Glover Bottled Gas Corp.

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glover Bottled Gas' Corp. and Local 282, Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of -America and Wendy Gilner New York -Propane Corp. and Local 282 Interna- tional Brotherhood - of Teamsters, Chauffeurs; Warehousemen and Helpers of America - Glover Bottled Gas Corp., Vogel's Inc., New York Propane Corp., Synergy Group, Inc: and Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 29-CA-9116, 29-RC-5495, 29- CA-9764, 29-RC-5493, 29-RC-5494, and 29- CA-9811 11 June 1985 DECISION, ORDER, AND DIRECTION ' OF SECOND ELECTIONS - ` BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 5 August 1983 Administrative Law Judge D. Barry Morris issued the attached decision in Case- 29-CA-9116.1 The Respondent filed. exceptions, and a supporting brief. . - On 2 December 1983 Judge Morris issued the at- tached decision in Case 29-CA-9764.2 The Re- spondent filed exceptions and a'brief. - ' - On 10 September 1984 the Board remanded the above-entitled proceedings to Judge Morris in order that he might further consider certain credi- bility resolutions.3 The General Counsel filed, a brief on remand to the_': judge. On, 29 November- 1984 Judge, Morris issued -the attached supplemen- tal decision: The Respondent filed exceptions and a brief. The Board has considered the decisions and the records in light of the exceptions and. briefs and -has decided to affirm the judge's Tulings,4- finding, 5, i This set of cases includes Cases 29-CA-9116, 29-RC-5493. 29-RC- 5494, and 29-RC-5495 Case 29-RC-5493 concerns 'the -10 'September 1981 election conducted at New York Propane Corp ; located in Med= ford, New York, Case 29-RC-5494 concerns the 11 September 1981,elec. tion conducted . at New York Propane Corp, located in Farmingdale, New York, and-Case 29-RC-5495 concerns the 11 September. 1981 elec- tion conducted ai Glover Bottled Gas Corp ; located in' Patchogue, -New' York 2 This set of cases included Cases 29-CA-9764 and 29-CA-9811 3 The Board notes that these cases have been consolidated for consid- erations of economy and efficiency and because the cases have related issues 4 Chairman Dotson notes that in finding, that the employee interrogal tions, ' conducted by the" Respondent's attorneys on 4 June' 1983; to-be a violation of Sec 8(a)(1)-he^_has looked to the totality'of 'the'-circutn= stances„ including . but not limited to_ the fact .that the employees, ques, tioned knew ,that Wendy Gilner had been interrogated by the Respond- ent's attorneys the night of 3 June and that she had been fired the morn ing of 4 June Anserphone, Inc v. NLRB, 632 F 2d 4 (6th Cir 1980) See also Retired Persons Pharmacy v NLRB, 519 F 2d 486 (2d Cir 1975) 5 The Respondent has excepted to some of the judge's credibility. find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all and conclusions6 in Cases 29-CA-9116, 29-RC- 5493, 29-RC-5494, and 29-RC-5495; the judge's rulings, findings, and conclusions in Cases 29-CA- 9764 and 29-CA-9811, as modified;7 ^ and the judge's supplemental decision, and to adopt the recommended Orders.8 -ORDER The National Labor Relations - Board adopts the recommended Orders of the administrative law judge and orders that the Respondents , Glover Bottled Gas Corp., Synergy Group, Inc., New York Propane Corp., and Vogel's Inc., Medford, Farmingdale, and Patchogue , New York, their offi- cers, agents, successors, and assigns, shall take the action set forth in the Orders. 'IT IS ORDERED that the elections conducted on 10-and 11 September 1981 in Cases 29-RC-5493 and 29-RC-5494 be set aside and these cases -are severed and remanded to the Regional Director for Region 29 for the purpose of scheduling ' and con- the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 6 In adopting the judge's findings that Supervisor Burke's repeated questioning of employees Nannery and Purchia violated Sec 8(a)(1) of the Act, we have applied the rationale set 'forth in Rossmore House, 269 NLRB 1176 (1984) ' - - _ 7-Inasmuch as the Respondent's discharge of Supervisors Gilner,and Burke independently violated Sec 8(a)(1) of the Act , we find it unneces- sary to considei whether the Respondent's conduct also violated Sec 8(a)(4) See Amason, Inc , -269 NLRB 750 (1984); see fn 2 and cases cited therein In reaching this decision , we do not find it necessary to rely on the judge's citation -of General Nutrition Center, 221 - NLRB 850 (1975) In adopting the judge's recommendation that the elections be set aside in Cases 29-RC-5493 and 29-RC-5494, we note that two'of Glover Bottled Gas Corp's 'employees credibly testified-that before the election they told' employees at the Medford and Farmingdale facilities that Lor- raine Lipynski and Mae Nannery were fired An employee at, the Med- ford facility credibly, testified that he knew before the election that Li- bynski and Nannery had been fired -"William'Kampe, the assistant shop steward at Glover Bottled Gas, tes- tified. Q Did you have occasion to make any comments to the employ- - ees at Medford about the discharges of Mae Nannery and Lorraine Libynskt? A They were pretty aware of it You know, they knew when-it happened, and they - JUDGE MORRIS How.do you know that . they were aware of, it? THE WITNESS They told me They said we understand Mae and Lorraine were fired , and this and that We discussed it Q. [D]id -you speak to those employees at Farmingdale, 'the me- i chanics and the. porters; about Lorraine Libynski" , A. Yes They knew Lorraine She had worked in Farmingdale previously JUDGE MORRIS What did you tell them9 THE WITNESS I said that two girls had been discharged over at Glover for what I=all I could 'see of it was because of Union activi- ty, i Thus, the employees at Medford and Farmingdale had knowledge of the Respondent's unlawful conduct of discharging employees Mae Nan- nery and Lorraine Libynski Therefore, the Union's Objection 2, which relates to the allegations of unfair labor practices in Case 29-CA-9116, will be sustained in Cases 29-RC-5493 and 29-RC-5494 275 NLRB No. 96 GLOVER BOTTLED GAS CORP. ducting- a second election in each case a such time as he deems the circumstances permit a free choice in the issue of representation. IT IS FURTHER ORDERED that Case 29-RC-5495 be severed from this consolidated complaint and remanded to the Regional Director; that the ballots of the employees found herein to be valid be opened and counted by the Regional Director in accordance with the Board's Rules and Regulations and a revised tally of ballots issued and served on the parties. In the event the Petitioner has received a majority of the valid ballots cast, the Regional Director shall issue the appropriate certification of representative. In the event the Petitioner has not received a majority of the valid ballots cast, IT IS FURTHER ORDERED that the election con- ducted on 11 September 1981 be set aside. The Re- gional Director shall conduct a new election when, in his discretion, a fair and free election can be held. [Direction of Second Election omitted from pub- lication.] DECISION STATEMENT OF THE CASE D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in New York City on "various dates beginning June 7, 1982, and ending October 12, 1982. On a charge filed on August 21, 1981,1 a complaint was issued on October 23 alleging that Glover Bottled Gas Corp (Respondent or GBG) violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act. (the Act) Respondent filed an answer denying the com- mission of the alleged unfair labor practices. • On petitions filed by Local 282, International Brother- hood of Teamsters, Chauffeurs, Warehousemen. and Helpers of America (the Union) on July 23 and,24, 1981, and pursuant to Stipulations for Certification Upon Con- sent Election, elections were held on September 10 in a unit of all full-time and regular part-time truokdrivers' and yardmen of New York Propane Corp. (NYP) em- ployed at its Medford location (Case 29-RC-5493); on September 11 in a unit of all full-time and regular part- time mechanics and porters of NYP employed at its Farmingdale location (Case 29-RC-5494): and on Sep- tember 11 in a unit ' of all full-time 'and regular part-time office clerical 'employees, of GBG- employed at its Pat- chogue location (Case 29-RC-5495).2 ' On September 17 the Union filed timely objections to Respondent's conduct' affecting all three ^ electiohs. On the same day Respondent filed timely' objections to the conduct of the Union affecting the results of the election 1 p11 dates are in 1981 unless otherwise specified 2 In Case 29-RC-5493 the tally was 'one for, and two against; the Union, there was one challenged ballot, an insufficient number to affect the results In Case 29-RC-5494 the tally was none for, and four against, the Union, there were no challenged ballots In Case 29-RC-5495 the tally was five for, and five 'against, the Union, there' were, three chal- lenged ballots, a sufficient number to affect the results 659 in Case 29-RC-5495 . On November 10 the Regional Di- rector for Region 29 issued - his Report on Challenged Ballots and Objections. The Regional Director ordered that a -hearing be held on the challenges of two ballots, on the Union's Objection 2 and on Respondent 's Objec- tions 2 (in part) and 3 . The cases were consolidated for the purpose of hearing, ruling, and decision by an admin- istrative law judge. The parties were given full opportunity to participate, to produce evidence, to examine and- cross -examine wit- nesses, to argue orally, and to file -briefs . Briefs were filed by the General Counsel and Respondent.3 On the entire record of the case, including my obser- vation of the witnesses, I make the following FINDINGS OF FACT I.'THE BUSINESS OF RESPONDENT Respondent, a New York corporation, with its princi- pal office and place of business in Patchogue, New York, is engaged in the sale and distribution of propane gas and related products. During the 12 months preceding the is- suance of the complaint, Respondent purchased goods and materials valued in excess of $50,000 from suppliers located outside New York State. Respondent admits that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and I so find. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES The issues in this proceeding are: (1) whether' Synergy Group, Inc., GBG, NYP,, and Vogel's Inc. constitute a single integrated business enterprise and a single employ- er within the meaning of the Act; (2) whether GBG issued disciplinary warnings, refused increases in pay, promised benefits, and :terminated several employees in violation of the Act; (3) whether a GBG supervisor. in- terrogated employees ' concerning their union activities; (4) whether GBG directed one of its employees to sur- veil union meetings; (5) whether the Union solicited the support of supervisory personnel; (6) whether the Union intimidated, employees. with threats of physical violence; (7) whether counsel for the Board engaged in prosecuto- rial misconduct; and (8) whether GBG employees were unlawfully interrogated by. counsel for, Respondent. A. Single Employer' Vogel's, Inc., a New York corporation, with-its princi- pal office and place of business at 175 Price Parkway, Farmingdale, New York,'is engaged 'in the sales, servic- ing, and leasing, of- forklifts and other material-handling equipment. NYP, a New York corporation, with its prin- cipal office and;place'of business also at 175 Price Park- way, Farmingdale, is engaged in the wholesale and retail The'General Counsel's brief was limited to the issue of prosecutorial misconduct 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fuel conversion of motor' vehicles and sells propane gas to both wholesalers and residential customers. Synergy Group, Inc., a New York corporation, with its principal office and place of business also located at 175 Price Parkway, Farmingdale, is the parent corporation of GBG,.NYP, and Vogel's. Daniel Shientag, the general counsel of the parent and its subsidiaries, testified concerning the officers and di- rectors of the various corporations. With respect to Syn- ergy Group, Inc., Sherman C. Vogel is president; Robert G. Hoffman is executive vice president; Jeffrey K. Vogel and Jonathan M. Vogel are vice presidents; and Steven A. Vogel is vice' president and secretary. The members of the board of directors are Sherman, Steven, Jeffrey, Jonathan, and Jeanette Vogel. The officers of GBG are John P. Russell, president; Robert Hoffman, vice presi- dent; Jeffrey, Steven, and Jonathan Vogel, vice presi- dents; Joel Garey,, vice president; and Sherman Vogel, secretary. The officers of NYP are John Russell, president; Jona- than, Jeffrey and Steven Vogel, vice presidents; Robert Hoffman, vice president; Sherman Vogel; secretary; -and Joel Garey, assistant secretary. The boards of 'directors of both GBG and NYP consist of Sherman, Steven, Jon- athan, and Jeffrey Vogel. The officers of Vogel's' Inc. are Sherman Vogel, president; Steven, Jeffrey, and Jona- than Vogel, vice presidents; Robert Hoffman, executive vice president; Jeanette Vogel, secretary; and Joel Garey, assistant secretary. _ Vogel's board of directors consist' of 'Sherman, Steven, Jonathan, Jeffrey, and Jea- nette Vogel. The outstanding stock of the- parent-is owned by the five Vogels. Diane Geller administers the medical plan for the parent and all of its subsidaries. Garey testified that Geller is also corporate 'administrator for GBG, NYP, and Vogel's. She is involved in.the `hiring and firing of employees of the three subsidiaries. Garey•also testified that he is involved in the management of the parent, GBG a,iid NYP, and that Russell is in charge of oper- ations at ;all- the locations. In addition, Joseph Brumell, corporate controller, was responsible for the financial records-of the three subsidiaries and Neal' Baselice, • credit manager, handled corporate collections for GBG, NYP, .and Vogel's. I . - Ralph Kendrick, a GBG employee and shop steward for the 'drivers, credibly testified that "problems like people getting discharged, problems with money :. . people not being paid raises on time" were - brought to Russell and Steven Vogel. In addition, contract negotia- tions were held with Sherman and Steven Vogel,,Rus- sell, Geller, and Shientag. Kendrick further 'testified, which testimony was supported by documentary evi- dence, that as a GBG employee he made deliveries for, and,did service and repairs on, NYP accounts. He fur- ther credibly testified that since, September 1979 GBG's trucks were filled at NYP's premises and that occasional- ly GBG, drivers. use,NYP, trucks and vice versa. ;Ken- drick also credibly testified that GBG; employees, do,-°t99 percent of the service work" for NYP customers and on occasion he has performed repairs for Vogel's. In addi- tion, Wendy Gilner, another GBG employee, credibly testified that she released gas tickets for both GBG and NYP and that she received telephone calls from custom- ers of both subsidiaries. - The Board has held that, in determining whether sev- eral corporations constitute a single employer, it is neces- sary to examine four criteria. interrelation of operations, common management, common ownership, or financial control, and centralized control of labor relations. Soule Glass & Glazing Co., 246 NLRB 792, 794 (1979), enf. granted in part and denied in part on other grounds 652 F.2d 1055 (1st Cir. 1981). Applying these criteria, it is clear that Synergy Group, Inc. together with its above- named subsidiaries constitutes a single employer. With respect to common ownership or financial con- trol, each subsidiary is owned by Synergy, which in turn is owned by the five Vogels. As to common manage- ment, the officers and directors of the parent and each of the subsidiaries are substantially identical Concerning centralized control of labor relations, grievances were brought to.the attention of Russell and Steven Vogel. Contract negotiations were held with Sherman and Steven Vogel, Russell, Geller; and Shientag These indi- viduals were involved in the management of the parent and each of the subsidiaries. Geller, the corporate admin- istrator for the parent and the subsidiaries, was involved in the hiring and firing of employees. With respect to the interrelation of operations, credit' management was done centrally and health and medical programs were adminis- tered centrally. Employees of one subsidiary serviced ac- counts, made deliveries and_repairs for customers of an- other subsidiary. Since 1979 GBG trucks were filled at the premises of NYP. Accordingly, based on the above, I find that Synergy Group,'Inc.; GBG, NYP, and Vogel's, Inc. constitute a single employer within the meaning of the Act. B. Libynski Lorraine Libynski was hired by GBG in February 1980. ' A month later she was transferred to work at Vogel's in Farmingdale. During the spring of that year organizing on behalf of Teamsters' Local 707 began at Vogel's and Libynski was involved in that organizing In July, - Libynski was transferred back to GBG and on August, 1, 1980,. she was discharged. In that connection a charge was -filed and a complaint was issued alleging that the discharge violated Section 8(1) and (3). of the Act. • That matter was settled on April 27, 1981. In November 1980 Libynski received a. phone :call from Brumell,, corporate controller, who offered her a -position at GBG,. which she accepted. Libynski, testified that Bru mell told her that she ,would receive a ;raise in February _1981, the anniversary of, when she was first .employed., Libynski testified that in January 1981 she asked Gene Heyum; the GBG office manager, about the raise and he stated that "he didn't know of any such a' raise, but he would look into ,it." She further testified that she asked Garey about the, raise, but "he didn't want to -discuss my raise at all, he didn't want to be bothered with it " She further testified that in February she spoke to Brumell about the raise and 'he told me he would look into it and they kind.of just all laughed at me." GLOVER BOTTLED GAS CORP On February 21 'Libynski received two written warn- ings. One related to taking extra time for lunch after punching the timecard and the second warning related to unauthorized personal phone calls. In May, Garey asked Libynski if she would be willing to accept the position of telephone operator, which posi- tion she accepted in June. Libynski credibly testified that when Garey offer her the position he told her that "he felt I had a good rapport with the customers, and that I handled myself well on the phones on Saturdays, that Steven Vogel liked when I did the operator's job." Soon after Libynski became the operator, the telephone system was changed and for several weeks there was a good deal of confusion concerning the use of the new system. Libynski credibly testified that she was never reprimand- ed by management in regard to her performance as tele- phone operator. During. the last week of June a fellow employee, Mae Nannery, approached Libynski and "wanted to know a little background about a union, starting a union, because she knew that I had been involved with the union in Farmingdale." On July 6 Libynski signed an authorized card on behalf of Local 282,-after which Libynski spoke to several other employees expressing her sentiments in favor of the Union. On July 24, Libynski received the check in satisfaction of the settlement agreement entered into in April. Sever- al days later, on July, 27, Libynski was called into Heyum's office, at which time Heyum told her that she was fired. She asked him why, and he replied "it was for not using the.telephone system to its fullest potential and for incorrectly punching, my timecard " When she asked him to explain his action, he replied, "That's all I can tell you." A memorandum written by Garey, dated July 20, states that Libynski's transfer to switchboard receptionist "has been a disaster." The memo mentions that Garey discussed with Libynski "her sloppy appearance and re- moving bobby pins from her hair during Company time." The memo continues, "I also spoke to her -about punching in in the morning and then going out for coffee and cake on Company time." Finally, the memo states, "if this behavior continues, I'll have to terminate her." When asked specifically for the grounds of Libynski's discharge, Garey testified, "Lorraine Libynski was termi- nated because of failing to punch out . . upon leaving the building, unacceptable behavior at the switchboard and her inability to perform properly " Garey testified that there were continuing complaints going back to November '1980 concerning Libynski's un- authorized use of the phone, body odor, and unkempt appearance. He -conceded, however, tliat just prior to her discharge her personal appearance had improved. Simi- larly, William Sheridan; assistant' to ;Garey -and GBG office manager,' testified that'Libynski was 'a "terrible" employee from sometime "before" April 1981. 1 Elizabeth Turchia credibly' testified that'Ray Bianco, a GBG manager, spoke to her in August 1981 at which time he referred to Libynski as an "instigator" and "trou- blemaker " Similarly, Wendy -Gilner .'credibly testified that Garey told her "Lorraine Libynski., was fired' be- 661 cause of union action he knew that was taking place in the corporation." - 1. Failure to grant raise and disciplinary warnings With respect to the allegation that in February 1981 Respondent failed to grant Libynski a raise to which she had previously been promised, the General Counsel has not sustained his burden of proving a violation. In the first place, I do not believe that the General Counsel has sustained his burden of showing that Libynski had been promised a raise. Nevertheless, even if such a promise had been made it has not been shown that the failure to give-the raise in February was due to union activities. Libynski's union activities with respect to Local 282 began in June 1981. While Libynski had been involved in organizing activity for Local 707 in the summer of 1980, no connection has been made between that activity and the alleged failure to grant a raise in February 1981. Ac- cordingly, such allegation is dismissed. Similarly, the complaint alleges that the two disciplinary warnings given in February were because of Libynski's union ac- tivities. Again, no such showing has been made. Accord- ingly, the allegation is dismissed. 2. Discharge With respect to the allegation that Libynski was dis- charged in July 1981 because of her union activities, I find that the General Counsel has sustained his burden of proof. Libynski signed an authorization card on July 6 and thereafter spoke to several employees in favor of the Union. While Respondent has advanced several defenses for the discharge, I find these reasons to be pretextual. Thus, Garey complained about Libynski's personal Ap- pearance, yet he conceded that her appearance improved -after she became telephone operator. Similarly, Garey testified that the complaints concerning Libynski's ap- pearance and performance went back as far as November 1980, yet she was not discharged until July 1981, soon after the beginning of her activities on behalf of Local 282. In the same vein Sheridan testified that Libynski was a "terrible" employee as far back as early 1981, yet she was not discharged until July. Finally, Purchia credi- bly testified that a member of management referred to Libynski as an "instigator" and "troublemaker" and Gilner credibly testified that Garey told her that Li- bynski was fired because of her union activities Accord- ingly, I find that Libynski was discharged for her union activities on behalf of Local 282, in violation of the Act C. Nannery - 1. Denial of wage increase Mae Nannery began her employment with Respondent -'on August 3, 1979. She testified that in May 1981 she asked Garey for a raise, to which he replied, "Let me see what I- can do for you." During the last week of June, Garey requested that Nannery work on July 4. She ex- plained to him that she had a family gathering planned and, accordingly, she refused to work. He told her that if .she did not work there would be "no pay raises." She further testified: 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And then after the 4th of July weekend, he came in like around the 15th or 16th he came in and he said, I had the raises right on Sherman 's desk and it was all approved and everything, but I'm calling him right now and telling him to tear it all up, you can't work July 4th and do a favor for me, he says, don't you ever ask me for another thing. Garey corroborated Nannery's testimony. He testified that in June he recommended a' raise for Nannery: He further testified that GBG was planning a sale on'July 4 and he required that Nannery work that day. After she failed to report for work on July 4 he testified that "I sat down right at my desk and I wrote this memorandum to recall the wage increase I had recommended her for " Dolores Burke, Nannery's supervisor, credibly testified that Garey "was angry because she didn't work, July 4, she didn't cooperate, and he said, if she doesn't cooper- ate with me, I'm not cooperating with her, she's just not getting any raise." I find that the General Counsel has not sustained his burden of showing that the denial of Nannery 's raise in July 1981 was due to her union activity. I find that Garey decided to retract the raise when Nannery did.not report for work. on July 4 and that the reason the raise was retracted was because she did not report for work. Accordingly, the allegation of the complaint is dismissed. 2. Discharge After the July 4 episode, Nannery decided' to talk to Kendrick to- obtain union authorization cards. She ob- tained the cards and began distributing -them around July 6.. Trypaulik, Rhodus, and Purchia each testified that they received authorization cards from Nannery on July 6. On July 16 Garey called Nannery into his office and said, "What's going on, you girls up to something. Every time I come in you're whispering something." About the same time, Burke asked Nannery, "Well, are your girls going union or not?" During the latter part of July Nannery inquired of Burke as to the number of floating holidays she was enti- tled to. Burke told Nannery to call Pat, who was the head of the payroll department in Farmingdale Nannery called Pat and was told that she was entitled to four floating holidays. Nannery had been under the impres- sion she was entitled to six- floating holidays and was somewhat upset over the conversation. Some of the em- ployees- overheard Nannery's conversation with Pat. .,On July 27 Nannery went to, a local 7-Eleven food store to pick up .provisions for lunch without punching out., She credibly-testified that Burke, her supervisor, had approved , this. This testimony was corroborated by Burke. On July 18 Garey advised Nannery that she was being terminated because she failed to punch out the day before and because she called the Farmingdale office to inquire concerning her floating holidays. - Burke, -who appeared to me to be a particularly, credi- ble witness, testified that she realized, around the end of June and the beginning of July, that Nannery and some of the, employees were going to organize. She credibly testified that she had a conversation with Sheridan, the office manager, at which time she told him, "I think the girls are unionizing , in fact, I'm almost sure they are." Sheridan suggested to Burke that she call Garey to give him the information. Burke credibly testified that during the first week of July she called Garey at home and told him, "I think the girls are unionizing." Garey asked Burke which girls were unionizing, to which she replied, Nannery, Libynski, and Trypaulik. Burke further credi- bly testified that during the second week of July she told Garey, "The girls are really giving me a hard time, I don't know-what's going on. He said to me, don't worry about it, they're getting terminated anyway." On July 28 Garey wrote a memorandum, in which he stated. Therefore I told Mae I was terminating her because of her poor attitude, failure to stop leaving the premises without punching out despite several warnings, and spreading false rumors to disturb the other employees. - When asked what were the events that led to Nannery's discharge, Garey testified, as follows: Badmouthing the company . . . getting into temper tantrums, failing to punch out when leaving the company premises or not having the approval of a supervisor, spreading lies and rumors to other em- ployees in her attempt [to] incite and aggravate them. Sheridan testified that from the. end' of 1980 Nannery had been "generally uncooperative, not willing to extend herself in any way , at times a troublesome 'employee." He further testified that Nannery was "always a terrible employee " As noted earlier, Purchia credibly testified that Bianco referred to both Nannery and Libynski as "instigators." Also, Gilner credibly testified that Garey told her, "Mae Nannery had been discharged because of her 'union action in the company." . I find that the General Counsel has sustained his burden and that Nannery was discharged because of her union activities. The reasons given by Respondent for her discharge were clearly pretextual. With respect to her obtaining provisions at the 7-Eleven without punch- ing -out, - both Nannery and her supervisor , Burke,,testi- fted that Burke gave Nannery permission to do so.. As, to spreading false rumors concerning the floating holidays, Burke told Nannery to call Pat in Farmingdale to find out how many floating holidays she' was entitled to. Pat told Nannery that she was entitled to, 4, days. In this con- nection Trypaulik credibly testified-, , . _ And I overheard the conversation • that` -she was having with'-the main office about holidays;' We were under the impression ihat, we had. six holidays and' she was being told that 'we- had only four. So when she finished the conversation on the phone, I had asked her, because I had overheard her, how many holidays it- was, whether, it. was four. Pr six, and she had told me that they were saying four. GLOVER BOTTLED GAS CORP Trypaulik testified that Nannery spoke in a "normal voice" when she spoke about the floating holidays. ' Nannery was the prime organizer among the clerical employees. During the second week of July Garey told Burke, concerning Nannery and others, "Don't worry, they're-getting terminated." This is in line with Garey's statement to Gilner after the termination that Nannery was terminated because of her union activities. It is clear, therefore, and I so find, that Nannery was discharged be- cause of her union activities, in violation of the Act. D. Burke 1. Supervisory status Dolores Burke started working for Glover Bottled Gas Service in January 1978 and was transferred to GBG in June 1979. In February 1980 she became GBG's office manager. Counsel- for Respondent stipulated that Burke was supervisor, within the meaning of the Act, in her position as office manager. Burke credibly testified that in February 1981 Garey approached her and told her that a new sales department was opening and offered her the position of sales manag- er. Burke accepted the position as sales manager, super- vising two employees, Nannery and Purchia. Burke cre- dibly testified that she'retained the same authority in her position as she had had as office manager. She remained on a straight salary, did not punch a timeclock, and took an hour for lunch. In addition, when employees request- ed time off, such requests were brought to Burke. Burke recommended the rehiring of Purchia and assigned work to the employees under her supervision. Nannery corroborated Burke's testimony. She testified that, in March, Garet' told her that Burke was her imme- diate supervisor. Burke assigned her work and approved days off. Gilner also credibly testified that Burke as- signed work to Nannery 'and Purchia. Similarly, Trypau- lik credibly testified that Burke assigned work and Pur- chia credibly testified that she was recommended by Burke to be rehired; that Burke was, her supervisor and assigned work; and that she asked Burke for time off. In addition, the record contains memoranda showing that on' August 1 and 25 Denise Dempsey requested days off from Burke. Finally, the Excelsior list provided by Re- spondent did not include Burke's name, another indica- tion that she was considered a supervisor. Accordingly, it,is clear from the above, and I so find, that during the summer of 1981 Burke was a supervisor, within the meaning of the Act. 2. Interrogation by Burke Nannery credibly testified that about July 16 Burke asked her, "Are you girlsdoing-union or not?" Similarly, Purchia credibly testified, that, during July, Burke "came in and sat down next to e and she said, are you joining the, union?"' This` testirimony"'w'as` not controverted. Indeed, Burke 'corrobo'rated ^ the testimony' and testified that sh6, -told Nay: You're really going to do it, right, you're really going' to unionize. `She said, what are- you talking about' I said, I can see it, you're really going to do 663 something. She said, no I'm not, I don't know what you're talking about. I said you're going to union- ize. It is clear, and I' so find, that Burke asked Nannery and Purchia whether they were going to unionize. Inas- much as Burke was a supervisor, within the meaning of the Act, this constitutes unlawful interrogation. 3. Demotion of Burke Paragraph 21 of the amended complaint alleges that in September 1981 Respondent changed the position of Burke from a supervisory position to that of a regular employee, in violation of the Act. Burke credibly testified that on September 17: Joel Garey called me into the office, Gene Heyum's office, and he told me that Diane Geller just re- ceived a letter from the Labor Board stating that May Nannery was pressing charges because I was fully aware of the unionizing and because I was -management she was pressing charges, that they knew about her unionizing before she got fired. Joel Garey then told me I want you to tell the Labor Board that you thought they were kidding and that you are not management. Burke testified that after September the employees did not bring -her time off requests and did not bring her work-related problems. However, she also testified that no one ever told her that she no longer had the authority over the employees. Burke testified that she remained on salary, did not begin punching a timeclock, and retained a longer'lunch period than nonsupervisory employees. Based on the above, I believe that the General Coun- sel has not sustained his burden of showing that in Sep- tember Burke's position changed from a supervisory- po- sition to that of a regular employee Respondent's regu- lar employees punched timeclocks, were paid on an hourly basis, and were entitled to only 30 minutes for lunch. Burke's benefits in this regard were not dimin- ished. Accordingly, the allegation is dismissed. E. Trypaulik 1: Supervisory status Mary, Trypaulik began her employment with GBG on August 1, 1979: She worked in the collection depart- ment, handling the larger commercial accounts. On May 15, 1981, Joe Avalone, manager of the collection depart- ment, resigned and was not replaced.4 Inasmuch as Try- paulik was the senior employee in the department, other employees began coming to her with their problems., Trypaulik testified that during July 1981: Joel Garey had come to me and asked and said he wanted me to continue doing the same job I was doing, but he also wanted me to be the head of the collection department. But I told him that I already 4 Resignation letter-of Joseph Avalone dated May 15, 1981, submitted as a posthearing exhibit, is admitted into evidence as G C Exh 51 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do that already, and he said, no, that he wanted me to be the head, to be the supervisor there. And I told him that I really did not want it, the position. I didn't like titles. I don't like titles. I didn't feel it was necessary and I didn't feel I was a supervisor. I told him that I wouldn't refuse to help the girls as I've always done, but I just-I didn't want that po- .sition. - - . I - After that conversation, Garey called the two other employees in the collection department, Mary Rhodus and Nadia Noto;'into his office. Trypaulik testified: Joel told the girls from then on that they were to go to me for any questions or problems, and then he said I was their supervisor. And I told him, I said "wait a minute; I told you, I have no title and I'm not a supervisor." Trypaulik testified that nothing changed with regard to her work duties after the conversation with Garey She testified that she did not hire, fire, or discipline em- ployees, did not approve time off, and did n ot assign work. Trypaulik further testified that in the beginning of Sep- tember, before the election, she was invited by Garey to attend a meeting . She testified: When I walked in, I noticed - it was all management and I told them this was a management meeting and I really didn't want to stay, because I am not man- agement . And he said, "we feel you are." And Bill was there and I looked across and I said to Bill, I said, "I don't know why you keep pushing that I'm management . You were there at the meeting when I told Joe that I had no title and I was not manage- ment and I refused it." At'that point, Joel told me I was excused from the meeting So I left the room. Trypaulik testified that she was not asked to attend any other management meetings. She further testified that, she punches a timeclock and that she, is allotted a half-hour for lunch. Burke corroborated Trypaulik's version of what took place at the management meeting Burke testified that Trypaulik attended two management meetings. At the first one "she said she didn't really want to be there be- cause she wasn't a manager," and at the second one she said, "I.prefer riot to be here, I'm not a manager, and you know I'm not a manager, and Joel Garey excused her." Rhodus testified that Trypaulik played no supervi- sory role with respect to her. She testified that even after July Trypaulik did not assign her work and that she did not bring time-off requests to Trypaulik. Nadia Noto credibly testified that in July Garey called her, Rhodus, and Trypaulik into the office. She testified that Garey told them that he offered the position of credit manager to Trypaulik but that she refused the po- sition. Noto further testified that she did not bring time- off requests to Trypaulik, that Trypaulik did not assign work and did not exercise any authority over her. The record contains a memorandum from Garey to Geller dated May 26, 1981, stating, "Please be 'advised that I have appointed Mary Trypaulik to the position of Credit Manager." Garey further testified in May he told Trypaulik that "she would be responsible for the credit and collection activities at Glover Bottled Gas " He did not tell her that she had the right,to hire, fire,,or disci- pline employees, that she could assign work, or that she could exercise any of the other normal indicia of supervi- sory status. He testified that he considered this merely as offering her the job, and that a week later she told him that she accepted the new position. Garey testified • that at that point he "called the other girls in and advised the girls in the credit department that Mary was going to be supervisor." When asked whether at that meeting he told the employees what Trypaulik's duties were going to be, he replied, "I don't believe I did, no."-Garey conceded that Trypaulik was the only supervisor not on a straight salary, that she continued to punch the timeclock and that she received only 30 minutes for lunch. I credit the testimony of Trypaulik, Burke, Rhodus, and Noto. Based on their testimony, I find that around the middle of July Garey asked Trypaulik to become head of the collection department. She told Garey that she did not want to have a supervisory position but that she would be _ willing to continue in her capacity as senior collection clerk and would-be willing to answer any questions that the other employees may have. Garey called the other employees to a meeting and told them that he offered Trypaulik the position of credit manager but that she refused it., I find that Trypaulik did not assign work, did not hire, fire, or discipline employees, did not grant days off and did not exercise any of the other indicia of supervisory status. Accordingly, I find that prior to the election, Trypaulik was not a. supervi- sor, within the meaning of. the Act. 2. Offer of promotion and wage increase The complaint alleges that the above-described offer of promition and a 50-cent- raise 'granted to Trypaulik on August 28 constitute violations of Section 8(a)(1) of the Act. In assessing whether the granting or offering of bene- fits constitutes a violation of Section 8(a)(1) it must be determined whether such grant or offer is "calculated to interfere with the employees' right to organize." Fireside House of Centralia, 233 NLRB 139, 140 (1977). With re- spect to Garey's offer to promote Trypaulik, Trypaulik was acting as senior collection clerk since Avalone re- signed in May. She helped the other employees with their problems and it would seem natural that she would be asked to assume the title of supervisor. I do not be- lieve that the General Counsel has shown by a prepon- derance of the evidence that Respondent's action had an unlawful purpose. Concerning Trypaulik's raise on August 28, the record indicates, that Trypaulik's prior two raises were 25 cents and 40 cents per hour. The 50-cent-per-hour raise in August was not disproportionate to the raises previously given by Respondent. See Micro Measurements, 233 NLRB 76 (1977). Here too, I do not believe that the General Counsel has shown by a preponderance-of the ;GLOVER BOTTLED GAS CORP - - evidence that Respondent's action had an unlawful pur- pose. Accordingly, the allegations that Respondent unlaw- fully offered Trypaulik a promotion and granted her a raise are dismissed. F. Gilner The complaint, as amended, alleges ' that about July 29 Respondent denied Wendy Gilner a raise which had pre- viously been promised. The complaint further alleges that Garey directed Gilner to surveil Local 282'ineetings and that Gilner, as ' an' agent of Respondent, engaged in such surveillance. Gilner testified that in July she became supervisor of customer service and-that she was told by Garey that there would be a 4-week trial period at the end of which she would either-receive a raise or would return to her position as customer service .clerk. She testified that she did not receive the raise because there was "union action taking place in the company." The record contains a great deal of testimony concerning Gilner's supervisory status. However, towards the close of the hearing, the General Counsel stipulated that for the purposes of this, proceeding Gilner is not to be considered a supervisor. Since the question of whether Gilner was promised -a raise-is contingent on the question of whether she was offered the position of supervisor, the General Counsel's stipulation that Gilner was not a supervisor in effect eliminates paragraph 19 of the complaint, as amended. Accordingly, I make no finding with respect to such al- legation. , Gilner testified that at the end of July Garey told her "if when I was attending a union meeting , if there was ever anything that I wanted to tell him, he would be willing to listen." She testified that she never told Garey what happened at the union meetings and that he -never asked her. Garey denied that such a conversation took place. Inasmuch as the record contains no evidence to corroborate Gilner's testimony as to the conversation, I find that the General Counsel has not shown by a pre- ponderance of the evidence that such -a conversation took- place. Accordingly, the allegation is dismissed. G. Union Threats - Objection 2 filed by Respondent alleges that during the immediate preelection period the Union and its repre- sentative intimidated employees' with threats of physical violence. In this regard the Regional Director directed that a hearing be held' with regard to the alleged threat made by Andrew Boggia, -business agent for Local 282. -Ralph Kendrick testified that at the second union meeting held in early September there was some discus- sion about what might happen if there was a strike. He credibly testified: • Andy [Boggia] discussed what .used to go on in the old days -of organizing and explained more or less how there used to be a lot of hard times on the strike lines with-violence and stuff like that. But he also reiterated that that no longer is the case, that today things. aren't done like that and- that, you know, there is really nothing they could do if some- 665 body wanted to cross the picket line. I in turn told everybody there that in no way does Local 282 ad- vocate violence on a picket line at any time. • Nannery corroborated Kendrick's testimony. She testi- fied that Boggia "was explaining that a long time ago, it used to be a dangerous thing, but he says it's no longer, he says we try to settle everything out in a reasonable manner." Gilner, Libynski, Trypaulik, Rhodus, and Pur- chia all testified that neither Boggia nor anyone else from Local 282 made any threats. While Lodato testified that Boggia said, "Well, that is up to you girls to take care of. I cannot be arrested for hitting women," Lodato denied that Boggia threatened any employee at the meet- ing. Similarly, Dempsey testified that Boggia said that "if there was a strike they would go to any lengths to pro- tect their jobs and anyone crossing their picket lines could get hurt." When asked whether this was the exact language that Boggia used, Dempsey replied that it was the "influence I got from it. I don't know if it was the exact language . I do not recall." I credit the testimony of Kendrick, Nannery, Trypau- lik, Gilner, Libynski, Rhodus, and Purchia and find that Boggia did not make the alleged threat. Accordingly, Respondent's Objection 2 is overruled. H. Prosecutorial Misconduct Alva Avila, a NYP driver, was originally called as a witness on behalf of the General Counsel. He was subse- quently recalled on behalf of Respondent, at which time he testified that he received several calls from James Castagna, counsel for the -General Counsel.5 Avila testi- fied that the first call he received was around 10:30 p.m. on a Sunday before the election. Avila testified that the initial conversation took approximately 30 seconds and that Castagna: . . . told me he was from the National Labor Rela- tions Board, and he had me confused with some- body from Farmingdale, a mechanic in the garage, so I told him, I says, I don't know who you are, I says, and if you're a government employee working on a Sunday night, I says, you're crazy, and I hang up. Avila testified that he then called his supervisor and ascertained that there was a person named Castagna who worked for the National Labor Relations Board. Avila testified that he received another call about an hour later in which the caller identified himself as Mr. Castagna from the NLRB. During this conversation Castagna asked Avila questions about his job and about other em- ployees and Avila answered the questions. Avila testified that subsequent to these two conversations he received messages from his wife that Castagna was calling the house trying to get in touch with him. He returned the calls by calling the National Labor Relations Board -leav- ing messages for Castagna. Some time after having left 8 Tape of phone conversations between Castagna and Mr and Mrs Avila, submitted as a postheanng exhibit , is admitted into evidence as G C Exh 52 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the messages, Avila testified that he had a third conver- sation with Castagna, at which time the caller identified himself as "Jim Castagna 'from the Labor Board." During this conversation Avila told Castagna that he had been receiving threatening phone calls. Avila testified that he received a fourth call, but he did not know the date of the call or how -long it was after the third call. He testified, as follows: Q. Now, during this conversation, someone calls up and says, this is Jim Castagna from Local 282, correct? -A. Correct. - Q. But you knew that Mr. Castagna wasn't from 282, correct? - A. Up to that point,: no, I didn't know. Q. You didn't know? A. No. Q.. So this,person says, I'm Jim Castagna from 282 and what? What did he say? A. He says,something to the effect, and he was laughing when he :said it, ' that he was going to break my legs. Q. He was laughing? . A. Yes. . Q. •He. said, hi, I'm -Jim .Castagna from 282, I'm going to_ break your legs, correct? A. Correct., ; - Q. And what was, said : after- that? ; - , - A. I.believe he says; no, I'm kidding . I ,says,, I called you to ask more ;questions about the case.-; - Q. So! he told you . he was kidding? A. Yes. . Q. And then ;what questions did he ask you; about ,the. case? _A. I,don't remember. Q..So you .believed he . was joking around with you when he called . )t • - , . A i Yes, I 'would, say, that, yes, Castagna testified= that he •called Avila at,approximate- ly 9 P.M. - on October 4. He id'entifi'ed himself as an. attor- ney with-the National Labor Relations Board •but mistak- enly gave the wrong name of the company by whom Avila was employed.' When Castagna asked Avila whether he worked for that other :company, Avila re-- plied "no .and hung up•, the' phone." About an hour later Castagna called , again, and again identified himself as being with -the 'National " Labor, Relations Board: Cas- tagna` asked - Avila certain: :questions ' about 'New- York Propane' and its employees and ` Avila answered the ques- tions. . Castagna testified that between October 4"and October 22 he tried to `contact Avila' but was unsuccessful and left messages for Avila to 'call `him ' at, his of ' I `Approxi' ma'tely 10' p.m} - on 'October 22 ' Castagna placed' another call to Avila . Castagna testified that he again identified. himself'as •James-Castagna• from the, National '' Labor Re- laiions 'Boaid'Castagna testified , as- follows. At • that point [Avila] ,,;said _ he., had ,,been getting threatening phone calls 'from the. Union. So, I asked him what kind of phone calls was he getting. He said to me that somebody was calling him up and threatening him. I asked him how were they threat- ening you, and he said they were telling me that I might not make it home alive the next day. They were going to break my legs, and I said did they identify themselves in any way, and he said no. Castagna denied that he ever identified himself as being from Local 282 or from the Union. He denied that he ever identified himself as being from any place other than from the National Labor Relations Board and he denied that he ever threatened to break. Avila' s legs or threatened Avila in any other way: - - I -credit Castagna's testimony. ' He appeared to me to have a good recollection of the events. Avila, on the other hand, did not appear credible. He testified that, in the first three conversations Castagna identified himself as being: from the National Labor, Relations Board. He further testified that between-the second and third con- versations he returned messages by calling the NLRB. Yet, when questioned' concerning the fourth conversation as to whether he' knew that Castagna was not from Local 282,'Avila answered, "up to that point, no,-I didn't know." I find this to be a total 'contradiction of his prior testimony. - Inasmuch as I have 'credited the testimony of Cas- tagna, I find that Castagna did not misidentify 'himself and did-not state to Avila- that "I'm going to break your legs." Accordingly, -Respondent 'has not sustained its burden of proving that Castagna engaged in prosecuto- rial misconduct and the allegation is therefore dismissed. I.,Interrogation by Counsel for Respondent Paragraph , 22 of the - complaint, as amended, alleges that, during June 1982 counsel for Respondent, Daniel Shientag and Diane Geller, interrogated employees con- cerning the testimony they were-going to give in this proceeding.. Dolores Burke testified that she had a telephone con- versation with Diane Geller on June 3, 1982, at which time .Geller asked Burke to come to her office in Farm- ingdale the 'following morning. Burke credibly testified that she, asked Geller whether-she would be asked any questions and Geller replied, "No, we're not asking you any questions.". Burke further credibly testified that on June 3,she was not told that her appearence the follow- ing day was voluntary., Burke testified that when she ap- peared for the meeting .on June 4 she was -"very- upset" because she had already heard that Gilner was fired that morning. Burke- testified that Shientag and Geller asked her about the statement she made to Nannery, about the conversation she had with Purchia, and about her au- thority in -the, sales department. Burke further testified that she was not told that there- would be no retaliation against, her if she did not answer -the- questions. On the contrary;- she testified, • "I - felt • that what they - did to Wendy Gilner they would do the same thing to me, if I said anything, so I said as little as I could. Mary' Trypaulik also testified that on' June 3 she re- ceived a telephone call from -Geller- asking her to come GLOVER BOTTLED GAS CORP to Farmingdale for a meeting the following morning. During that conversation Trypaulik was not told that her appearance was voluntary. When 'she appeared: the fol- lowing morning Shientag.asked her if she "ever attended a dinner for the union." He also questioned her about what was said at the union meeting. While Trypaulik ini- tially testified that she was not told that her appearance was voluntary and that she was- not told that there would be no retaliation if she did not answer the ques- tions, on cross-examination she was asked whether she was told that a person; has the right not to talk to a lawyer. She replied, "Yes, I think you did." Similarly, on cross-examination, when asked whether she was told that "no harm would come" to her "as a result of talking" to Shientag, she replied, "I think you, said that when I was leaving, yes." Mary Rhodus similarly testified that she was called by Geller in June 1982 and asked to attend a meeting in Farmingdale At the time of the call she was not told that her appearance, was voluntary. When she met with counsel for Respondent Shientag asked her questions about the union meeting She testified that Shientag told her that she was under no compunction to speak with him. With respect to whether he told her that there would no reprisals, she answered, "You may have, I really don't remember." Geraldine Lodato testified that she was called by Geller to attend a meeting in Farmingdale. She testified that at the meeting with Shientag and Geller she dis- cussed the union meeting that she attended. She further testified that she was not advised by either Shientag or Geller that there would be no retaliation against her with respect to the conversation. She also testified that she was not advised that her appearance at the meeting was voluntary - Although the Board permits interrogation under cer- tain circumstances, specific safeguards have been estab lished to minimize the coercive impact of such employer interrogation. These safeguards were spelled out in John- nie's Poultry Co., 146 NLRB 770, 775 (1964), enf. denied on other grounds 344 F.2d 617 (8th Cir. 1965)- _[T]he employer must communicate to the employee the purpose of the questioning; assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union or- ganization: and must not be itself coercive in-nature; and the questions must not exceed'the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employ- ee's "subjective, state of mind, or otherwise interfer- ing with the statutory-rights of employees. When an employer. transgresses' the boundaries of these safe- 'guards, he loses the benefits of the privilge.' Lodato unequivocally testified that at the meeting.with Shientag and Geller she was'not told that her appearance was voluntary nor was she told that there would be no retaliation. Trypaulik testified that she was first told that there would be=no retaliation when she was leaving,,after the interrogation had taken place: Neither Shientag nor 667 Geller was called as a witness to refute this testimony. Accordingly, I find that Respondent did not observe the Johnnie's Poultrie safeguards with respect to Lodato and Trypaulik.6 J. Other Allegations Paragraph 25 of the complaint, as amended, alleges that Respondent engaged in certain action against Li- bynski and Barzilay because they testified in Cases 29- CA-8184 and 29-RC-5495. I find that the General Counsel has sustained his burden of proof with respect to this allegation. Accordingly, the allegation is dismissed. In addition, with respect to any allegations not specifical- ly discussed in this--decision, I find that the General Counsel has not sustained his burden of proof, and the allegations are, accordingly, dismissed. Conclusions as to Objections Union Objection 2 relates to the alleged unfair labor practices in Case 29-CA-9116. Inasmuch as I have found that Respondent committed various unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, as de- scribed in this decision, I sustain Union Objection 2. As discussed above, I have found that the Union did not in- timidate employees with threats of physical violence and that it has not been shown that 'the Union solicited and obtained the support of supervisory personnel. Accord- ingly, Respondent's Objections 2 and 3 are overruled. While the unfair labor practices involved GBG, I have found that Synergy Group, Inc., NYP, Vogel's, Inc., and GBG constitute a single employer within the meaning of the Act. As described above, I have found that there was a certain degree of employee interchange between the subsidiaries 'In addition, the unfair labor practices com- mitted at GBG were communicated to employees of NYP. Thus, Kendrick credibly testified that he told Avila, an employee of NYP, that Libynski and Nannery were discharged for what he thought was their union ac- tivity. Avila corroborated this 'testimony and testified that Kendirck told him "two employees, two girls that worked at Glover" were fired because they were "par- ticipating in the union." Similarly, Wililam Kampe, a GBG1 driver, testified that NYP employees discussed with him the discharges of Libynski and, Nannery. It is likely, therefore, that the unfair labor practices commit- ted at GBG would have impacted on the employees of NYP. Accordingly, I recommend that the elections held in Cases '29_ RC-5493 and 29-RC-5494 be set aside and that new'electioits be held. See Petroleum Electronics, 250 NLRB 265, 273,- (1980), enfd. 659 F.2d 1069 (3d Cir: 1981)'. ' In the GBG election, (Case 29-RC-5495) there were three ' -challenged` ,ballots, those of Lubynski,, Nannery, and Trypaulik. Having found that Libynski and Nannery were discharged in violation of Section 8(a)(3) and, that 6 Inasmuch- as Respondent violated Sec 8(a)(1) through counsel's inter- rogation of Lodato and Trypaulik, it is not necessary that I decide whether the interrogation of Burke, a supervisor, constitutes a violation Cf Parker-Robb Chevrolet, 262 NLRB 402 (1982) With respect to Rhodus, -her testimony was ambiguous as to whether she was advised that,her appearance was voluntary and that there would be no retaliation 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they actively supported the Union, I -believe that it is likely that the opening and counting of these challenged ballots will produce a conclusive result. Accordingly, I recommend that Case 29-RC-5495 be severed and re- manded to the Regional Director for Region 29 for the purpose of opening and counting the challenged ballots. If the revised tally of ballots shows that the Union re- ceived a majority of the votes- cast, the Regional Direc- tor shall issue a certification of representative. In - the event that the revised tally of ballots shows the,Union has not received a majority of the votes cast, the Region- al Director shall set- aside. the election in Case 29-RC- 5495 and shall.direct a new election. - - CONCLUSIONS OF LAW 1. Glover Bottled Gas Corp., Synergy Group, Inc., New York Propane Corp., and Vogel's Inc., Patchogue, New York, constitute a single integrated business enter- prise and a single employer, engaged in- commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within- the mean- ing of Section 2(5) of the Act. 3. By interrogating-employees about- their union activi- ties and by questioning employees without providing the necessary safeguards; ' Respondent has engaged in unfair labor practices -within the meaning of Section 8(a)(1) of the Act. " 4. By discriminatorily discharging- etilployees Lorraine Libynski and- Mae- Nannery because -of ,their.activities and support of -the Union, Respondent has committed unfair labor practices. -within„ the, meaning: of Section 8(a)(3) and .(1) of the Act. ,5-. Respondent- did 'not violate the , A ct in any other manner alleged in the complaint., THE REMEDY' - •, ,Having found that Respondent-has engaged, in certain unfair- labor -practices,- I find it (necessary. to -order -Re- spondent to cease and desist-, therefrom - and to take cer- tain. affirmative. action designed to-effectuate , the -policies of the Act. ; Respondent having discharged Lorraine Libynski and Mae Nannery in violation of.the Act, •I find it necessary to order Respondent to offer,them full reinstatement ti) their former positions' or, if" such' positions no longer exist, .to substantially equivalent , position's, without preju- dice to their 'seniority or -other'' r'igh'ts and privileges,'and make them whole for any losses of earnings that` they may have suffered from ,the time .of-their termination to the date of Respondent's offers of reinstatement. Back- pay' shall be_ compnted'•in accordance ;with-_the formula approved in F` "W. ,Woolworth-Co., 90-NL-RB 289,(1950),l with' interest computed in the manner' prescribed in Flori- da Steel Corp., 231 NLRB 651 (1977).7 On these f ndings of fact and conclusions of-law. and o&-the entire-record;- I issue-the .following -recommend- ORDER - - The Respondents, Glover Bottled. Gas Corp., Synergy Group, Inc., New York Propane Corp., and Vogel' s Inc., Patchogue, New York, their officers, agents, successors, and assigns, shall 1. Cease and desist from . (a) Interrogating their employees in a manner interfer- ing with their rights under Section 7 of the Act. - (b) Discharging or otherwise discriminating against employees in- regard to terms or conditions of employ- ment because of their union activities. ' - • - (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Lorraine Libynski and Mae Nannery immedi- ate and full reinstatement to their former positions or, if such positions no longer exist; to substantially equivalent positions, without prejudice ,•to their seniority or other rights and privileges, and make them whole for any loss of earnings, in the manner set forth in the section entitled "The Remedy." - - - - (b) Preserve and, on request,' make' available to the Board or its -agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records'nec- essary to analyze, the amount of backpay due under -the terms of this Order. (c) Expunge-from their files any references to the dis- charges of Lorraine Libynski and Mae Nannery about July 27 and 28, 198 1,. and -notify them in writing that this has been done- and that evidence of these unlawful ' dis- charges will not be used as a basis for future personnel actions against them. _ (d) Post at their facilities copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed •by the Respondent's authorized representa- tive; shall' be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days-in conspicuous places including all places where notices 'to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e)' Notify the Regional Director in wasting within 20 days from the date of this Order what steps the Re- spondents has taken to comply - ' IT IS FURTHER ORDERED that those allegations of the complaint as to which no viol'a'tions have been found are hereby dismissed'. " - - 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 pur- poses r _ -' '{ . - - 9 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted - by Order of the Na- 7 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 ( 1962) tional Labor Relations Board" shall read "Posted Pursuant to ' a Judgment 81 If no exceptions are filed -as provided by Sec 102 46 of the. Board's of the'United States Court of•Appeals Enforcing an Order of the Nation- Rules and - Regulations, the findings, conclusions, 'and recommended al•Laboi Relations Board " ' • , -' GLOVER BOTTLED GAS CORP. IT IS RECOMMENDED that the elections held on Sep- tember 10 and 11, 1981 in Cases 29-RC-5493 and. 29- RC-5494 be set aside and that the cases be remanded to the Regional Director for -Region 29 - for proceedings consistent herewith. IT IS FURTHER RECOMMENDED that Case 29-RC-5495 be severed and remanded to the Regional Director for Region 29 for the opening and counting of the chal- lenged ballots. If the revised tally of ballots indicates that the Union was designated by a majority, the Regional Director shall issue a Certification of Representative. 'If the revised tally of ballots shows that the Union has not. been designated, by the majority„ the Regional Director shall direct a new election. . -APPENDIX 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 violated the National Labor Relations Act and has or dered us to post and abide by this, notice. WE WILL NOT interrogate our employees in a manner interfering with their rights under Section 7 of the Act: WE WILL NOT discharge or' otherwise discriminate against our employees in regard to any term;or condition, of employment because of membership ' in, or activities on behalf of, Local 282,-=International" Brotherhood, of Teamsters, Chauffeurs; Warehousemen and, Helpers of America, or any other labor organization. - " • - . WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the National . Labor Relations Act. : i WE WILL offer Lorraine, Libynski and . Mae' Nannery. immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent jobs, without prejudice to their seniority or„ other rights and privileges and WE WILL make'them whole for ,any losses of earnings they may have suffered as a result of the discrimination against them. WE WILL expunge from our files any references to the, discharges of Lorraine Libynski and Mae Nanneryi on July 27 and 28, 1981, and we wil notify them that this has been done and that evidence of these unlawful dis- charges will not be used as a basis for future personnel actions against them. . GLOVER BOTTLED GAS CORP., SYNERGY GROUP, INC., NEW YORK PROPANE CORP.,- AND VOGEL'S, INC. 'DECISION ' STATEMENT OF THE CASE . ' " D. BARRY, MORRIS, Administrative Law Judge. This, case,was heard before me in New York City. on, various dates beginning October, 12, 1982, and ending February 669 14, 1983. On charges filed on June 15 and 30, 1982,1 complaints were issued on July 23 and August 13, alleg- ing that Glover Bottled Gas Corp. (Respondent or GBG) violated. Section 8(a)(1) and (4) of ' the National Labor Relations Act (the Act). Respondent filed answers denying the commission of-the alleged unfair labor prac- tices. - The instant proceeding is an outgrowth of cases which I-heard in the summer and fall of 1982.2 The complaints allege that Respondent discharged Gilner on June 4 be- cause of .her anticipated testimony in Cases 29-CA-9116, et al., and that Respondent discharged Dolores Burke.on June 25 because of her just completed testimony in those cases. Respondent admits that Gilner was discharged be- cause of her anticipated testimony and that Burke was discharged because of her actual testimony. Respondent contends, however, that the employees were discharged because they lied.- " . The parties were given full opportunity to participate, to produce evidence,. to examine and cross-examine wit- nesses, to argue orally, and to file briefs. A brief was filed by- counsel' for. Respondent. On the entire record of the case, including my obser- vation of the witnesses; I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS 'GBG, a New: York corporation, with its principal office and place of business in Patchogue, New York, is engaged in the sale and. distribution of propane gas and related-products. During the -12 months preceding the is- suance of the complaints, Respondent purchased goods and matenals valued in excess of $50,000 from suppliers located outside New York''State. As 'found in' the prior proceeding, Respondent,is engaged in commerce within the meaning of Section 2(6) and (7), of the Act. As fur- ther, found -in- -the • `prior, proceeding, - GBG, . Synergy Group,'Inc.;-New YorkiPropane Corp., and Vogel's, Inc. constitute 'a single integrated business enterprise and a single =employer engaged in commerce within the mean- ing of the Act. II. THE 'LABOR ORGANIZATION INVOLVED - Local ' 282,, International Brotherhood of Teamsters, Chauffeurs, Warehousemen"and Helpers of America (the Union) is a labor"organization within the meaning of'Sec- tion 2(5)-of the Act. " III. WENDY GILNER -,.. i . ..ir , Gilner was asked to !attend a,meeting . on -June, 3 with Respondents': counsel; Daniel-Shientag and 2Diane;Geller. There is _,virtually 1 no dispute::as : to, what Gilner l said; ,at 2-1 ''A11'dates are•tn 1982 unless otherwise'•sp'ecifed--' _ • + t ' Glover-Bottled,Gas ,Corp., Cases 29-CA-9116, 29-RC-5493, 29-RC- 5494, and 29-RC-5495 Decision issued August 5, 1983 (JD-(NY)-74-83) '(the "prior proceeding") Pursuant to the General Counsel's motion made at the commencement of the proceeding, the'record of the prior proceed- ing was incorporated into the record of the instant proceeding See Plant City Welding Co, A23-,NLRB ,1146,, 1150 (1959)„ reversed on other grounds [I 33,NLRB 1092 (1961) - 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meeting. Gilner credibly testified that she was pres- ently supervisor of customer service and that she' had -held that position since July 1981. She stated that she had gotten the position through Joel Garey, vice presi- dent of Long Island operations . When questioned about Mae Nannery, a subject of the prior proceeding, 'Gilner stated that she "found her to be cooperative and helpful in what she did." When 'asked about Mary Trypaulik, also a subject of the prior proceeding , she answered that Trypaulik was supervisor of credit and collections, "that she had that position unwillingly ," and that "Mary Try- paulik was given that -position around the time I was given my supervisory position, so that she would be unable to vote in the union election ." Gilner further tes- tified: - ' - In the course of discussing Mary Trypaulik, I ex- plained that she had become the supervisor of credit and collections without her willingness, that the company was placing her in the position of- accept- ing the supervisory position so that she would be in- eligible to vote, and that they had also given her a 50 cent raise at the time to make her completely in- eligible to vote. Gilner also testified that, at the meeting with Respond- ents' counsel, she explained to Shientag that "although I was a supervisor•by title,_my authority had been lessened so that I would be eligible to vote, even though I was maintaining the-same duties in September of `81 that I did in July of `81.•" She further testified, as follows: Q. Who told you this? - A. Joel. Garey. Q. You told this to Mr. Sh'ientag? A. Yes -I -did . . : I explained further about the conversation that I had with Joel Garey in refer- ence to the fact that- I was unhappy about not get- ting the raise and' not being allowed to^ go back to my previous desk of handling customer service. At which point Mr. Shientag asked me to explain about Mr. Garey- and our discussion. And I explained that Mr. Garey and F had originally started our conver- sation in the office of Glover Gas, and at 'one point, Mr. Garey had asked if we could - move it out to the yard of Glover, where it would be a little more pn- vate. At which point he was, Mr. Garey, was going -to attempt fo explain to me why I was not -getting the raise and why Mary Trypaulik was. Q. And -did you , tell him what Mi• Garey and you had discussed out' in the ,yard'on that' day? A. Yes. x• , , . , 'Q:-Could you tell-us what you told Mr. Shientag? A: Yes. Once again, I had 'explained ' the fact about I' wa's'doing'a`supervisory''position and I felt I should get the raise:' Mr. Garey stated he couldn't give it, because' by giving :me 'a raise that would make me ineligible to vote, and tie- wanted -me to be eligible to_vo_ to in' the' union. And the' purpose ' of giving Mary 'Trypaulik the raise and' making her a supervisor, was so that she would be ineligible to vote, even 'though •he; knew she didn't really want the position, they ' were 'forcing ii' on her anyway. At which point, Joel Garey had expressed to me the reason that Mae Nannery and Lorraine Lu- bynski were no longer with the corporation was be- cause of their union activities and that Mr. Garey did not want Mae Nannery nor. Lorraine Libynski recruiting the other women into -unionizing-. Geller testified that, after the interview with Gilner, she and Shientag discussed the situation and concluded that Gilner should be terminated. Geller testified that she and Shientag considered some of Gilner's statements to be lies which would "hurt the company in the upcoming NLRB trial." Geller testified that she called Bill' Sheri- dan, the office manager, that evening, and told him that a decision had been reached to terminate Gilner. At approximately 8"a.m. on June 4, when Gilner re- ported for work, she was met by Heyum. Heyum told Gilner that he had been called by Geller the prior evening and stated that "he was to be in work even before, I was able to punch in and that he was to pull my time card and to terminate me." When' Gilner asked Heyum why she was being terminated, he replied that he did not know, "that he tried to ask Miss Geller why and he was once again told not worry about it, that I was just to be terminated and that he did not know why I was being terminated." - A. Gilner's Supervisory Status In the record of'this proceeding as well as in ' the record of the prior proceeding there is much conflicting evidence as to whether Gilner was a supervisor. Both the-General Counsel and counsel for Respondent state that it is immaterial, for the purpose of this proceeding, to determine whether or not Gilner was, in fact, a super- visor within the meaning of the Act. Instead, I believe that what is necessary to determine is whether Gilner be- lieved herself to be a supervisor, and, accordingly, whether her statement to Shientag and Geller that she was a supervisor was a lie. _ Gilner credibly testified that at the end of June 1981 Garey asked her to-become supervisor of customer rep- resentatives. There was to be a 4-week trial period in the new position. - Gilner further credibly testified that Sheri- dan advised the employees-in the customer service de- partment. of the new arrangement. That Gilner believed she had some supervisory authority is evidenced-by sev- eral exhibits in the record.. Thus Charging Party's Exhib- its 4E is. a memo to one of the customer service repre- sentatives which states, "Effective immediately every Friday prior to leaving work,' a backlog-must be submit- ted to me." Charging Party's Exhibit 4T,; which is a memo addressed-to all customer service representatives, states,' "Effective immediately a daily' operations log is to be turned into- me at the-end of your work day. It is to include your current backlog." Charging Party's Exhibit 4V, a memo to all employees, states, "You must take a lunch during the course of a day. You will be docked the half hour unless you have prior approval " In addition, in the prior proceeding, Burke credibly testified -that Gilner, as Sheridan's assistant, was "over the girls in the service department:" Burke stated that GLOVER BOTTLED GAS CORP 671 Gilner "was acting as their supervisor" and "assigned tasks to the girls." Similarly, Trypaulik credibly testified in the prior proceeding that Gilner was Sheridan's assist- ant, "but as his assistant, she had ,certain things . . . he told her she' could reprimand certain people,, and stuff like that." B. September 1981 Affidavit , . . General Counsel 's Exhibit 2 is an affidavit executed by Gilner on September 29, 1981 , with respect to a state court matter involving a claim against GBG. Among the statements Gilner subscribed to in the affidavit was the following, "I'm not a supervisor or manager of any de-' partment at Glover Bottled Gas Corp." Gilner credibly testified that on 'approximately Sep- tember 24, 1981, she received a draft ' of the affidavit through interoffice mail . She then telephoned Geller tell- ing Geller that she did not believe the statement was true inasmuch as it stated she was not a supervsior. Geller-re= plied that it was -necessary for such a statement to be in the affidavit because the Company, was. attempting Ito prove that Gilner should not have signed for a'summons involving a claim against GBG. Gilner told Geller that she would like to take the draft home and think .about it. Gilner further credibly testified that she took the affi- davit home and discussed it with - her sister, Victoria, who had just • graduated law school .' Wendy told her sister that she was "uncomfortable" with the affidavit be- cause "I knew a portion of it was false.", Wendy and her sister made certain revisions to the- affidavit: The next day Wendy telephoned Geller and ', told • her the changes she would like to have made . Wendy, credibly `testified' as follows: [Geller] told me again that the changes couldn't' be done because that . . . wouldn't be doing the com- pany any. good, what they were trying to do was prove that I• had no authority to sign 'for the-sum- mons, and by removing the fact that ' I was a super- visor, would make me eligible to sign for -this slum= mons . And that Diane Geller was expressing to me that what she should like to do is just settle the-case ,with Suffolk County Brake out of court ,' that .it was nothing more than an unpaid bill , I think she told me $1800,'and it was nothing'more than a'formality, and she really didn't understand why there--was such a problem. - - J< Wendy was still, uncomfortable ,in signing the ,affidavit and the next day Geller again . telephoned her, asking when she would- sign' it. Wendy- again ,told, Geller; that she was uncomfortaale with , the, affidavit and, "that I didn't really feel • it was true and 1just didn ''t like, signing it," After Geller reassured her, that it was. "nothing more than a formality,", Wendy! signed the affidavit..-, Wendy testified, as follows: Q. Why did you sign ;a statement containing:a lie in it? - A. I felt I had no other choice.- Q. When you say you felt you had.-no other choice, what do you mean? A. I was asked to sign _ it, . I suggested, changes, and I was still being asked to sign it, despite the. fact that both parties involved knew it,-was untrue, and .I was just being called, to sign it,and sent it in. -My adjustments weren't being met. . And 4finally after, you know, ,being told that it's just a formality,. I signed it .. . . Q. What would happen if you didn't sign it? A. I don'.t know-but I suppose,the fear is always there of.losing your job.. ... : Victoria corroborated her sister's testimony. She credi- bly testified that Wendy, bro-ugt home the, affidavit and told her that she was asked , by Respondent to sign it. Victoria asked Wendy if the statement was true and Wendy replied that-it was not. Victoria testified that Wendy said she was a supervisor and that the-affidavit was false -inasmuch as it stated that she was not a super- visor.' Victoria' made certain changes- to -the -affidavit and suggested that -Wendy submit -the- changes. to ,Respond- ent: Victoria credibly testified, as follows:, Q. And, do you know -what your sister, did with that piece of paper? A. She indicated to me that she took it in and they refused-to make the corrections-;I suggested: Q: When did she tell' you that?, -. - A: The next'night; I believe it-was: It=was within the next day or two. Q. And at 'that' time, 'did , you`-have any • further discussions about' the affidavit'." .? , . Al When she told me that they weren't going to take my suggestions, she told nie that, they were putting pressure, on her,to sign ..this one. i . , ,,Q. Did she•saywho_they were? A. Diane Geller. Q.xAnd did yougtve fier,any. further instructions? A. ,I,-told her; not ;to sign_itagain, but ,she was frightened. „Q.`How, do,you;know she;was frightened? A.,"Dunng, the,converation; it-was quite obvious from, the ,way she -,was behaving, and -the way she :,was talking: to,me,:that she was, concerned, that she was going to lose her, job if_she didn't sign it., . Geller.,testifiedithat Wendyhad•"some problems" with the affidavit; ,She testified _ that Wendy had "pencilled in some`-changes, that she felt ;were necessary in order for her to feel comfortable.': signing this affidavit:" : With re- f 3= S <- .,. ] .),-1 L_, spect.to,'the_,statement,in.the,affida'vitthat she ;was not a supervisor, Geller testified that she questioned Wendy as to, whether__ she was,able to, liireand )fire, _dtsciplme em- ployees, give, raises, .etc. While „Geller, subsequently testi- fied:that Wendy did not have,a probjem,with,_fhe. word :`superv..isor,'•'__whensheywas= questioned as to,;why she asked Wendy specific-questions as. to,her, supervisory au- thority, Geller, retracted earlier; testimony and stated -that ' Wendy, ust, have. indicated''' ,a problem,;with the statement that she , was not a supervisor. -Geller further testified that at her June 3, 1982 meeting with Shientag and. Wendy, both,-, Geller ti and Shientag . did not ask Wendy any. questions,about,theSeptember 1981 affidavit. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Geller further testified that, during the discussion she had with`Shientag after Wendy left the interview, Shien- tag did not mention the September 1981 affidavit. Geller conceded that Wendy was discharged because of what Wendy told Shientag and her at the interview. C. Conclusions I find that Wendy Gilner was discharged 'because Shientag and Geller believed that her anticipated- testi- mony would be harmful to Respondents' case. Gilner told Shientag and Geller at the interview that Nannery was a cooperative employee, that Trypaulik was given a supervisory position so that she would not be able to vote and that Garey told her that Nannery and Libynski were terminated because of their union activities. These statements, if testified to, would obviously be damaging to Respondents' case. In my opinion Respondents' con- tention that Gilner was discharged because of lying is a mere pretext. I have credited Gilner's testimony that Garey told her that Nannery and Libynski were termi- nated because of their union activities and I have found in the -prior proceeding that, in fact, Nannery and Li- bynski were terminated because of their union activities. With respect to Gilner's supervisory status, I find that Gilner honestly believed • that she was a supervisor. Geller was aware of this belief as early as September 1981 and urged Gilner to sign the affidavit which stated that she was not a supervisor, even though Geller knew that Gilner believed that she was a supervisor. Gilner signed the affidavit, although uncomfortable doing so, and against the advice of her sister, because she feared the possibility of losing her job if. she did not sign it. Under these circumstances, I believe that. Gilner did not lie concerning what she belived to be her supervisory status. I conclude that she was discharged because Re- spondents' counsel believed that her anticipated testimo- ny would be harmful to Respondents. Geller recognized this when she testified that Gilner's story "certainly was detrimental to the company case, and' certainly [was] det- rimental to the company." IV. DOLORES BURKE Dolores Burke testified in the prior proceeding, on June 21, 23, and 24. She was discharged by GBG on June 25. In the prior proceeding Burke testified that during July 1981 she called Garey and told him that Nannery, Libyanski, and Trypaulik were " unionizing." She :further testified that in a subsequent conversation she told 'Garey "the girls are really giving me a hard time; I don't know what' s going on. He said to me, don't worry about it they're getting terminated anyway." With respect to Nannery's obtaining provisions at the -7-Eleven without' punching out, -Burke testified that she gave Nan- nery permission to do'so. Burke also-testified that in Feb- ruary_ 1981' Garey approached her and told her that a new sales department was opening and' offered her the position of sales manager. She testified that she accepted the position as sales manager supervising two employees, Nannery and Purchia. She stated that she retained the same authority in. her position as sales manager as she had as office manager. Burke further testified in the prior proceeding, as fol- lows: Joel Garey . . . told me that Diane Geller just re- ceived-a letter from the Labor Board stating that Mae Nannery was pressing charges because I was fully aware of the unionizing before she got fired. Joel Garey then told me I want you to tell the Labor Board that you thought they were kidding and you are not management. In addition, Burke corroborated Trypaulik's testimony that Trypaulik was not a supervisor. Burke testified that during a management meeting Trypaulik said , "I prefer not to be here, I'm not a manager, and you know I'm not a manager, and-Joel Garey excused her." Finally, with respect to the June 4 interview of Burke by Shientag and Geller, Burke testified that she asked Geller whether she would be asked any questions and Geller replied, "No, we're not asking you any questions." Burke further testi- fied that on June 3 she was not told that her appearnce the following day was voluntary. A. Meeting with Geller in September 1981 Burke credibly testified that on September ' 17, 1981, Garey told her that Geller received a letter from the NLRB stating that Nannery was pressing charges against Respondent because Burke had knowledge of Nannery's union activities... Garey told Burke, "I want you to tell the Labor Board that you're not management and you're only a senior clerk." On September 22, 1981, Geller interviewed Burke, at which time Garey was also present. Geller asked her if Nannery's statement to the Board was true, to which Burke replied that it was. When _ asked by Geller whether she ever handed out work, hired, : fired, or disciplined. employees, she an- swered no. She testified at this proceeding that her an- swers to Geller with respect to handing out work and disciplining employees were false .- As to why she lied at the September 22-interview, she testified, "I answered the questions according to the way Joel Garey had told me." She further testified, as follows: Q. Now September 1981, you had a certain con- versation with Miss Geller, Mr Dipple and Mr. Garey, correct? . A. Just Diane Geller was the only one who spoke. George Dipple and Joel Garey did not speak Q. They-were presetit,though? A. Yes. - Q. And you answered certain questions posed to you by Diane-Geller, correct? A. That's correct. Q. And you answered them incorrectly? A. That's correct. Q. Why? ' - A. Because Joel Garey had asked the to tell the Labor Board that I was not management and I told Diane Geller. She knew my position with the com- pany, she knew my duties, and I felt ' I was just an- swering them the way Joel Garey had asked me to answer. • - - GLOVER BOTTLED GAS CORP Burke testified that she .'.`knew" she "would be fired" if she told Geller the truth during the September 1981 interview. At the prior proceeding she testified that she lied at the September 1981 interview because she felt "in- timidated" and "very nervous and afraid." Geller corroborated Burke's testimony that Garey was present during the September 1981 interview and that when asked whether she had the right to hire, fire, or suspend employees, or to assign work to employees, Burke answered that she did not have the authority- Geller testified that on the completion of Burke's testi- mony at the -prior proceeding she -recommended to Shientag that Burke be discharged. Geller testified that Burke was discharged the day after she completed her testimony for "lying on the stand." • B. Conclusions In their brief, Respondents contend that Burke was discharged "because she had, in the course, of her testi- mony, in Case 29-CA-9116, et al., stated that about Sep- tember 1981, she had wilfully lied to Glover's counsel concerning her employment by Glover during the summer of 1981" (Br. 2). At the hearing in the instant proceeding Geller testified that Burke was discharged for "lying on the • stand" during her testimony in the prior proceeding. I have credited Burke's testimony and find that she told the truth in" the instant proceeding with re- spect to her supervisory status and with respect to' her discussion with Garey on September 17, 1981. While I find that Burke lied to Geller during' the September 1981 interview, I also find that she did so because she was so instructed by Garey. I believe that Burke was' discharged because her testimony in the prior proceeding was detri- mental to Respondents' case. Thus-she testified that she was a supervisor and corrborated- Nannery's testimony that she questioned Nannery concerning her union activi- ties. Burke also testified in the prior proceeding that Garey told her, concerning several employees who had been engaged in union activities, "don't worry about it, they're getting terminated anyway." Burke -also'. testified in the prior proceeding that Garey instructed her- to tell the Board that she was not management . In addition; Burke testified at the prior proceeding that Trypaulik stated, "I'm not a manager, you know I'm not a manag- er." Finally, Burke testified that on June 3 she ' was not told that her appearance the following day with Shientag and Geller was voluntary. V. DISCUSSION'AND ANALYSIS As stated by-,the Board in Power Systems, .239 NLRB 445, 447 (1978), enf. denied on other grounds 601 F.2d 936 (7th Cir. 1979): The broad language contained in Section 8(a)(4) has been interpreted as being "consistent .. . with an intention to prevent the Board's channels of infor- mation from being dried up by employer intimida- tion of prospective complainants and witnesses :. . The Board has consistently given an expansive scope to the protections afforded by Section 8(a)(4), thereby confirtning the crucial importance of that 673 - section to the effective operations of the National Labor Relations Act.3 In Big Three Industrial Gas Co., 212 NLRB 800 (1974), enfd 512 F.2d 1404 (5th Cir. 1975), the Board found that an employee's discharge, violated the Act even though that employee testified falsely in certain respects at a Board hearing. The Board affirmed an administrative law judge's decision which stated, in pertinent part. (id. at 803): [T]he case . . . compel a construction of Section 8(a)(4) which would place the burden on the em- ployer to show affirmatively not only that the testi- mony was false, but also that it was willingly and knowingly false, that it was uttered with intent to deceive, and that it related to a substantial issue. In effect, the employer would have the burden of es- tablishing- perjury. As the administrative law judge's decision further stated (id. at 804), '"An essential element of the crime of perjury is a showing that the witness did not believe his statements to be true.' United States • v. Hagarty, 388 F.2d 713 (C.A..7 1968). 'It is the belief of the individual in the verity of his sworn testimony that is crucial.' United States v. Winter, 358 F.2d 204, 210 (C.A. 2, 1965)." From the above citations it is clear that Section 8(a)(4) is to be construed liberally, that it applies to supervisors as well as to employees, and that it protects even false testimony so long as such testimony was not willingly and knowingly false and was not uttered with intent to deceive. With these criteria in mind, I turn to an exami- nation of the circumstances surrounding the discharges of Gilner and Burke. A. Gilner . - I have credited Gilner's testimony that Garey told her that Nannery and Libynski were terminated because of their union activities. I have also credited Gilner's testi- mony that Garey asked her to be supervisor of 'customer representatives on a 4-week teal basis. I find that Gilner believed that she was a supervisor and acted consistently with that belief. The fact that she had signed an affidavit in September 1981 stating that she was not a supervisor was done under protest. She advised Geller that she was a supervisor and did not want to sign the affidavit unless it was changed. She was.told by .Geller-that the affidavit was a mere, "formality" and Gilner felt that she risked losing her'job ifishe did not sign it: Under such circum- _ stances, I do}not believe-that the signing of the affidavit can be held against Gilner and -in any way intimates that she changed her - -belief- that • she was a supervisor. • Re- spondents have not sustained their burden of- showing that Gilner's testimony was `willingly'' and knowingly false and that it was,uttered with intent to deceive: Ac- cordingly, I find that -Respondents discharged Gilner be- 8 The Board has found that Sec 8(a)(4) protects not only employees, Everage Bros Market, 206 NLRB 593 (1973), but supervisors, as well General Nutrition Center, 221 NLRB 850, 858 (1975), Power Systems, supra 674 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD cause of her anticipated ' testimony, in violation of Sec- tion 8(a)(4) and (I) of the Act. B. Burke . I -have credited Burke's testimony that Garey told her to tell the -Board that . she, was not part of management, but was only a senior clerk. I find that Burke was dis- charged ;for her testimony 'at'.the hearing. Indeed, Geller testified' that, Burke was - discharged for "lying, on . the stand." While' Respondents" contend,- in their brief, that Burke -was also ,discharged, for, having- lied to Geller in September 1981, she didso'because she was so instructed by ' Garey.- Garey was -.present - at the September :1981 meeting and knew very well'that Burke was a supervisor but that he told- her to. say, that she was not. I find that Burke was discharged for her testimony in the prior pro- ceeding and that Respondents' contention that she was discharged for lying is pretextual. I find that Respond- ents have 'not sustained' their burden of - showing that Burke's'testimony was'willingly and knowingly- false and that it was uttered with intent to deceive: Accordingly, I find that-Burke was' discharged because of her testimony,' in_violation of'Section 8(a)(4) and (1) of the Act. - CONCLUSIONS OF LAW 1. Glover Bottled" Gas Corp.; "Synergy Group, Inc,; New York Propane' Corp.,' and - `Vogel's' Inc:,' Patchogue, New' York, constitute a ` single ' integrated business '` enter- prise and' a single employer,', engaged"'in "commerce; within the meaning'" of- Section'2(2),' (6);' and"(7)' of the' Act. 2. The Union is a labor organizatio within, the mean- ing_' of Section 2(5) of the Act.. '3.By„discharging Wendy Gilner because of her'antici- pated :testimony • and' Dolore"s'rBurke because of her actual testimony,under"the Act,'Respondents have =enga11.ged in unfair labor,:prac'_t ces "'within'. themeaning of: Section 8(a)(4) and (1) of the, Act . '` " THE REMEDY Having found that Respondents have•engaged:-in--cer-, tain unfair labor' practices, I find it necessary to order them to cease and desist therefrom and to take certain af- firmative action designed `to effectuate the policies of the Respondents Having, discharged ,Wendy ^Gilner and 1, 1 lores-Burke iii violation of the Act, I fnd`it;necessary Do to order Respondents to offer `them full ;reinstatement to their former positions or, if such positions no longer exist, to' substantially equivalent positions, without preju- dice to -their; seniority or other- rights and"privileges, and make them whole'for'any loss of earnings that they may liave`suffered'`from'ttid time 'of their'--termination' to the date of Respondents' ' offer's' ofl'reinstatemeiit-' Backpay shall be 'computed in''accordance with' the =formula ap- proved ii ,F W', Woolworth"Co.j' 90 NLRB'=2895(1950), with' interest, computed' in `the manner- prescribed 'in Flori- da Steel Corp., 231 NLRB 651 (1977).' 4 See generally Isis Plumbing Co, 138 NLRB 716,-717-721 (1962) On these findings of fact and conclusions- of law and on the entire record, I issue the following recommend- ede " ORDER - Respondents, Glover Bottled Gas Corp., Synergy Group, Inc., New York Propane Corp. and Vogel's Inc., Patchogue, New York, their officers, agents, successors, and assigns, shall , . 1 Cease and desist from - -(a) Discharging or otherwise discriminating against employees because of their testimony or anticipated testi- mony under the Act. - (b) In any like or related manner interfering with, re- straining, or coercing, employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take ,the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Wendy Gilner and Dolores Burke immediate and full reinstatement.to their former positions or, if such positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, -and make them whole for any loss of earnings, in the manner set forth above in the section en- titled "The Remedy." - (b)' Preserve and, on request, make- available to the Board or its agents for examination and-copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary, to analyze the amount of backpay'due under the terms of this Order. - (c) Expunge "from their files any references to the dis- charges of Wendy Gilner and Dolores Burke about June 4 and 25, 1982, respectively, and notify them in writing that this has been done and that evidence of these unlaw- ful discharges- will -not be used as a basis for future per- sonnel actions against them. (d)-Post 'at-their facilities copies of the attached notice marked' "Appendix." Copies of the' notice, on forms ptiivided-•by'the Regional Director for Region 29, after being signed by the Respondents' authorized representa-' tive, shall be posted by the Respondents immediately upon receipt-'and- maintained for 60 consecutive days in conspicuous places including all places where notices to employees' are customarily posted. Reasonable steps shall be takeii'by,the Respondents to ensure that the notices are not' altered,` defaced, or covered by any other maten- aL" -" . (e) =Notify the-Regional Director in writing within 20 days from : the date of this Order what, steps the Re- spondent has, taken to comply. , 5 If no exceptions -are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, -and recommended 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 pur- poses- -. - . - . 'c . 6.1f this Order is enforced by -a Judgment of a United States Court of Appeals,.the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read-"Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " • GLOVER BOTTLED GAS CORP. 675 APPENDIX 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 violated the National Labor ' Relations Act and has or- dered us_ to post and abide by this notice. WE WILL NOT' discharge or otherwise discriminate against employees because of their ' testimony or antici- pated testimony under the Act. - 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 offer Wendy Gilner and Dolores Burke im- mediate and full reinstatement to their former jobs or if those jobs no longer 'exist to substantially equivalent jobs without prejudice to their seniority or other rights and privileges and WE WILL make them whole for any loss of earnings they may have suffered as a result of their dis- charges. WE WILL expunge ' from our files any references to the discharges of Wendy Gilner and Dolores Burke on June 4 and- 25,1982, respectively, and we wil notify them that this has been , done 'and that evidence of these unlawful discharges will not be used as a basis for future personnel actions against them. GLOVER BOTTLED GAS CORP ., SYNERGY GROUP, INC., NEW YORK PROPANE CORP., AND VOGEL'S INC. SUPPLEMENTAL, DECISION -STATEMENT'OF THE CASE D. BARRY MORRIS, Administrative , Law Judge. On Septemer 10, 1984 , the board issued an order remanding to me the above-entitled ,proceedings for the purpose of issuing a Supplemental Decision., In its order, the Board stated: The Board . . . finds that a determination' -of whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging Libynski and Nannery re- quires a resolution of the apparent inconsistency in the testimony of Gilner Additionally, any determi- nation of whether Respondent violated Section 8(a)(4) and (1) of the Act by discharging Gilner re- quires a resolution of the apparent inconsistency in the testimony of Gilrier . The Board further finds any determination of whether Respondent violated Section 8(a)(3) and (1) by discharging Libynski and Nannery may require a discussion of the testimony of Carl Lewis Barzilay. On September 14 I issued an order inviting' the parties to submit supplemental beefs in connection with the remand . A brief was filed by the General Counsel. On the entire record of both proceedings , I make the, following supplemental FINDINGS OF FACT On June 10, .1982 , during direct examination by the General Counsel in Cases 29-CA-9116, et al., Wendy Gilner testified that during the last week of July. 1981 she had a conversation with Joel Garey concerning the dis- charge of Libynski and Nannery . Gilner testified: I had approached Mr. Garey on why I was not re- ceiving a raise . At that time, he asked me to go for a walk with him out in the Glover yard, and he ex- plained to me why I was not getting the raise. In the conversation with him as to why I was not get- ting the 'raise, he brought up the fact that Lorraine Libynski was f red because of union action he knew that was taking place in the corporation. Mae Nan- nery had been discharged because of her union action in the company... . On' June 11, under cross-examination by counsel for Respondent, Gilner testified that the conversation with Garey took place on July 29 or 30, 1981. She further tes- tified that Garey told her Libynski was terminated on the "grounds of her not-working out as the receptionist in customer service" and that Nannery was discharged on the' "grounds of neglecting to punch her timecard for lunch along with what he felt was a poor attitude." On June 15, the next day of the hearing and the next time that the Garet' conversation was discussed, while still under cross-examination by counsel for Respondent, Gilner testified that Garey stated to her in the July 1981 conversation: -. .. that both Mae Nannery and Lorraine Libynski were fired because of their union actions, that the reasons he gave the girls 'for being fired, were Lor- raine Libynski was terminated because other inabil- ity 'to _ handle the reception .job and that Mae Nan- nery was tetmiiiated because of her attitude and the problem with punching out for lunch. Counsel for Respondent then questioned Gilner about the apparent inconsistency, as follows: , , Q. Now, I would like to explore this , on Friday' your version of this conversation , as I recall it, was that Mr` Garey had told you that Ms. Libynski was fired for all of the reasons that you had been com- plaining about, but that he was also 'aware of her Union activities, is that correct? . ' _ . • ' A. Yes, that's what I'm saying. Q. . .' Now, let's, see' if we can establish once and for all what. your version of the conversation actually is. Did Mr. Gamy,'. say -that Ms. Libynski had been fired for all the reasons that. ,you', were complaining about .for a month or so-before? A. ,That was what he told Ms. Libynski, yes. Q: But, that wasn't the reason, he didn't fire her because you kept recommending that she be fired, he fired her, he said , because she was busy in the Union? A. That's correct. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, under recross-examination by counsel for Re- spondent, when again asked whether she discussed Li- bynski's discharge with Garey, Gilner testified that Garey stated that Libynski "was being terminated be- cause of her Union involvement and that the reason he was giving Ms. Libynski was her inability to handle the reception job." On November 1, 1982, during the course of the second proceeding (Cases 29-CA-9764, et al.), under direct ex- amination by the General ,Counsel, Gilner testified: . . . Mr. Shientag asked me to explain about Mr. Garey and our discussion. And I explained that Mr. Garey and I had originally started our conversation in the office of Glover Gas, and at one point, Mr. Garey had asked if we could move it out into the yard of Glover, where it would be a little more pri- vate . ... Q. And did you tell him what Mr. Garey and you discussed out in the yard on that day?. A. Yes. - Q. Could you tell us what you told Mr. Shientag? A. Yes . . . Joel Garey had expressed to me the reason that Mae' Nannery and Lorraine Libynski were no longer with. the corporation was because of their union activities and that Mr. Garey did not want Mae Nannery nor ',Lorraine Libynski recruit- ing the other women into unionizing . And` that Mae Nannery was terminated-on the -grounds .. of ne- glecting to ' punch out, at lunchtime and that ' Lor- raine Libynski was terminated for her- inability to handle the switchboard. ` On June 28, 1982, Carl Barzilay, a Glover employee, testified in the first proceeding. On direct examination by the General Counsel, Barzilay testified that during the latter part of July 1981, while in the men's room on his afternoon break, he overheard' a 'conversation betwen Garey and Donald ,Biitiier,- Respondent's service= manag- er. Barzilay testified that,Bittner asked Garey Why Nan- nery was fired.•'Garey replied: - She was fired for-'trying `to create a union. So,' Don Bittner laughed and, asked what .kind of . union could they create, could she create. - Joel Garey stated it was the same union the men were in. Don Bittner said focal 282. and,Joel' Garey said yes: He said that that was the purpose why, Mae, Nannery and Lorraine Libynski got terminated, that they were troublemakers and that ought to fix them. On cross-examination by counsel for Respondent, Bar- zilay repeated his testimony that Nannery and Libynski were fired because "they teed to create a union." Discussion -' . I credit Gilner's testimony, as stated-6n recross-exai'ni- nation during the first proceeding on June 15, 1982 (Cases 29-CA-9116, et al.), and as repeated in the second proceeding on November 15,-1982 (Case 29-CA-9764, et al.), that Garey told her that Libynski and Nannery were terminated for their union activities but that the reason given to Libynski for her termination was her inability to handle the reception job, and the reason given to Nan- nery for her termination was her failure to punch out at lunchtime. -This was consistent with Gilner' s initial testi- mony on'June 10 that Libynski and Nannery were dis- charged because of their union activities. While Gilner testified on June 11-that Libynski was.-terminated "on the grounds. of her,,not working, out as the receptionist in, customer service" and that Nannery was discharged "on- the grounds of neglecting to punch her time card for lunch" and a "poor attitude," I believe that Gilner's sub- sequent testimony shows, that, while these were the rea- sons given to Libynski and Nannery for their-discharges, they in fact were not the actual reasons for such dis- charge: Thus, on June 15, 1982;• the next day of the hear- ing and the next time that the •Garey conversation was discussed, while still on cross-exaimination, Gilner testi- fied that Garey told her that Nannery and Libynski were fired because of their union activities but that the reasons he gave 'them for being fired were, in the case' of Li- bynski, her inability to handle the reception job* and, in the case of Nannery, her poor attitude and not having punched out for lunch. In -addition, I credit the testimo- ny .of Barzilay that he overheard a conversation between Bittner and Garey- in which Garey said that both Nan- nery and Libynski were fired because of their union ac- tivities. / • _ ' ' Conclusion Based on, the foregoing , and for the reasons stated in my; decision in Cases 29 7 CA-9116, et al., and in my deci- sion in Cases 29-CA-9764, et al., I reaffirm the findings, conclusions, and recommended Orders issued in those proceedings. , _ .