally required a showing of majority sup- port among employees in each new store before it would rec- ognize IDCA as their representative and merge them into the overall unit. And this suggests, in turn, that Raley’s was quite aware of the Melbet and Kroger teachings when it came to recognition of IDCA in new stores. So why should we assume that Raley’s was unaware of, or indifferent to, such principles when it came to its grant of recognition to UDCEA in Septem- ber 1993? I don’t think we can. In asserting that Raley’s and UDCEA intended that the Sep- tember 23 recognition would cover the Elk Grove employees, the General Counsel also invokes two circumstances of record other than the literal text of the recognition documents. As I discuss next, these other facts are either wholly irrelevant to the intent issue, or are too puny to support the General Counsel’s assertion. First, the General Counsel asserts, in substance, that, long before UDCEA’s recognition, Elk Grove employees had al- ready become effectively “merged” or “accreted” into the his- torical IDCA unit by a miniagreement supposedly reached be- tween Raley’s and IDCA in January 1993, in the course of their ultimately unsuccessful attempts to reach a new overall agree- ment. The facts underlying this claim are essentially undisputed and can be summarized quickly: Back in December 1992 and January 1993, during IDCA’s negotiations with Raley’s for a successor drug clerk agreement, the Elk Grove store’s opening was still a distant prospect. However, Local 588’s Tursky, then a participant in those negotiations on IDCA’s behalf, testified without contradiction that the parties exchanged certain propos- als in that period which arguably indicated their tentative agreement that the Elk Grove Drug Center would be included in a listing of “individual seniority areas” used to determine priority for layoff and recall. Consistent with this, General Counsel’s Exhibit 107 shows that Raley’s, on or about Decem- ber 23, 1992, proposed adding “Elk Grove” to the “Sacra- mento” seniority area, and General Counsel’s Exhibit 149 shows that IDCA, on or about January 12, 1993, proposed the same thing, in the context of presenting an overall “revised” proposal for the terms of a new agreement. However, there is no evidence that the parties ever focused any of their discus- sions on the matter of Elk Grove’s inclusion with Sacramento in a common seniority area, and Tursky could not recall the matter ever being broached in later bargaining rounds, which, of course, failed to culminate in an agreement in any case, and following which, of course, Eidam disclaimed IDCA’s interest in representing any drug clerks. These facts about the IDCA bargaining history strike me as entirely irrelevant to the ques- tion of Raley’s “intent” when it came to the scope of the unit in which Raley’s initially recognized UDCEA. IDCA and Raley’s never reached a final, overall agreement. Moreover, even if they had reached a final agreement which purported to cover the Elk Grove drug clerks, they would have been barred by the principles of Melbet Jewelry and Kroger, supra, from giving effect to that agreement, unless, in the meantime, IDCA had demonstrated its majority support among the Elk Grove drug clerks. Accordingly, that IDCA and Raley’s may have tenta- tively agreed as early as January 1993 to include Elk Grove workers under the coverage of their hoped-for new agreement cannot be retranslated into a finding that Elk Grove workers (who did not even exist at the time in question) had already become merged into the statewide unit of drug clerks for which IDCA was then negotiating. Indeed, given the IDCA bargaining history over the course of the previous three decades, I think it is more reasonable to interpret the exchanges of proposals re- garding the “seniority area” status of future Elk Grove drug clerks as wholly conditional in nature, conditioned first on the conclusion of an overall agreement, and conditioned second on some intervening demonstration by IDCA of majority support among the Elk Grove workers once they were hired. In asserting that Raley’s intended as of September 23 to in- clude Elk Grove employees in the recognized unit, the General Counsel also invokes one other undisputed fact: When Abfal- ter’s assistant, Schrimsher, did the computer “systems query” which generated the “denominator” relied on by Raley’s to conclude on September 23 that UDCEA had demonstrated majority support, the computer generated a list of names which included the six employees working at Elk Grove on that date. It appears that the General Counsel’s point here is that, if “Raley’s” didn’t think that Elk Grove employees were encom- passed by UDCEA’s demand for recognition, Schrimsher would have specially edited the input query so as to exclude Elk Grove workers from the query, thus yielding a more pre- cisely reliable denominator for purposes of a majority calcula- tion. I think it’s a pretty feeble point, considering that even when Elk Grove workers’ names were included in the com- puter-generated “denominator,” the number of UDCEA petition signatures still constituted a majority of the drug clerks state- wide, and thus, the failure of Schrimsher to edit her systems query to exclude Elk Grove workers could not have materially affected Raley’s conclusion that UDCEA had demonstrated majority status in the historical unit of existing stores. Accord- ingly, I cannot ascribe any probative significance to the fact that Schrimsher failed to edit her systems query in the more precise manner suggested by the General Counsel. In conclusion, based on the foregoing reasoning, I find that the six Elk Grove workers were not, as of September 23, treated as included in the unit covered by Raley’s September 23 grant of recognition to UDCEA. Therefore, the previously-updated fractional calculation requires no further updating to include Elk Grove workers. It remains 345/666 (or 11 more signatures than needed for a “bare” majority-showing of 334). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558 D. “Medical LOA” Class Issue The General Counsel contends that the recognized unit in- cluded seven drug clerks who were in actual or constructive “medical leave-of-absence” status as of September 23, none of whom signed a UDCEA petition or a Local 588 card, and none of whom were solicited to do so. On brief, both Raley’s and UWRU have now conceded that one employee in this group, Kathleen DeVilbiss, was, indeed, properly treatable as still a “unit employee” of Raley’s on September 23.11 This leaves in dispute only the unit employee status of the other six drug clerks in the class, named below. The Respondents’ concession as to DeVilbiss requires that the denominator be immediately adjusted upwards by one (i.e., to 667). For reasons noted below, I will find merit to the General Counsel’s contentions as to the remaining six. The employees now in question, and the Drug Centers where they worked before becoming inactive due to various medical problems, are as follows: 1. Norma Long #267, Roseville 2. Betty Davis, #283, Red Bluff 3. Candace Lee, # 351, San Pablo 4. Kerry Dagley, #381, Benicia 5. Erika Riviera, #396, Pleasanton 6. Vicki Ruiz, #464, El Dorado Hills I note immediately that all of these workers had been employed in existing Drug Centers within the unit historically represented by IDCA, and thus their status does not raise any of the unique questions associated with the status of Elk Grove workers as of September 23. I agree with the General Counsel that the Board’s representa- tion-case precedents govern the current inquiry. And, in that context, “[t]he Board has long held that an employee on sick or disability leave is presumed to be eligible to vote in a represen- tation election absent an affirmative showing that the employee has resigned or been discharged.” Vanalco, Inc., 315 NLRB 618 (1994), citing authorities. Moreover, this longstanding presumption has also been applied to employees “on Worker’s Compensation,” and has been applied in the context of an un- fair labor practice case, like this one, alleging 8(a)(2)— violating recognition of a union whose purported majority- showing was coerced, and where questions of unit inclusion or exclusion are likewise relevant in assessing the “numerical majority” issue. See Windsor Castle Health Care Facilities, 310 NLRB 579, 591 (1993). I note further that the Vanalco Board, in reaffirming the longstanding presumption that em- ployees on sick and disability leave are eligible to vote unless “affirmative[ly]” shown to have “resigned or been discharged,” acknowledged that this bright-line approach differed from the Board’s case-by-case approach to questions affecting the voting eligibility of a “laid off” employee, as to whom the critical question is not whether the employee “has resigned or been discharged,” but whether the employee has a “reasonable ex- pectation of recall.” Raley’s concedes that none of the six above-listed employees were shown to have “quit or been discharged,” but were instead 11 Raley Br. at 275 fn. 356; UWRU Br. at 56. still carried on Raley’s books as employees on workers’ com- pensation leave. Indeed, the testimony of Mark Ferguson of Claims Management, Inc., the firm which handles workers compensation claims for Raley’s, and who was called by Raley’s as an expert on such matters, clearly shows, inter alia, that Raley’s intentionally refrained from taking any formal action to discharge or otherwise sever these persons from their existing status as employees on workers’ compensation leave. Thus, Ferguson testified, in substance, as follows. The six per- sons in question, due to the peculiar nature of their respective individual medical problems and the particular status of their respective workers’ compensation claims, could not have them- selves expected to ever return to their old jobs or to any compa- rable ones, and Raley’s likewise could not have expected any such outcome. Thus, Raley’s could have taken formal steps to indicate to these employees that they were no longer being treated by Raley’s as “employees.” Instead, however, Raley’s, acting on Ferguson’s general advice in such cases, intentionally refrained from taking any such formal discharge or severance action, for fear that taking such an action might trigger a “re- taliation” suit under State workers’ compensation laws, or might otherwise provoke the employees in question into reas- serting ability or eligibility to return. (The gist of Ferguson’s testimony about company policy in this regard was that it was better to let nature take its course, or let sleeping dogs lie, than to provoke employees who would otherwise be expected never to return to work into now asserting contrary claims.) Nevertheless, Raley’s, relying on Ferguson’s testimony and his interpretations of the particular medical history and claims status of the six employees in question, argues that none of them had any expectation whatsoever of ever returning to work, and, therefore, should not be counted as “employees” in the recognized unit. Raley’s acknowledges that its position is ap- parently at odds with the Board’s longstanding rule, as reaf- firmed in Vanalco, supra, that “an employee on sick or disabil- ity leave is presumed to be eligible to vote in a representation election absent an affirmative showing that the employee has resigned or been discharged.” But Raley’s further asserts that its position can be “harmonized” with that rule. And in this regard, Raley’s invokes certain dicta in the opinion of then Judge (now Justice) Breyer in NLRB v. Newly Weds Foods, Inc., 758 F.2d 4, 7–9 (1st Cir. 1985). But that case, and the dicta in question, would not appear to help Raley’s a bit. There, the circuit sustained the Board’s finding that a disputed em- ployee with a medical problem was eligible to vote where he had not quit or been discharged. Indeed, the circuit found that the Board’s longstanding, bright-line approach in such cases was “basic[ally] coheren[t], and that the “administrative need” for such a bright-line rule was “sufficiently plausible” to reflect a proper exercise of “the agency’s statutory powers” in that case (and especially so where, as in that case, there was no genuine “ambiguity” in the company’s classification of the disputed employee as being on “temporary leave”). Id. at 8–9. Here, it is clear that as of September 23, Raley’s, for reasons of its own, had continued to treat the six persons in question as occupying workers’ compensation-“leave” status, and had in- tentionally refrained from taking any formal discharge or sepa- ration action against them which would have made their status RALEY’S 559 unambiguously that of a nonemployee. In those circumstances, therefore, I think the Vanalco rule governs, and Raley’s reasons for asserting that it should not govern are better addressed to the Board in the first instance. Accordingly, in addition to the now-undisputed status of DeVilbisss as a unit employee for denominator purposes, I will also add the other six disputed employees to the unit employee class. And this yields a final denominator of 673, leaving only the current numerator of 345 subject to further potential revi- sion—and then only upwards. III. THE NUMERATOR I have found that 673 drug clerks were unit employees as of September 23. And there is no dispute that the authentic signa- tures of 345 of these same employees appeared on petitions that were in Raley’s hands when recognition was conferred. Ac- cordingly, if these numbers were both treated as fixed, they would yield a fraction of 345/673 (or 8 more than needed for a “bare” majority of 337). I must now address the General Coun- sel’s contentions that the signatures or purported signatures of a number of additional workers should not be added to the nu- merator in the foregoing fraction. A. Four Petition Signatures Dated “September 23” but not Necessarily in Hand When Abfalter Signed the Recognition Letter The General Counsel and the respondents agree that, aside from petitions clearly in hand on September 23 at the point Abfalter signed and dispatched the recognition letter to UDCEA, Raley’s also received additional petitions containing additional authentic signatures of employees who were em- ployed on September 23 in Drug Centers clearly covered by the grant of recognition. The “September 23” dates next to four of these additional signatures indicated (and the General Counsel does not dispute) that the four signers had placed their signa- tures on the petition on September 23. We are concerned only with these four, September 23-dated signatures. The General Counsel concedes (Br. at 381; emphasis added) that these four employees “apparently signed the petition on September 23,” but the General Counsel stresses that “there is no evidence that they signed the petition before Raley’s recognized UDCEA at about 5:40 p.m.” (Although it’s a small point, I have found, contrary to the General Counsel, that “Raley’s recognized UDCEA”—i.e., Abfalter signed the recognition letter—at “about 6:00 p.m.”12) 12 The General Counsel’s reference to “about 5:40” as the point when “Raley’s recognized UDCEA” reflects the General Counsel’s most wishful thinking about the earliest possible moment this could have happened according to Abfalter’s account. In fact, however, when Abfalter himself used “5:40 to 5:45 p.m.” as “about the time frame,” he was actually talking about when he asked his secretary, Schrimsher, to “pull-up” the already-prepared recognition draft letter from her com- puter. Then, as Abfalter testified, the letter was printed out by Schrim- sher. Then, after this was done, Abfalter signed it. Then, shortly after 6:00, according to Abfalter, Schrimsher took the signed letter and hand- carried it to the nearby Federal Express depot for delivery to Wright. Accordingly, given Abfalter’s account, I would find that the moment that “Raley’s recognized UDCEA” (i.e., when Abfalter signed the recognition letter) must have been far closer to 6:00 than to “5:40.” The General Counsel is talking specifically here about “Sep- tember 23” signatures entered by Sacramento drug clerk Robert McCartney, Windsor drug clerk Jeffrey Krahn, and Hercules drug clerks Cindy Brazil and Steve Abundis. A review of the petition documents containing their signatures shows that we have a mixed bag: Thus, (1) The “Sacramento” petition bearing McCartney’s signa- ture (GC Exh. 54, Bates 780) shows it was faxed to headquar- ters at 6:03 p.m. on September 23. (2) The “Windsor” petition bearing Krahn’s signature (id., Bates 744) shows it was not faxed to Raley’s until 8:18 the next morning, September 24. (3) The Hercules petition bearing Brazil’s and Abundis’ sig- natures (id., Bates 742) was apparently not faxed to Raley’s (it contains no fax header) and, therefore, it contains no indication at all (other than the signature dates themselves) when it might have been delivered to Raley’s. The General Counsel’s contentions on this score are merci- fully short, as follows (p.381; emphasis added): Inasmuch as Counsel for the Acting General Counsel has shown that Raley’s did not have McCartney and Krahn’s sig- natures when it granted recognition to UDCEA at about 5:40 p.m. [sic] on September 23, and probably did not have Brazil and Abundis’ signatures at that time, the burden shifts to Re- spondents to establish that those names were, in fact, placed upon the petitions prior to the time Raley’s recognized UDCEA. Inasmuch as Respondents have failed to do so, those four signatures are not reliable indicators of employee choice and cannot be counted towards UDCEA’s majority. I disagree in every respect. First, given the impossibility on this record of determining the precise moment when Abfalter signed the recognition letter (the moment chosen by the Gen- eral Counsel as the critical moment for these purposes), it is useless for the General Counsel to insist that the government has “shown that Raley’s did not have McCartney’s signature” as of that moment. (Abfalter’s admittedly approximate esti- mates of these matters of timing were made on the witness stand more than 3 years after the fact. If he was off in these estimates by only a matter of minutes, the petition containing McCartney’’ signature, faxed at 6:03 p.m. could have been received before he signed the recognition letter.) Second, while it is true that the petition containing Krahn’s signature did not arrive at headquarters until the following morning, this is not relevant where, as the General Counsel concedes, he signed it on September 23, thereby “objectively” indicating his support as of that date for UDCEA, without regard to whether Raley’s “counted” his signature on that date. Third, there is no reason at all on this record to assume that the petition containing Brazil’s and Abundis’ signatures “probably” was not received until after Abfalter signed the recognition letter. And again, the General Counsel concedes in any case that they signed the petition on September 23. Fourth, I am simply mystified by the General Counsel’s never-explained or legally-supported assertion “those four signatures are not reliable indicators of employee choice.” Finally, and most fundamentally, the General Counsel’s “burden-shift” argument with respect to all four of these signa- tures amounts to nothing more than self-serving bafflegab. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560 Indeed, it represents just one more example, in this case an explicit one, of the many attempts by the General Counsel throughout her arguments on brief, and always without any citation to legal authority, to cast to the “Respondents” the bur- den of disproving a supposed “fact” as to which the General Counsel always bore the affirmative burden of proof by a pre- ponderance.13 And in this instance, the General Counsel’s bur- den-shift contention is especially underwhelming. With respect to precisely the questions presented here, counsel for the Gen- eral Counsel stated during the trial that the “burden shifted” to the Respondents, and I noted in response that her saying so didn’t make it so, and invited her to come up with some other authority than her own say-so. And clearly, she has been unable to do so. Moreover, as Raley’s points out, the General Counsel’s posi- tion here runs entirely against the grain of established Board law as applied to a comparable situation in a Gissel context. See Holiday Inn of Perrysburg, Ohio, 243 NLRB 280 (1979), enfd. denied on other grounds 647 F.2d 692 (6th Cir. 1981). There, the Board affirmed that an authorization card signed by Joyce Auberge on a date prior to the union’s demand for recog- nition but not delivered to the union until after the demand was made was, nevertheless, “a valid designation of the union as of the date of her signature.” 243 NLRB at 291–292, and authori- ties cited. Thus, here, as in many cases noted previously in my decision, the General Counsel’s result-oriented assertions are not simply without support in the law, but they are effectively in conflict with established law, and, worse still, they work invidiously to undermine employee rights established in law. Accordingly, I have no hesitancy in rejecting the General Counsel’s claims as to the four signatures in question. I will add those signatures to the numerator, yielding the updated fraction 349/673 (or 12 more than needed for a “bare” majority of 337). D. Purported Retraction of Laura Woolsey’s Petition-Signature Although Rohnert Park drug clerk Laura Woolsey’s authen- tic signature, entered on the afternoon of September 23, ap- peared on a UDCEA petition in Raley’s hands before Raley’s recognized UDCEA, the General Counsel doesn’t want me to count it as a valid “designation,” but, rather as an “unreliable indicator of employee choice.” Br. at 380–381. Why was it an “unreliable indicator?” Because, according to the General Counsel, Woolsey had already “retracted” her signature by the time Raley’s conferred recognition on UDCEA at about 6 p.m. The General Counsel thus invokes facts which I have discussed in part six, section III,B of the attached decision. As I have found, at 12:49 p.m. on September 23, UDCEA supporter Carol Evans faxed a petition to Raley’s (GC Exh. 54, Bates 751) signed by three Rohnert Park drug clerks other than Woolsey. 13 There is no doubt that, under Bernhard Altmann, supra, the Gen- eral Counsel bore the burden of showing that, at the time of recogni- tion, the allegedly unlawfully recognized union did not, in fact, repre- sent a majority of the employees in the recognized unit. Siro Security, supra, 247 NLRB at 1271–1272; Windsor Castle Health Care, supra, 371 NLRB at 391. And where this is clearly so, how could it be that the “burden shifted to the Respondents” in this instance? Then, sometime before 5:09 p.m. the same day, Woolsey also signed the petition, and, at 5:09 p.m., Evans faxed the petition to Abfalter’s office now containing Woolsey’s signature (Id., Bates 750). (I note further, to round out the factual context, that Wright had already faxed his demand for recognition at 4:55 p.m., and, therefore, the petition containing Woolsey’s signa- ture and Wright’s demand letter must have been printed out on the headquarters fax machine within minutes of one another, but nevertheless about an hour before Abfalter signed and dis- patched the letter conferring recognition on UDCEA. At some other point on the same afternoon, however (almost certainly after Evans had already faxed the second petition to Raley’s at 5:09 p.m., considering the context discussed below), Local 588 supporter Villalva persuaded Woolsey to try to re- tract her signature, and Woolsey then wrote out, signed and handed to Villalva a note stating, “To whom it may concern: I wish to withdraw my signature from the petition for Raley’s Clerk Union [sic].” Villalva then promised Woolsey that he would find out from UDCEA supporter Evans where she had faxed the petition containing Woolsey’s signature, and he promptly went to Evans in the pharmacy cage and obtained from her the destination fax number Evans had used. Neverthe- less, it was not until the following Monday, September 27, at 5:33 p.m., that Villalva actually followed through by himself faxing Woolsey’s note to the number Evans had given him, using a store fax machine to make the transmission. The General Counsel “urges,” vacuously in my view, that “Woolsey’s signature on the UDCEA petition was an unreliable indicator of employee choice[.]” Br. at 380–381. And in her sole attempt to assert legal support for this claim, the General Counsel is required to invoke an “analog[y]” to a “dual card situation,” where, “if an employee signs a card for each of two rival unions, the card cannot be counted towards either union’s majority status because it is not a valid indicator of the em- ployee’s choice of bargaining representative, absent evidence of the signer’s intent.” General Counsel’s Brief at 379, citing Katz’s Delicatessen, 316 NLRB 318, 329–330 (1995), and authorities cited therein. But here, Raley’s was not presented with “dual cards” from Woolsey when it recognized UDCEA. Rather, it was presented only with a single and facially unam- biguous “designation” by Woolsey, running in UDCEA’s favor. Neither is there any evidence that Woolsey had signed an au- thorization card for Local 588 by the time the UDCEA petition containing her signature was faxed to Raley’s or by the time Raley’s recognized UDCEA. Accordingly, the General Coun- sel’s proffered “analogy” to a “dual card situation,” is hope- lessly inapposite. Moreover, in straining for such analogies, the General Coun- sel has again ignored—and collided with—applicable Board law established in cases that are clearly far more analogous to this one than are the proffered “dual-card” cases. Thus, the General Counsel presumably knew that “it is well-established that an authorization card cannot be effectively revoked in the absence of notification to the union prior to the demand for recognition.” Alpha Beta Co., 294 NLRB 228, 230 (1989), and authorities cited at fn. 9. (Moreover, the issue in Alpha Beta was whether the employer could lawfully refuse, in the context of a union’s demand for recognition in a new store pursuant to RALEY’S 561 an after-acquired stores clause, to recognize the union on the basis of a card check. And, in that context, the Board in Alpha Beta borrowed on the above-quoted “ineffective-revocation” doctrine, originally established in cases raising Gissel issues, to determine whether the union had an “actual card majority . . . on the date the demand was made.” Id. at 230.) Here, Wool- sey’s purported “withdraw[al]” was never shown to have been communicated to UDCEA before UDCEA made its demand for recognition. (Even if, arguendo, Villalva’s discussion with Evans could somehow be construed as notice to “UDCEA” that Woolsey wished to “withdraw” her “signature,” this discussion clearly occurred after 5:09 p.m., i.e., not only after Evans had already transmitted the second petition to headquarters, but also after Wright had already faxed-in UDCEA’s demand for recog- nition.) Accordingly, contrary to the General Counsel’s conten- tions, Woolsey’s purported withdrawal must be regarded as wholly “ineffective,” and her prior signature on the UDCEA petition must be regarded as an entirely reliable “indicator of employee sentiment” for purposes of determining UDCEA’s majority at the time of recognition. Therefore, I will add Woolsey’s signature to the working numerator, now yielding the updated fraction 350/673 (or 13 more than needed for a “bare” majority-showing of 337). E. Five Alleged Forged Signatures 1. Overview At issue are the purported petition-signatures of Yreka drug clerks Kevin Stott and Teresa Brown, plus those of Anita Estrada (West Sacramento), Kim Moore (Sacramento #486), and Sharon Shaeffer (Redding). The General Counsel concedes that all of these purported signatures were in Raley’s hands at headquarters before the recognition of UDCEA. The General Counsel seeks a finding that all five purported signatures were forgeries, and, therefore, were not “reliable indicators” that the purported signers desired representation by UDCEA. In attacking the authenticity of these signatures, the General Counsel relies on the opinions given in trial on February 27, 1997, by James Blanco, who does business in Sacramento un- der the name “Blanco Questioned Documents.” I found, and there was no dispute, that Blanco’s opinions were admissible because he was shown to be qualified by training and experi- ence to render an “expert” opinion, i.e., an opinion which may aid the judge in resolving a question of fact which the judge may be ill-equipped to resolve simply by operation of reason, or by reference to the ordinary experiences of laypersons. In substance, Blanco said (with varying degrees of certainty in each case) that he didn’t think the hand that wrote the disputed petition signature was the same hand that wrote the several “time-sheet” signatures furnished to him as authentic examples of the purported signer’s actual handwriting. There is good reason to find on this record that the disputed petition signatures were “table” signatures, i.e., were written (no matter by whom) on a breakroom table or other flat surface, such as a counter. It is undisputed (and independently apparent from credible and undisputed surrounding testimony) that the authentic timesheet signatures used by Blanco for comparison purposes were “wall” signatures. Specifically, it is undisputed that the “exemplars” were, (1) signatures written on a sheet of paper which was tacked or otherwise affixed to a wall in a backroom or breakroom, with the timesheet placed at or above shoulder height on the wall, depending on each signer’s indi- vidual height; and (2) signatures usually written in some haste and without much deliberation by employees as they were leav- ing the store at the end of their work shift. Significantly, how- ever, Blanco was unaware from the information given him when he made the comparisons between disputed petition sig- natures and authentic timesheet signatures that the latter were all “wall” signatures, and that the former were probably all “table” signatures. Moreover, he stated in this regard “that they were probably all [written in] similar situations, I would as- sume.” As detailed below, four of the five disputed petition-signers (all but Moore) were later called as UWRU witnesses. One of them, Shaeffer, readily acknowledged that the disputed signa- ture on the Redding petition was not her own, but she said that she had authorized a coworker to sign it on her behalf. On March 13, 1997, three of the four remaining purported petition- signers (Estrada, Brown, and Stott) were called as UWRU wit- nesses, and each testified unequivocally that their disputed signatures on the petitions were, indeed, their own, that they had written them on a table, and that they had written them on the dates adjacent to their signatures. Significantly, moreover, two of them (Estrada and Brown) then submitted to an in-court experiment, conducted pursuant to the General Counsel’s re- quest, first made during the cross-examination of the first of them, Estrada. In this experiment, they each wrote 10 “table” signatures and 10 “wall” signatures. The reasons for the General Counsel’s request for the ex- periments, the methodological details of the experimental setup worked out thereafter, and the conducting of the experiments themselves, are all recorded in the March 13 trial transcript, as was my cautionary observation to counsel for the General Counsel when she first proposed the experiment, as follows: [A]s you well know, by stepping into this uncertain territory, she [Estrada] may provide exemplars that look a whole lot— when she’s signing on the wall, she may provide exemplars that look a great deal like her time sheet signatures. She may provide sit-down signatures that look a whole lot like her peti- tion signature. So, that’s a risk you take. As further noted below, the experimental results were striking, and clearly not in the way counsel for the General Counsel hoped they would be. (The General Counsel’s brief is mute on the matter of the experimental results. And we never heard back from Blanco during the General Counsel’s rebuttal presenta- tion. And this is so even though one of the General Counsel’s stated reasons for requesting the experiments in the first place was to show the results to Blanco, to see whether Blanco’s previous opinions would change, or merely be reinforced, when presented with 10 examples each of “table” and “wall” signa- tures undisputedly written by Estrada and Stott.) 2. Sharon Shaeffer Obviously I don’t need to rely on Blanco’s opinion that Sharon Shaeffer’s disputed petition signature (GC Exh. 159, Bates 728, p. 1) was not written by the same hand that wrote DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562 timesheet signatures used by him as exemplars of Shaeffer’s signature (Id., pp.2–8). Shaeffer acknowledged that she didn’t sign the petition on which her disputed signature appears, and was at home on September 16, the date appearing adjacent to her purported signature. She testified, however, that, on Sep- tember 16, fellow drug clerk and UDCEA supporter Linda Goodwin had called her at home and told Shaeffer that “she had this petition that had to be signed, did I want my name on it, did I want to sign it, and I told her, ‘Yes, sign my name.’ Shaeffer later recalled that Goodwin had said that there was some ur- gency to getting the petition signed and dispatched promptly. She also recalled, on examination from the bench, that Good- win had also explained that the purpose of the petition was “basically, to get our new union going.” Goodwin, called as a UWRU witness, confirmed that she had thus called Shaeffer, and had received Shaeffer’s authorization to sign Shaeffer’s name on the petition. Shaeffer’s and Goodwin’s accounts were fully harmonious as to surrounding details. Nothing in the de- meanor of either of them indicated to me that they were being less than candid. Nothing in the substance of their harmonious accounts struck me as improbable in all the known circum- stances. Therefore, I credit them that the disputed signature was authorized by Shaeffer, even though not written by Shaeffer. As it turned out, however, Goodwin was not actually the party who then signed Shaeffer’s name on the petition; rather, it was another drug clerk, Wendy Adcock. Thus, as Goodwin and Adcock credibly and harmoniously testified, Goodwin told Adcock that Shaeffer wanted her name on the petition and asked Adcock to write in Shaeffer’s name. Adcock did so, and that is how Shaeffer’s “forged” signature came to appear on the petition. It is apparent that Shaeffer authorized Goodwin to sign her name on the petition. In these circumstances, “Shaeffer’s” proxy-signature must be construed as a “valid designation” of UDCEA by Shaeffer at the time it was written, at the time it was presented to and relied on by Raley’s, and at the time Raley’s recognized UDCEA. See, e.g., Reeves Bros., 277 NLRB 1568, 1603 (1986). Contrary to the General Counsel, I can’t see how it matters that Adcock, rather than Goodwin, did the actual signing pursuant to Shaeffer’s proxy-authorization. Contrary to the General Counsel, I don’t think it affects the validity or the scope of Shaeffer’s authorization that Goodwin only told Shaeffer in general terms over the telephone that the “purpose” of the petition was “basically, to get our new union going.” At the time, there was only one “new union” in the picture, and it was not Local 588. And it clearly doesn’t matter that Shaeffer may not yet have known that the name of the “new union” was UDCEA. It is also clear that Shaeffer wanted to lend her support to getting the new union going. And, con- trary to the General Counsel, I don’t think Shaeffer’s wish to join in the effort “to get our new union going” can be retrans- lated to mean something less than a wish to be represented by “our new union.” Accordingly, I will now add Shaeffer to the numerator as one more drug clerk who had objectively manifested support for UDCEA at the time Raley’s recognized the new union. The working fraction is now 351/673 (or 14 more than needed for a “bare” majority-showing of 337). 3. The weight to be given to the expert’s opinion that the other 4 signatures were inauthentic a. Parties contentions; applicable principles; additional background I have already summarized the basic state of the record. I have an expert who opines that four purported petition signa- tures (beyond Shaeffer’s) were not authentic, but from whom we did not hear further after the General Counsel was permitted to perform the in-court experiments with two of the three drug clerks who affirmatively testified that the disputed signatures were, in fact, their own. I also didn’t hear from one the disputed signers, Moore; and the significance of her absence from the witness stand, if any, is best set aside for now. Let’s focus for now on Estrada, Brown, and Stott, and on what the parties now see as a straight “credibility” contest be- tween them and Blanco. Thus, the General Counsel “urge[s]” (Br. at 376) that I “discredit [the three employees’] testimony and credit the testimony of handwriting expert Blanco.” And Raley’s puffingly asserts (Br. at 246) that “Respondents devas- tated General Counsel’s case by destroying Blanco’s credibil- ity.” I think both parties are wrong in treating this as a credibil- ity contest between Blanco and the three employees: Blanco did not pretend to have firsthand knowledge; he offered an opinion about a fact in the world based on his study of “circumstantial” evidence—particularly the “wall”-signature exemplars he used to compare with the disputed “table” petition signatures. Only the three employees purported to have firsthand knowledge of the same fact in question, and their firsthand accounts do not necessarily raise “credibility” questions, i.e., about the good faith of Blanco’s opinions. Thus, it would be more accurate to say that Blanco’s opinions may raise questions about the em- ployees’ credibility, but not vice-versa. Lawyers sometimes speak with regret about “a perfect cir- cumstantial case spoiled by an eyewitness.” Whether this was such a case depends in part on my assessments of the reliability of the proffered eyewitnesses, Estrada, Stott, and Brown, and in part on my assessments of the reliability of the opinions offered by Blanco. However, one thing is certain: If the “conflicting” versions can be said to have left the record in “equipoise” on the disputed point of fact, the General Counsel necessarily loses for failure of proof-by-a-preponderance. Here, I don’t think the record is in equipoise. First, Estrada, Brown, and Stott each appeared to be testifying candidly and undefendedly, and their recollections of surrounding details were impressive. Moreover, Estrada and Stott, the witnesses on whom I allowed the General Counsel to conduct the experi- ment, submitted to the experiment without any apparent hesita- tion or unease. And, were it not for Blanco’s opinion, I would have had no hesitancy at all in crediting the three employees that the disputed petition signatures were, indeed, their own. By contrast, for reasons amplified below, I am led to believe that Blanco’s opinions, although honestly stated, were the results of a flawed set of premises, namely: (1) that the “wall” (timesheet) signatures he relied on to make his comparisons were suffi- ciently representative of the signatures of the employees in question to make the comparisons valid; (2) that the graphical variances he observed between the petition signatures and the RALEY’S 563 time-sheet signatures were outside the “normal” range of “variation” to be expected when the same person signs his or her name under a normal range of different circumstances. Some well-established principles are usefully summarized here: The Board’s judges are deemed competent to reach con- clusions about the authenticity or inauthenticity of a signature based on the judge’s own comparisons of disputed signatures and undisputed exemplar signatures. Traction Wholesale Cen- ter Co., 328 NLRB 932 (1999), and authorities cited. The Board’s judges are not bound to give controlling weight to the opinion of a witness qualified as an expert, but may disregard the expert’s opinion if the premises on which the expert relies appear themselves to be flawed. Fluor Daniel, Inc., 304 NLRB 970, 971 fn. 10 (1991); H. B. Zachry Co., 319 NLRB 967, 979– 980 (1995). Indeed, as a general matter, “[a] court may con- clude that there is simply too great an analytical gap between the data and the opinion proffered.” General Electric Co. v. Joiner, 522 U.S. 136, 145 (1997). Some further background concerning these matters is also usefully summarized here: During opening statement on August 23, 1996, counsel for the General Counsel stated that a study within the Regional Office of the petitions surrendered by Raley’s in April 1995 had caused the General Counsel to be- lieve that, “a number of the petition names were signed by the same person.” And this belief, counsel continued, “raises the question as to the authenticity of the other signatures. And we intend to have a handwriting expert look at the signatures and compare them to exemplars. The timesheets that we just re- ceive[d], and we subpoenaed other exemplars in the supple- mental subpoena that we issued to Raley’s.” The “supplemental subpoenas” referred-to here called for production of, inter alia, the employment applications com- pleted by all of the (350 or so) signers or purported signers of the UDCEA petitions relied on by Raley’s to confer recogni- tion. Raley’s petitioned to revoke these subpoenas, arguing burdensomeness, overbreadth, and invasion of employee pri- vacy. The issues became ripe for argument and ruling on Sep- tember 19, 1996, day four of the trial. Against the overbreadth objection, the General Counsel argued that whatever expert the General Counsel might select would need not only the employ- ees’ signatures on the employment applications, but other ex- amples of the employees’ handwriting, such as the narrative handwritten sentences that would be expected to appear on the applications. The General Counsel proposed alternatives, how- ever; such as additional specimens of employee timesheet sig- natures. Raley’s, citing the burdensomeness of digging-out multiple examples of the timesheet signatures of 350-plus em- ployees, was unwilling to make that alternative deal, and in- stead sought a ruling on its petition to revoke the subpoena(s) seeking employment applications. As to the job applications, I was unpersuaded by Raley’s burdensomeness arguments, but found merit to its claims that the subpoenas were unnecessarily overbroad and needlessly invaded employee privacy in requiring disclosure of full em- ployment applications. Moreover, considering the General Counsel’s statement that all that was needed were enough ex- amples of employee handwriting on the applications to assist the expert, I ruled in the end as follows: . . . the subpoena will not be revoked so long as it is under- stood that the respondent, when furnishing job applications, may delete or otherwise expurgate all but one sentence in the applicant’s writing. The respondent will have the option of deciding what that is. So long as the signature on the job ap- plication is produced, and a sentence in the hand of the appli- cant appears in the job application. Following this ruling, Raley’s eventually agreed to the Gen- eral Counsel’s alternative proposal that Raley’s produce addi- tional specimens of timesheet signatures to be used as exem- plars for an expert comparison. And, consequently, the General Counsel did not pursue access to employment applications (which were probably “table” writings) as contemplated by my trial ruling. And thus it was that Blanco, the expert eventually engaged by the General Counsel, relied (without knowing it) on “wall” signatures (timesheets) for purposes of arriving at an opinion about the authenticity of the signatures on the petitions (which, although he didn’t know it, were “table” signatures). b. Experimental results; my opinion; related inferences After comparing the 10 “table” and “wall” signatures each furnished by Estrada and Stott during the trial experiment with the counterpart disputed petition signatures and timesheets furnished for Blanco’s comparisons, my opinion is that substan- tially the same variances appear between “table” and “wall” signatures in the experimental sets as are apparent in the sets used by Blanco. (The similar variances are especially apparent in Stott’s experimental set, revealing almost precisely the varia- tions which expert Blanco had noted as reasons for concluding that Stott’s timesheet [“wall”] signatures did not “match” his purported petition [“table”] signature. This clearly suggests to me that Blanco’s opinions, (1) were skewed by his apparent unawareness that the exemplars he relied on were “wall” signa- tures whereas the disputed petition signatures were “table” signatures; and, in any case, (2) did not sufficiently take into account in his assumptions about normal ranges of variation the dramatic variances that can appear between a “table” signature and a “wall” signature, especially where the “wall” signature is written on a timesheet tacked to the wall at or above the shoul- der height of the signer, and, to boot, the signer is in a hurry to get home at the end of his or her work shift. In addition, I note that counsel for General Counsel has not chosen on brief to venture her own opinion about what the ex- perimental results seem to show. And neither did we ever hear back from Blanco at the rebuttal stage concerning whether or not he would adhere to his previous opinions in the light of the experimental results. Rather, ignoring the matter entirely, the General Counsel now urges, simply, that I “discredit [the em- ployees’] testimony and credit the testimony of handwriting expert Blanco.” All of this suggests to me, in turn, one or more of the following probabilities: (1) The General Counsel, inter- preting the experimental results the same way I do, thought it best not to mention the matter again, and certainly not to risk soliciting Blanco’s new opinion in the light of the experimental results; or (2) the General Counsel did solicit Blanco’s opinion in the light of the experimental results, but received an unfavor- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564 able one, and, therefore, did not recall Blanco during her rebut- tal presentation. c. Authenticity conclusions My ultimate conclusions are as follows: The General Coun- sel has not sustained the prosecution burden of proving by a preponderance of the credible evidence in the record as a whole that the petition signatures of Estrada, Brown, or Stott are inau- thentic. My conclusions are the same with respect to Moore’s signature. However, these are based more particularly on my previously-expressed doubts about the reliability of Blanco’s opinions in all the circumstances. Nor do I draw any inferences one way or another from Moore’s nonappearance as a witness. There is no basis in the record for finding that Moore was not “equally available” to all parties; accordingly, no particular party can suffer any adverse inference from the failure to pre- sent his testimony. These conclusions require me to add the four petition signa- tures of Estrada, Brown, Stott, and Moorer to the numerator, yielding the final fraction for majority-counting purposes of 355/673 (or 18 more than needed for a “bare” majority-showing of 337). IV. FINAL TALLY Based on the foregoing, I find that when Raley’s recognized UDCEA, 355 drug clerks in a recognized unit comprised of 673 drug clerks had objectively manifested their wish to be repre- sented by UDCEA.