United Artists Theatre Circuit, Inc.

UNITED ARTISTS THEATRE United Artists Theatre Circuit, Inc. and Office and Professional Employees International Union, Local No. 3, AFL-CIO. Cases 20-CA-15698, 20-CA-16009, and 20-RC-15160 31 October 1985 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 9 November 1981 Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. The General Coun- sel and the Charging Party filed motions to strike the Respondent's exceptions, and the Respondent filed an answering statement.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and concllusions3 as modified, but not to adopt his rec- ommended Order. i We deny the General Counsel and the Charging Party's motions to strike the Respondent's exceptions as lacking in merit. We grant the Gen- eral Counsel's motion to correct clerical errors in the judge's decision. 2 The Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all 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 We correct the judges inadvertent failure to make a finding regarding Lee Goodwin's supervisory status, and find, based on the Respondent's record admission, that Goodwin was a statutory supervisor at all relevant times 3 In adopting the judge's conclusion in sec. III,B,l,h,(2) of his decision regarding Sec 8(a)(1) violations involving Gloria Wyman, we rely on his finding in fn 7 that Wyman was a supervisor during the relevant period In adopting the judge's conclusion in sec III,B,l,i,(6) that the Re- spondent violated Sec. 8(a)(1) of the Act when Manager Jack Hankins told employee Adrena Owens, "I understand you guys are trying to form a union," we find it unnecessary to decide whether Hankins' version of the conversation, discredited by the fudge, was also violative of the Act We agree with the judge's conclusion in sec III,B,l,g that Supervisor Nora McGee's interrogation of employees Linde and Fong, not previous- ly self-identified as union adherents, violated Sec 8(a)(1) of the Act, but we disavow his statement that an initiating question by a supervisor to an employee regarding the employee's union sentiments is a "traditional" violation of Sec 8(a)(l) of the Act insofar as the statement implies a "per se" approach In Rossmore House, 269 NLRB 1176 (1984), affd sub nom Hotel & Restaurant Employees Local 11 v. NLRB, 760 F 2d 1006 (9th Cir 1985), the Board stated the proper analysis is whether, under all the circum- stances, the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act Chan man Dotson does not adopt the judge's conclusions that the con- versation between Paul Ziegler and John DeMarsh and the conversation between Jack Hankins and Adrena Owens violated the Act 115 We find merit in the Respondent's exception to the judge's finding that it violated Section 8(a)(1) of the Act by distributing a handbill and a letter containing threatening statements to all employees. The handbill stated that, if the Union won the elec- tion, "we will be obligated by law to discuss griev- ances only with the Union, not with you, AND THEREFORE YOUR RIGHTS DEPEND SOLELY ON WHETHER OR NOT THE UNION DECIDES TO PURSUE THEM ON YOUR BEHALF" [capitalization in the original]. The letter stated: You have always had the right to deal directly with the management of our Company. Should this union get in, you will have voted away that right and you will have placed a group of outsiders who know nothing about our busi- ness between yourself and your company. The judge found these statements to be misstate- ments of law under Section 9(a) of the Act consti- tuting threats of loss of benefits if the employees chose the Union.4 Recently, in Tri-Cast, Inc., 274 NLRB 377 (1985), the Board found that an em- ployer's statement explaining a change in the manner in which employees and employers deal with each other when a union is elected was not an objectionable threat to deprive employees of their rights or a misstatement of law.5 The Board found such statements constitute permissible campaign conduct, taking into account a fact of industrial life that in a union shop the employees deal with the employer indirectly through their union representa- tives. Under these principles, the Respondent's statement did not violate the Act. Accordingly, we will dismiss this portion of the complaint. We amend Conclusion of Law 3 to reflect that the Respondent did not violate Section 8(a)(1) of the Act by this conduct, and shall issue a new Order and notice to employees. We will, inter alia, a Sec 9(a) of the Act provides- Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the em- ployees in such unit for the purposes of collective bargaining in re- spect to rates of pay, wages, hours of employment, or other condi- tions of employment Provided, That any individual employee or a group of employees shall have the right at any time to present griev- ances to their employer and to have such grievances adjusted, with- out the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargain- ing contract or agreement then in effect' Provided further, That the bargaining representative has been given opportunity to be present at such adjustment s In Tri-Cast, the employer distributed a letter to its employees on election day stating We have been able to work on an informal and person -to-person basis If the union comes in this will change. We will have to run things by the book, with a stranger, and will not be able to handle personal requests as we have been doing 277 NLRB No. 15 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substitute narrow injunctive language for the broad order recommended by the judge. See Hickmott Foods, 242 NLRB 1357 (1979). ORDER The National Labor Relations Board orders that the Respondent, United Artists Theatre Circuit, Inc., San Francisco, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about union support or union activities. (b) Threatening employees that, if the Union or- ganized the Respondent, working conditions would be made stricter, wage increases would be delayed, and employees would be terminated, and telling employees their eligibility to vote in NLRB-con- ducted elections depends on how they intend to vote. (c) Asking employees to engage in surveillance of union activities and creating the impression em- ployees' union activities are under surveillance. (d) Promising employees increased benefits, such as larger, faster, and more frequent wage increases, if the Union is defeated. (e) Issuing employees written or oral warnings because of their union activities. (f) Assigning employees to, and refusing to trans- fer them out of, more onerous positions because of their union activities. (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Remove from its files any reference to the unlawful written warning issued to Adrena Owens and notify her it has done so and that the warning will not be used against her in any way. (b) Transfer Adrena Owens to the position she would have had but for her transfer to research or, if that position no longer exists, to a substantially equivalent position, without prejudice to her se- niority or any other rights or privileges previously enjoyed. (c) Post at its San Francisco, California facility copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Re- gional Director for Region 20, after being signed by the, Respondent's authorized representative, c 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the challenges to the ballots of John Merle Kaiser, Lloyd Morgan, Flvie Jean Stokes, Martin Swearingen, Allen Mason, and Jack Michael Naify in Case 20-RC- 15160 be sustained. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Office and Professional Em- ployees International Union, Local No. 3, AFL- CIO and that it is the exclusive collective-bargain- ing representative of the employees in the follow- ing appropriate unit: All office and clerical employees employed by the Employer in its accounts payable, payroll, box office, comptometer, tax, insurance admin- istration, corporation accounting, bank recon- ciliation, data entry, computer, data control, real estate, auditing, purchasing, film distribu- tion, film payables, booking and buying, secre- tary and miscellaneous clerical departments, including PBX operator, located at 172 Golden Gate Avenue, San Francisco, Califor- nia; excluding all professional employees, con- fidential employees, including the secretary to the president and secretary to the treasurer- controller, film buyers and film bookers, guards and supervisors as defined in the Act. 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 ordered us to post and abide by this notice. WE WILL NOT coercively question you about your union support or union activities. WE WILL NOT threaten you that, if the Union or- ganizes the employees, working conditions will be made stricter, wage increases will be delayed, and employees will be terminated, and WE WILL NOT UNITED ARTISTS THEATRE 117 tell you your eligibility to vote in NLRB-conduct- ed elections depends on how you intend to vote. WE WILL NOT ask you to engage in surveillance of union activities or create the impression your union activities are under surveillance. WE WILL NOT promise you increased benefits such as larger, faster, or more frequent wage in- creases, if the Union is defeated. WE WILL NOT issue you written or oral warnings because of your union activities. WE WILL NOT assign any of you to, nor will we refuse to transfer you out of, more onerous posi- tions because of your union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL notify Adrena Owens that we have re- moved from our files any reference to her unlawful written warning and that the warning will not be used against her in any way. WE WILL transfer Adrena Owens to the position she would have had but for her transfer to research or, if that position no longer exists , to a substantial- ly equivalent position, without prejudice to her se- niority or any other rights or privileges previously enjoyed. UNITED ARTISTS THEATRE CIRCUIT, INC. Robert J. Buffin and Victoria Chin, Esqs., for the General Counsel. Charles B. Waud, Esq., of McDowell-Cohain & Associates, Inc., of Oakland, California, for the Respondent Em- ployer. Richard Holober, International Representative, and Reva Olson, Representative, of San Francisco, California, for the Charging Party Petitioner. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard this case in trial on June 22-26 and July 2, 1981, in San Francisco, California. The case arose as follows. On September 25, 1980, Office and Professional Em- ployees International Union, Local No. 3, AFL-CIO (the Union, the Charging Party, or the Petitioner) filed a charge designated Case 20-CA-15698 against United Artists Theatre Circuit, Inc. (the Employer or Respond- ent). The charge was amended by the Union on October 15 and 21 and November 21, 1980. On November 25, 1980, the Regional Director for Region 20 of the Nation- al Labor Relations Board issued a complaint and notice of hearing regarding Case 20 -CA-15698. On February 5, 1981 , the Union filed a charge desig- nated Case 20-CA-16009 against the Employer. The charge was amended on May 28, 1981. On March 31, 1981, the Regional Director issued a complaint and notice of hearing regarding Case 20-CA-16009 which he amended on June 4, 1981. On August 26, 1980, the Union filed a petition desig- nated Case 20-RC-15160 thereby seeking to represent certain of the Employer's employees . The parties entered into a Stipulation for Certification Upon Consent Elec- tion approved by the Regional Director on September 17, 1980. An election was conducted on October 29; 1980, with the challenged ballots being sufficient in number to affect the outcome of the election. On No- vember 5 , 1980, the Union filed objections to the con- duct of the election and on February 5, 1981, withdrew certain of those objections . On March 10, 1981, the Re- gional Director issued a Report on Challenged Ballots and Objections. No exceptions were filed to that report. On March 30, 1981, the Board issued an order directing hearing directing that the Regional Director issue notice of a hearing to be held on certain challenged ballots and objections consistent with the Regional Director's March 10, 1981 report. On April 10, 1981, the Regional Director issued an order consolidating cases and notice of hearing which consolidated the above-captioned cases and directed a common hearing. Following certain hearing postpone- ments, the matter came on for hearing as noted above. The record was closed on July 2, 1981, and the due date for briefs was set by me for August 8, 1981. At the re- quest of the General Counsel, the date for filing briefs was extended to August 21, 1981 , by Associate Chief Judge William J. Pannier III. On further request of the General Counsel, Deputy Chief Administrative Law Judge James T. Barker extended the due date until Sep- tember 16, 1981. On the request of the Charging Party's representative, a third extension of thi^ filing date was granted by Deputy Chief Administrative Law Judge Barker until October 1, 1981. On the entire record , including substantial and very helpful briefs from all parties, and from my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT All parties were given full opportunity to participate at the hearing, to introduce relevant evidence , to exam- ine and cross-examine witnesses, to argue orally, and to submit posthearing briefs. 1. JURISDICTION The Employer is a Maryland corporation with an office and place of business in San Francisco, California (the facility), where it is engaged in the management of motion picture theaters. The Employer annually enjoys gross revenues from its operations of a value exceeding $500,000 and purchases and receives at its facility prod- ucts, goods, and materials valued in excess of $5000 di- rectly from points outside the State of California. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the National Labor Relations Act. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICE A. Background The Employer is principally engaged in the operation of a geographically diversified network of owned and leased motion picture theaters and the related sale of re- freshments, primarily in California, New York, and Texas. It also operates a variety of related enterprises many of which are organized as wholly owned subsidiar- ies. The Employer's principal office is located in San Francisco, California, with divisional, executive, and ad- ministrative offices located in San Francisco, California, Dallas, Texas, and Great Neck, New York. As of August 31, 1980, the Employer employed approximately 4300 full-time employees. i Respondent's president and chairman of the board is Robert A. Naify. Marshall Naify, brother of Robert, was chairman of the board of directors and chief executive officer until 1978. He remains a director, chairman of the executive committee, and honorary chairman of the board. Richard R. Naify is the purchasing agent and vice president of the corporation. Richard Naify is a first cousin to Robert and Marshall Naify and is the father of Jack Michael Naify. Brothers Robert and Marshall to- gether hold a majority of stock in Respondent. Richard Naify holds approximately 2 to 3 percent of the stock. Jack Naify holds some shares but these represent an in- significant portion of outstanding stock. The following individuals at all relevant times were admitted supervisors and agents of Respondent at the fa- cility and hold the titles following their names: Ron Zimmerman-treasurer and controller; Jack Han- kins-manager accounts payable; Peggy Hogeston-Tsu- pervisor; Jim Sherman-manger theater accounting; Nora McKee-payroll supervisor; Cindy Clark-office control supervisor; Paul Ziegler-theater payable super- visor; and John Gehling-supervisor. The supervisory status of employees Gloria Wyman and Lee Goodwin was in issue and will be discussed, infra. B. Specific Allegations of the Complaints The Union in August, September, and October 1980,2 engaged in an organizational campaign among certain of Respondent's employees at the facility culminating in an election held on October 29. The General Counsel has alleged a host of separate violations of Section 8(a)(1) and (3) occurring during and following this period. Al- though some allegations require a broader consideration of events, many turn on credibility or are, at least to a degree, factually uncontested. Specific allegations are discussed seriatum. 1 The bulk of this information is taken from the Employer's 1980 annual report prepared pursuant to secs. 13 and 15(d) of the Securities Exchange Act of 1934 2 All dates refer to 1980 unless otherwise indicated 1. Alleged violations of Section 8(a)(1) of the Act a. Conduct of Ronald Zimmerman (1) The Zimmerman-Cosme conversation Current employee, computer operator Joan Cosine, testified that a few days after August 16, she was sum- moned to Zimmerman's office where she had a conversa- tion with him alone. She recalled Zimmerman told her the Company could not afford higher wages, that the union was trying to "get into" the Company and "we really don't want that to happen." He continued that he was looking for somebody "inconspicuous" to attend union meetings unnoticed and report back to him as to who attended and what was said. Cosme responded, "Do you want me to be like a spy?" Zimmerman assured her that he was not going to force her, that the decision would be her own, and that he did not want her answer until the close of business that day. Cosme said that she would tell him of her answer within the hour but that she did not wish to return to his office. Rather she would call him. The conversation ended. Cosme did not report back to Zimmerman and apparently the matter was never raised again. Zimmerman placed the conversation as occurring in early August. In his recollection: "I asked Ms. Come if she would be interested in attending the next union meet- ing and, if she were, would she be willing to tell me what happened in that meeting." He recalls the termina- tion of the meeting as occurring consistent with Cosine's testimony. The two versions of the conversation have no substan- tive variance save as to the date. I credit each witness about the specific recollections of what was said. Cosine's recollection is more complete and detailed. I place the date of the conversation as a few days after August 16. Cosme signed her authorization card on that date and specifically recalled the conversation as occur- ring soon thereafter. Zimmerman's placement of the date of the conversation is less sure. Respondent's admitted agent solicited an employee to attend union meetings and report on employee activities. Such conduct violates Section 8(a)(1) of the Act irre- spective of any lack of threat or other coercion associat- ed with the solicitation and irrespective of the fact that the request was never acceded to or the solicitation oth- erwise acted upon. Custom Trim Products, 255 NLRB 787 (1981); TRW-United Greenfield Division v. NLRB, 637 F.2d 410 (5th Cir. 1981). (2) Zimmerman's letters to employees Sometime in early September a letter was distributed to all employees on Respondent's letterhead bearing Ron Zimmerman's typewritten name at the bottom of the page. The letter discussed a then upcoming Board hear- ing on the representation petition and presented the Em- ployer's opinions regarding the desirability of voting against the Union. The letter's fourth paragraph stated: You have always had the right to deal directly with the management of our Company. Should this union UNITED ARTISTS THEATRE get in, you will have voted away that right and you will have placed a group of outsiders who know nothing about our business between yourself and your Company. The General Counsel's amended complaint in Case 20- CA-16009 alleges that Respondent violated Section 8(a)(1) of the Act by "telling employees they would lose rights guaranteed under Section 9(a) of the Act if they selected the union as their collective bargaining repre- sentative." On brief Respondent construes the allegation to ad- dress question 16 in a handout distributed to employees by Respondent immediately before the election: Q. If the Union wins can it keep employees from being discharged? A. Of course not. Most contracts provide that employees can be discharged "for just cause." This is not different from the way things are now. It would be foolish of us to discharge anyone for no reason, and that is the way we will continue to op- erate, we will be obligated by law to discuss griev- ances only with the Union, not with you, AND THEREFORE YOUR RIGHTS DEPEND SOLELY ON WHETHER OR NOT THE UNION DECIDES TO PURSUE THEM ON YOUR BEHALF. Counsel for Respondent on brief acknowledges the pro- viso language of Section 9(a) of the Act which is by its terms inconsistent with the above-written communica- tions to employees, but he asserts that "for all practical purposes" the statutory requirement that a bargaining representative be present when an employee presents grievances to the employer is a "negation of the employ- ee's right." He concludes: It would seem, therefore, that in the realities of in- dustrial life as it exists today, the employer's state- ment is not so erroneous as to constitute a violation of the Act ... . The Board however has found and continues to find similar statements of employers to employees to be a "misstatement of the law which constitute threats on the part of Respondent to curtail employee rights and dis- continue employee benefits in reprisal against a choice by the employees to be represented by a union." Colony Printing, 249 NLRB 223, 224 (1980), enfd. in relevant part 651 F.2d 502 (7th Cir. 1981); Joe & Dodie's Tavern, 8 Sec. 9(a) of the Act provides- Representatives designated or selected for the purposes of, collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the em- ployees in such unit for the purposes of collective bargaining in re- spect to rates of pay, wages, hours of employment, or other condi- tions of employment- Provided, That any individual employee or a group of employees shall have the right at any time to present with- out the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargain- ing contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be'present at such adjustment 119 254 NLRB 401 (1981). Accordingly, I find each commu- nication violates Section 8(a)(1) of the Act. b. Conduct of Peggy Hogeston Joan Cosme testified that on the day of the election or a day or two before she had a brief conversation with Peggy Hogeston in the data entry room in the presence of fellow employees Gerodias and Handley and another employee. Cosme recalled that as she entered the room, Hogeston-with a smile on her face--asked "How are you going to vote, Joan?" Whereupon, Cosine replied, "I'm not saying one way or the other." Hogeston was not asked to describe the conversation she had with Cosine in detail or to place its date. When asked if she had at any time asked Cosme how she was going to vote in the election, Hogeston said she had not but rather had asked Cosme if she was going to vote. She also recalled Cosme did not respond but rather left the room. This was the only conversation Hogeston re- called with Cosme on the matter. No other witness testi- fied regarding the meeting. I credit Cosme over Hogeston regarding the specifics of the conversation. I do so primarily on demeanor. Fur- ther Cosme had a generally superior recollection of events and testified both as to this matter and the Zim- merman conversation, noted supra in detail. Lastly, it seems more probable, given the reaction of Cosme to the question, that the subject was less benign than an inquiry regarding her decision to vote or not. Thus, it is more than likely the question addressed the more confidential matter of her intended choice on the ballot. Asking an employee how she will vote in a representa- tion election violates Section 8(a)(1) of the Act. Green- park Care Center, 236 NLRB 683 (1978); Winter Garden, 235 NLRB 19 (1978); Martin-Brower Co., 233 NLRB 876 (1977). I so find here. c. Conduct of Cynthia Clark Linda Henry, a former figure clerk in the box office control department, then under the supervision of Cyn- thia Clark, signed an authorization card on August 5. She testified that on that day Clark asked her, and in her presence each of fellow employees Yolande Foster, Tim Keeton, Sharon Allen, Laurie Johnson, and Lynn Vin- cent,4 "Did you sign one of the union cards?" All the employees answered, "No." She testified further that Clark asked such questions of all the employees in the department. She also testified that in early to middle September-on three or four occasions-in association with scheduled union meetings, Clark asked the depart- ment employees about the union meetings and if they had participated. Most employees answered negatively. Clark, now an administrative assistant in the real estate department-a promotion from her previous position, evinced an inability to recall asking questions of Henry regarding the Union. She initially denied asking employ- ees about their participation in union meetings . On cross- 4 Henry could recall only the first names of Johnson and Vincent. The last names are here supplied by reference to the stipulation concerning employees in the various departments 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examination, however, when reminded of having given an investigatory affidavit to the Regional Office, she re- called asking a "couple of people" "out of my own curi- osity" about union meeting attendance. She indicated she had taken the earlier examination regarding interrogation as directed only to her employees in her own depart- ment. None of the other employees in the department were called to testify. Indeed, authorization cards of em- ployees Foster, Allen, Keeton, and Bascara were intro- duced through a handwriting expert after the General Counsel stated that all card signers had been subpoenaed but that because some were unavailable to testify a hand- writing expert would be used to identify the cards of those unavailable employees. Henry had a sound de- meanor although her testimony was vague and conclu- sionary and her recollection not sharp. Clark seemed to me to be very uncomfortable and highly defensive in her testimony. She presented a significantly inferior demean- or when compared to Henry. Indeed, it seemed she was anxious to deny the events as if her conduct was now an embarrassment to her. Clark's asserted confusion regard- ing the meaning of the questions of counsel regarding in- terrogation of employees seem contrived and her quick willingness to acknowledge interrogation when reminded she had given an earlier sworn statement revealed she was aware her testimony had not to that point been forthright and open.5 I credit Henry over Clark and find, therefore, that Clark interrogated Henry and other department employees regarding their union activities as described by Henry above. Such conduct by an admitted supervisor and agent of Respondent is a classic violation of Section 8(a)(1) of the Act and I so find. NLRB v. Los Angeles New Hospital, 640 F.2d 1017 (9th Cir. 1981); Parkview Acres Convalescent Center, 255 NLRB 1164 (1981). d. Conduct of John Gehling Former employee Leigh Wentworth testified that on the day of or the day before the election he was sum- moned to the office of his supervisor, John Gehling, for a one-on-one conversation. Wentworth recalled that Gehling asked him if he was for or against the Union. Wentworth said he was for the Union whereupon Gehl- mg responded that, although he did not agree with Wentworth's opinion, "You're entitled to it." Employee Shirley McGee testified to a similar circumstance with Gehling a week or so before the election. McGee was summoned to Gehling's office where they spoke alone. He asked her what her feelings were about the union. She indicated she had no view and he said that he re- spected her opinion and would not "pry." Gehling expressed a vague recollection of the Went- worth conversation and agreed generally with her on the date and substance of his inquiry. He did not testify re- garding the McGee attribution but, albeit vaguely and in- directly, alluded to a general approach to the employees in his department in which he attempted to ascertain em- 5 Respondent, on brief, points out that the affidavit was never offered into evidence Relevant here, however, is the witness' shifting recollec- tion. ployee sentiments regarding the union and present his opinions to them. The versions of events are not at variance save in degree of specificity of recollection, Each witness was credible. I find that conversations occurred as testified to by each, with the more specific recollection being relied on in each case. Thus, I find that Gehling, immediately preceding the election, met with employees in his office and, although politely and without express threat or overt attempt to influence employees, asked them their sentiments regarding the Union. Such systematic conduct by an admitted agent of Respondent violates Section 8(a)(1) of the Act and I so find. TRW-United Greenfield Division v. NLRB, 637 F.2d 410 (5th Cir. 1981), enfg. 245 NLRB 1135 (1979); Naum Bros., 240 NLRB 311 (1979). e. Conduct of Paul Ziegler Former employee John DeMarsh was hired by and worked under the supervision of Paul Ziegler in the ac- counts payable department. DeMarsh testified that in the latter part of September, he had occasion to pass by Ziegler's desk at which time Ziegler asked him how he felt about the Union. DeMarsh responded that he had not given it much thought because he did not want to discuss it with Ziegler. The brief exchange then ended. Employee Adrena Owens, also supervised by Ziegler, testified that on several occasions Ziegler asked her what she thought about the Union and if she was attending union meetings. She recalled that the conversations usu- ally occurred following union meetings and that Ziegler expressed sympathy and support for the Union and dis- approval of existing working conditions. Ziegler, no longer employed by the Employer, re- called the DeMarsh and Owens conversations and fur- ther recalled discussing the union with other employees during the period before the election. Ziegler's recollec- tion was far less detailed and specific regarding the con- versations but did not otherwise differ essentially from the versions of DeMarsh and Owens save in one respect. He recalled that his inquiries into employee union senti- ments were addressed to whether the employees had checked into other unions as well as the Union, rather than their sentiments about the Union in particular. I am of the view that substantively this is a distinction without difference but, if necessary, would credit the versions of DeMarsh and Owens over Ziegler. It seems clear that DeMarsh's statement to Ziegler that he did not wish to discuss the matter was in response to an inquiry about his personal sentiments regarding the Union. Owens testi- fied to a far broader line of inquiry than that admitted by Ziegler and Ziegler's testimony did not directly deny the testimony of Owens. Rather he summarized his version of the conversations in such a manner as not to address the issue of whether or not he asked her about union meeting attendance. Lastly, the demeanor of DeMarsh and Owens was superior to that of Ziegler during the testimony here in issue. Accordingly, I find that Ziegler engaged in the conduct described above in the testimony of DeMarsh and Owens. As noted previously such inter- rogations, even if concluded in an apparently friendly UNITED ARTISTS THEATRE and nonthreatening manner, violated Section 8 (a)(1) of the Act and I so find. f. Conduct of Lee Goodwin Former employee Gwendolyn Coggs testified that she had two conversations with Payroll Supervisor Lee Goodwin concerning the Union, but testified in detail only with respect to the second . The conversation oc- curred on the day before the election and arose when, in response to a general inquii y by Goodwin of employees asking if they had any questions, Coggs said she had a question. Coggs and Goodwin then went to the lunch- room where Coggs asked Goodwin questions regarding the Employer and the Union . During that conversation Coggs recalled Goodwin telling her that if the Union or- ganized Respondent the then-existing attendance sign in' and out procedures would be abandoned and a timeclock installed with a recalled rigid, rather than flexible, time and attendance policy. Goodwin recalled the two con- versations and the fact that each occurred at the initi- ation of Coggs. He also recalled that the conversations were informal discussions including many things, one of which was the Union. He specifically denied any recol- lection of discussing either a timeclock or attendance practice changes which would occur if the Union came in. Coggs had a sound demeanor and a clear recollection of the events. I credit her version. Although Goodwin was not incredible, I do not equate his failure to recall the specifics of.the conversation with a specific denial of the conversation as credibly testified to by Coggs.6 Ac- cordingly, I find that Goodwin told Coggs that if the Union came in, attendance policy would deteriorate to employees' detriment. The credited timeclock description can have no other fair interpretation. Such a threat is not in any way a prediction of consequences of bargaining or the result of an agreement with the Union. Rather it is a simple threat to diminish, however slightly, the quality of employee working conditions should the employees select the Union. Such a statement cannot but effect em- ployee sentiment regarding , the decision to support or oppose the Union. Such interference violates Section 7 rights of employees and, in so doing, violates Section 8(a)(1) of the Act and I so find. L'Eggs Products, 236 NLRB 354 (1978), enfd. in relevant part 619 F.2d 1337 (9th Cir. 1980). g. Conduct of Nora McGee Current employee and account clerk Fred Linde testi- fied to a conversation with his supervisor, Nora McGee, in or around the latter part of September . Linde is hear- ing-impaired and regularly , as on this occasion, commu- nicated with McGee by means of exchange of handwrit- ten notes. McGee tore and discarded the notes at the end of the conversation. Linde, however, retrieved the notes 6 The timeclock reference was also admittedly made to employees by Supervisor Hankins. Indeed , Supervisor McGee, who testified as did Goodwin that she attended management meetings regarding the Union and proper conduct for a supervisor, recalled that the lecturer indicated if the Union was successful, things might "tighten up" such as flexible attendance hours and lunch and breaktimes 121 and reassembled substantially all the pages which were placed into evidence. Each witness gave a summary version of the conversa- tion which McGee testified she initiated with Linde and Sonny Fong-a second hearing-impaired employee-to see if they had any questions about the Union. McGee placed the conversation as occurring in early October. The difference in dates is immaterial . The conversation being entirely written and the writing in evidence, I rely entirely on the handwritten documents. McGee's initial entry or question was "How do you feel about the Union?" Linde answered, "I want unions because of high cost of living." The exchange continued regarding eco- nomics, consequences of bargaining, and other matters. The initiating question of a supervisor to an employee during an organizing and election campaign , "How do you feel about unions?" as noted, supra, is a traditional violation of Section 8(a)(1) of the Act. I so find. h. The conduct of Gloria Wyman (1) Wyman's supervisory status The General Counsel alleges and Respondent denies that Advertising Coordinator Gloria Wyman was at rele- vant times a supervisor within the meaning of the Act and an agent of Respondent. Wyman shares an office with Christine Hanni who was hired in February 1980. Testimony was received from Wyman and Hanni regard- ing Wyman's supervisory status particularly with respect to her purported hiring and supervision of Hanni. Wyman denied she had the authority to hire, fire, transfer, discipline, or direct employees, including Hanni, in their work. Hanni testified that Wyman granted her time off, approved her vacation schedule, trained her, recommended she receive a wage increase, and, further, that she regarded Wyman as her supervisor. The circum- stances of Hanni's hire was closely litigated . Hanni was interviewed by Wyman who then reported the matter to her superior in' Los Angeles by telephone. Her superior indicated he knew Hanni and, as Wyman testified, he added "that, if I like her get the papers together and then talk to her again and see when she wanted to start." Hanni and Wyman then held additional discussions re- garding details of Hanni's hire and Hanni joined the staff. Later Wyman recommended a wage increase for Hanni to her superior who subsequently told Wyman that the increase for Hanni had been obtained. The sole issue in this portion of the case is Respond- ent's accountability for the actions of Wyman with re- spect to statements made to Hanni. Given that narrow issue, it is clear and I find that Respondent allowed Wyman to conduct herself in her employment in a manner to create in Hanni's mind, based on objective evidence, the reasonable belief that Wyman had author- ity to hire and to effectively recommend wage increases for employees in Hanni's position. Irrespective of the actual authority Wyman held or exercised, H[anni could properly conclude Wyman was her supervisor and that she had the noted authority . Thus, it is clear that Wyman had the apparent authority to hire and to effectively rec- ommend wage increases and I so find. Given this finding, 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an agency relationship is established based on apparent or ostensible authority and it is unnecessary to make fur- ther findings with respect to Wyman's supervisory status.7 (2) Allegations of misconduct Hanna testified to a variety of conversations with Wyman regarding the Union. In early September just after a union authorized leaflet had been disseminated, Wyman initiated a conversation with Hanni alone in which Wyman asked if she had signed a union card and if she had gone to any union meetings. When Hanni said she had gone to union meetings, Wyman asked what went on at them. Hanni said people asked questions re- garding the union. Wyman then asked who had attended the meeting, whereupon Hanni said a lot of people she did not know. Later in the second week of September, Wyman initiated a conversation alone with Hanni in which she asked if Nick Thirkettle, Grace Morones, and Lou Chiappe had gone to the union meetings. Hanni said yes and Wyman said "then they are all for it." A third conversation occurred in late September or early Octo- ber in which Wyman expressed fears that a strike would occur and a fourth on October 29 in which Wyman ex- pressed an intention to vote against the Union because she could not afford to go on strike. Wyman admitted she had discussed the Union with Hanni but could not recall specifics. She denied asking about union meetings or the identity of union supporters. I credit Hanni over Wyman primarily on demeanor. Hanni seemed to me to be particularly aware of the obli- gation of her oath and the formality of the proceedings. She endeavored to answer directly the questions asked her. Wyman seemed to me to have had a sense of show as if her testimony were a performance. Her answers were often designed to be more than directly responsive to the question. I do not believe Hanni was misstating her recollection of events. Her recollection of the specif- ic conversations and Wyman's mention of other employ- ees by name is not likely to have been the product of faded memory or misrecall. Thus, with regard to the spe- cific conduct attributed to Wyman by Hanni and denied by Wyman, I find the events occurred as testified to by Hanni. I discredit Wyman where her testimony is not consistent with Hanni's version of events. (3) Analysis and conclusion Respondent's Responsibility for Wyman's Statements to Hanni Were Wyman a supervisor and clearly disassociated from the unit, her conduct, found supra, would clearly violate Section 8(a)(1) of the Act consistent with cases cited supra. Wyman, however, admittedly was listed on ° Were it necessary to do so, I would find Wyman during the relevant period was a supervisor within the meaning of Sec 2(l1) of the Act. First, it is clear Wyman was given the discretion to hire Hanna Second, as noted, infra, I have credited Hanna over Wyman on other matters Were I also to credit her here, as I would, if necessary, based on demean- or, it is clear that Wyman did in fact have the indicia of supervisory au- thority testified to by Hanni and that she was in fact Hanni's supervisor during the relevant period the Employer's prepared election eligibility list submitted to the Union and voted in the election without challenge. A longstanding line of cases8 stands for the proposition that an employer is not responsible for the conduct of a supervisor if that supervisor is in the unit and there is no evidence that the conduct was encouraged , authorized, or ratified by the employer or that the supervisor acted in such a mariner as to lead the employees to reasonably believe that she was acting on behalf of management. On the facts of this case, I do not find this line of cases ap- plies to Wyman's interrogations of Hanni. Irrespective of any final answer to the question of Wyman's unit placement, Respondent's conduct in hold- ing out Wyman to Hanm as if she were her supervisor combined with the specific statements Wyman made to Hanni, make it clear Hanni would reasonably conclude Wyman was acting on behalf of management during her interrogations and I so find.9 Accordingly, I find that through the above acts and conduct, Respondent has violated Section 8(a)(1) of the Act. i. Conduct of John Nankin The multiple allegations of the complaints regarding statements of Hankin were addressed by a host of wit- nesses. These allegations are best presented as follows:l 0 (1) Attributed by Ricky Turner Former employee Turner was hired on September 18. He testified that Hankin asked him at that time how he felt about unions. Hankin recalled asking Turner if he was voting for the Union. Either version of events is a violation of Section 8(a)(1) of the Act and I so find. Turner testified that Hankin told him that if he intend- ed to vote against the Union then he should be able to vote but if he was going to vote for the Union then he should not be able to vote because management needed all the votes it could get. Turner placed this remark as part of the same conversation noted above. The conver- sation included, in Turner's memory, a letter by Zimmer- man which Hankin had him read. Hankin initially denied that he had had a discussion with Turner which included a letter by Zimmerman, but later suggested it was possi- a Commencing with Montgomery Ward & Co, 115 NLRB 645 (1956), see also Times-Herald, 253 NLRB 524 (1980) 9 Wyman did not merely engage in banter regarding the Union that one might expect from a fellow unit member freely discussing the issues associated with a union organizing campaign Rather her remarks were in part directed to learning the identity of those who signed union cards and attended union meetings and to learning union sympathies of named em- ployees These inquiries would seem to an employee in the position of Hanni more likely the product of management's interest-proper or im- proper-in evaluating the strength of the union opposition and the possi- ble result of the campaign than the curiosity of a fellow unit member The contents of the third and fourth conversations are otherwise. I do not find that Wyman's statements in those conversations may be attrib- uted to Respondent 10 A variety of witnesses fixed conversations with Hankin as occurring in August before the time Hankin testified he began his employment No documentary evidence was offered to reliably fix the date of Hankin's employment commencement The exact dates of his hire and the various conversations in any case, while a factor in evaluating credibility, are not critical to resolution of the issues in this portion of the case UNITED ARTISTS THEATRE ble but that he did not recall. Hankin also denied making the other statements attributed to him. I credit Turner about these events. His recollection is clear and quite specific. Hankin had no clear recollection of the conversation. His demeanor during his testimonial denials, qualified as they were, indicated to me that Hankin was not searching his memory for the specifics of conversations but was rather merely denying remarks attributed to him based on a less than conscientious effort to recollect. Thus, I find that Hankin did suggest to Turner that his eligibility to vote depended on his ulti- mate preference for or against the Union. While this as- sertion is substantive nonsense, it is not necessarily im- probable that such an assertion was made. Hankin was admittedly ignorant of the rules regarding unions and the election process early in his employment with Respond- ent. A statement to an employee that his eligibility to vote in an NLRB election is dependent on his selection on the ballot is a misrepresentation of the law. Further, it is a statement that exercise of statutory rights depends on the employee's union or nonunion preferences. Such a statement from an employee's new employer is reason- ably calculated to chill employee exercise of Section 7 rights and therefore violates Section 8(a)(1) of the Act. Turner also testified to an occasion when employees returned from a union meeting wearing-apparently for the first time-buttons which identified the wearers as supporters of the Union. Turner recalled that Hankin, after noticing the buttons worn by his staff and under- standing their significance, spent a period of time con- spicuously staring at the buttons worn by the employees. Thereafter, Turner observed Hankin go into Sherman's office. Later that day Turner overheard Hankin ask em- ployee Issac Price for a list of the first and last names of the employees in the group, Price inquired of the reason and Hankin declined to explain. Hankin recalled that em- ployees frequently wore union buttons. He also said he had asked several employees in the group for names of employees but only as a means of committing' them to memory as a new employee himself. The General Counsel argues that Respondent, through Hankin's conduct described above, created the impres- sion among employees that their union activities were under surveillance and engaged in actual surveillance of union activity. I disagree. There must be more to illegal surveillance than otherwise benign conduct by a supervi- sor where the union activity is open and ongoing at the worksite. Subjective feelings of employees are not suffi- cient to sustain such an allegation. Honda of Mineola, 218 NLRB 486 (1975). There is insufficient evidence on this record to sustain the General Counsel's burden here. I shall therefore dismiss the allegations of the complaint directed to this conduct. (2) Attributed by Leigh Wentworth Wentworth testified to a conversation initiated by Hankin a week or two before the election regarding the Union. Hankin asserted he was against the Union. Went- worth answered that she was for it. Hankin, in a general- ly promanagement argument, reasserted a theme he had raised earlier in group meetings, see discussion infra: If the Union came in, timecllocks would be installed by 123 management-with a resultant tightening in working conditions. Hankin recalled a single discussion with Wentworth in a group setting and could not recall any similar discussion with her thereafter. Based on demean- or and my conviction that Hankin's recollection of events is either faded or has not been diligently searched, I find his denials unconvincing. I credit 'Wentworth about the above events. As previously discussed, the as- sertion that working conditions would deteriorate if the Union organized Respondent is a simple threat without pretense and is without the immunity that Section 8(c) of the Act affords objective predictions of events in other circumstances. Hankin's statement violates Section 8(a)(1) of the Act and I so find. (3) Attributed by Roseann Gordy Current employee Roseann Gordy testified to a chance meeting with Hankin in early August. She testified that as she was introducing her son to her ;superiors at the fa- cility she met Hankin. Hankin ignored her son and told her: "I understand the union's coming in." Gordy ig- nored the remark and the encounter ended. Hankin re- called no separate conversation with Gordy save for the group meetings discussed infra. I found Gordy a very credible witness with an impressive demeanor. As noted supra, I distrust the quality of Hankin"s denials based on his asserted absence of recollection. I credit Gordy over Hankin here. Hankin's statement does not rise to the level of a coer- cive interrogation under Board cases. The remark does not reasonably solicit a response which will reveal the employee's knowledge of union activities. Nor does Han- kin's comment improperly create the impression of sur- veillance of employee's union activities. The statement does not reveal how Hankin's understanding was formed. It could not be reasonably assumed by Gordy based on this remark that employee union activity was under em- ployer surveillance. South Shore Hospital, 229 NLRB 363 (1977); G. C. Murphy Co., 217 NLRB 34, 36 (1975). Ac- cordingly, I will dismiss that portion of the complaint di- rected to this conduct. (4) The group meetings As accounts payable manager, Hankin supervised 16 employees who were organized into four teams of four employees each. Each team was headed by a group leader. Within a few weeks of starting his job, Hankin met separately with each group, without the group lead- ers. In one group was Ms. Wentworth and Ms. Sharon Nash. In another was Allen Mason, Annette Morrison, and Roseann Gordy. Wentworth testified that the meetings occurred in Sep- tember and that Hankin discussed a need for improved attendance. She recalled that Hankin asked if she had at- tended any union meetings. He also asked what she thought of the Union. She said she was prounion. Hankin then, in her recollection, became "chummy"' and said that her prounion view was "good." He noted, however, that if the Union came in there would not be as much employee "freedom" and that timeclocks would be in- stalled. She also recalled that the she asked Hankin about 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage increases. Hankin replied that he could not talk about giving raises because the union was "tying his hands" but that he was going to work on it when he had a little more time. Gordy testified that Rankin suggested there would be a lot of changes made and that employees would be "weeded out." She did not recall Rankin initiating the term "troublemakers" but said he later used the term in discussing problems at the facility. He discussed new im- provements in the physical surroundings of the work place including potted plants, etc. Allen Mason chal- lenged Rankin in this regard suggesting the employees should receive the moneys which would otherwise be expended by the Employer for new furnishings directly in the form of wage increases. Gordy recalled that a new system involving three warnings preceding a discharge was also mentioned by Rankin. Allen Mason testified that Rankin asked if they had signed authorization cards and the names of others who signed. He also asked if the employees had attended union meetings and the names of other employees who had attended. Mason recalled that he told Rankin that he had attended meetings. Mason also recalled that Hankin said that he would like to give employees raises but with the union matter his hands were tied. Rankin recalled Mason's remarks at the group meet- ing. Rankin testified that Mason responded to his an- nouncement of upcoming physical improvements by "saying something about instead of the union coming in we should get better salaries, that the pay was too low." Hankin responded that his "hands were tied, I just had no position to come from." Hankin specifically denied asking employees about union meetings or who had signed union authorization cards. He could not recall Mason saying anything about filling out a union card. Save for the "time clock" remarks which he admitted, Rankin specifically denied making any remarks regarding adverse consequences to employees if the union orga- nized the facility. He specifically denied threatening to get rid of or "weed out" employees. Rankin recalled that after meeting with management attorneys regarding proper conduct during the Union's campaign "I think mainly what I did was asked [sic] them if they were voting for the union or not voting for the union." As noted previously, I have no confidence in Hankin's recollections concerning what he said and did during this period. It is clear that initially he was inexperienced re- garding organizational campaigns and not familiar with the constraints of the law on management's conduct. Further, I have consistently discredited him regarding remarks attributed to him by employees which remarks he denied having made. I continue to do so here. I find Hankin's demeanor to be significantly inferior generally to that of employees-save as specifically noted-and be- lieve he found it convenient to fail to recall the extent and strength of his remarks to employees regarding union matters. Rankin, it seemed to me, was endeavoring to admit a portion of his conduct but to deny those re- marks which in his current view were particularly em- barrassing to admit. In contrast to the testimony of Hankin, Wentworth, and Mason gave corroborative testi- mony regarding Hankin's interrogations concerning union activities and of Hankin's suggestion that the Union had "tied his hands" with respect to wages. Gordy, a current employee, has been credited earlier based on her sound demeanor. She exhibited a specific recollection of Mason's remarks at the group meeting as well as Hankin's statements he was going to get rid of or "weed out," in his adopted phrase, "troublemakers." I rely on each employee's testimony for the portions of the meeting they specifically recall and, disregarding Han- kin's denials, find the meetings occurred as described by this credited composite of testimony. Based on this finding it is clear that Rankin violated Section 8(a)(1) by: (1) interrogating employees about their union activities and the union activities of other em- ployees in signing authorization cards and attending union meetings; (2) telling employees that the union "tied his hands" on wages increases; (3) threatening employees with adverse working conditions, i.e., loss of "freedom" and the imposition of a timeclock if the Union came in; and (4) threatening to get rid of "troublemakers." I do not find, however, that Hankin's newly imposed warning system was created because of the Union or that the promise of new furnishings were other than business decisions. Rankin was a new employee and such sugges- tions could well come from such a new supervisor and be implemented at his request. (5) The Hankin-Chris Graham event Employee Chris Graham and other employees attend- ed a union meeting during the organizing campaign. On their return, Rankin and Graham had a brief conversa- tion in front of other employees and then the two en- tered Hankin's office. Current employees Owens and Trujillo and former employee John DeMarsh testified similarly that Hankin approached the group and asked Graham if he had gone to the union meeting. Graham in- dicated he had. Rankin told Graham to step into his office to talk. Graham and Rankin did so. After a period of time Graham left Hankin's office. Rankin testified that Graham on several occasions came to him and volunteered to tell him about the union meetings. Rankin recalled one occasion where Graham mentioned the matter on the "floor and I didn't want to get caught up out there so I said let's just come in my office and talk about it." Hankin also testified: "Graham told me he had been to a meeting and that he wasn't for the union and if I'd like to know what happened in the meeting and I said yah. And we went into my office, with the door closed . . . ." Graham did not testify. There is essentially no substantive difference between the versions testified to or their legal consequences. Were there a difference, I would unhesitatingly credit the corroborated version of employees over Hankin's for the reasons noted supra. Hankin's conduct violated Sec- tion 8(a)(1) of the Act for it created the impression among the employees that their union activities were under surveillance. The issue here is the impression not the reality. Whether or not Graham volunteered the UNITED ARTISTS THEATRE 125 union meeting information is immaterial." Hankin, in front of the group of employees, expressed interest in re- ceiving information about union meetings and then joined Graham in his office--clearly creating the impres- sion among the employees that their union activities were then being divulged. Such conduct violates the Act and I so find. (6) By Adrena Owens Current employee Adrena Owens testified that about August 12 she walked into Hankin's office and he told her, "I understand you guys are trying to form a union." She responded, "Yes" and he said that he was for the Union because working conditions were terrible. Owens agreed and left immediately thereafter. Hankin specifical- ly denied at any time making the statement attributed to him. He admitted, however, "I'd asked her one time if she was for the union, if she was going to vote for the union." He recalled Owens did not answer the question but added he knew she was for the union because she wore "those buttons" all the time. I credit the clear recollection of Owens over the pre- viously discredited recollections of Hankin for the rea- sons given, supra. I find Hankin's testimony about his re- marks to Owens refers to a separate occasion. In either version of the conversation, however, Hankin's statement violated Section 8(a)(1) of the Act and I so find.12 (7) Attributed by Charles Suntheimer Suntheimer worked for the Employer from June 27, 1980, until April 1981, but was on hospital leave from October 23 through November 3. He testified that he was invited into Hankin's office on an afternoon in late August or early September by Hankin and there had a conversation with him alone. Suntheimer testified that Hankin asked him if he had gone to the union meeting. Suntheimer answered that he had. Hankin then asked who else had attended the meeting. Suntheimer said he could not say. Hankin asked if Shirley McGee had at- tended. Suntheimer did not respond. Hankin then asked what went on at the union meeting. Suntheimer said he would not tell Hankin and that he should "watch what he says and how he says it." In early October Suntheimer had a conversation with Hankin alone concerning office morale at which time employee Adrena Owens' name came up. Suntheimer testified: i i Graham related the events of the union meeting to Hankin once in the office but, although overheard by an employee listening outside, I find the conversation was not intended to be public There is no evidence Hankin violated Graham's Sec. 7 rights and no other employees were le- gitimately privy to what occurred in the office Thus what was said in the closed office does not violate the Act. 12 The difference between the remark found violative here and the previous remark testified to by Gordy is that Hankin's remark to Owens identifies her as one of the union organizers Such a statement is both threatening (because Owens stands revealed as a union activist) and cre- ates the impression of surveillance The specific identification of Owens as a union supporter is unlikely to have been learned from mere rumor The statement implies surveillance as the source of the information and thus creates the impression that union activities are being observed Then [Hankin] says to me, "Adrena [Owens] really thinks she's hot with this union thing, doesn't she?" And I didn't really respond and then the phone rang, and we-I started to leave the office and as we opened the door we heard Adrena's voice, and he said, in a mimic sort of deep South plantation worker sort of voice, "There she goes again run- ning her mouth. She thinks she's so hot and no- body's her boss. Little does she realize that when the union gets in, she will be one of the first ones to go." Ms. Owens is black, Hankin and Suntheimer are white. Suntheimer testified to a conversation with Rankin on the morning of November 5. Hankin told Suntheimer that he had put Adrena Owens on assignment in a re- search project on a lower floor in the "hopes of getting her sick of it and quitting." Suntheimer also testified to various conversations with Hankin concerning employee raises. Suntheimer was promoted to group leader on Sep- tember 18 or 19 and placed two conversations with Hankin as occurring before his promotion and the re- maining conversations after. In these conversations Hankin told Suntheimer that he had across-the-board raises planned for employees "when this union thing is over." He variously suggested that once the "union thing" was over raises would come "easier"; they would be larger and they would come more often. Although Suntheimer was not at work due to his health as noted, supra, he came into the office about the day before the election and had a conversation with Hankin. Hankin asked him, in Suntheirer's recollection, if he was coming in to vote the next day. Suntheimer said yes. Hankin asked him how he felt about the Union. Suntheimer responded that if what Hankin said in the past was true, employees did not need the Union. It is apparent from Suntheimer's testimony that Hankin discussed a variety of things with Suntheimer including matters, like Adrena Owens, which were not Sunth- eimer's concern as a group leader. Suntheimer acknowl- edged that Hankin "discussed a lot of things with me I didn't understand why he was discussing with me." Hankin addressed portions of the conversations testified to by Suntheimer. He did not deny all the remarks attrib- uted to him nor the apparently free communication that occurred between the two. As noted, supra, I found Hankin's demeanor unsatisfactory during his examina- tion. I place no reliance on his testimony with respect to these conversations save where not inconsistent with that of Suntheimer. Suntheimer demonstrated a sound de- meanor. While it may appear implausible that Hankin would reveal such confidences to Suntheimer, I note that Suntheimer was promoted to group leader under Hankin during this period and, further, there was no denial, direct or indirect, by Hankin that this open relationship existed. Accordingly, for all the above reasons-includ- ing the important proposition that l[ do not believe Suntheimer would deliberately falsify the conversations but that Hankin could well self-servingly fail to recall and therefore deny them-I credit Suntheimer's testimo- ny over Hankin. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By the statements found above, Respondent, through Hankin, engaged in the following conduct involving Suntheimer : (1) interrogated him about his union activi- ties and the union activities of others, (2).by indicating Owens was prounion and would be terminated when the union got in, threatened employees with termination be- cause of their union activities, (3) by stating Owens was being treated in a manner designed to induce her to quit, indicated he was attempting to constructively discharge employees because of their union activities , (4) promised increased benefits for employees when the Union was de- feated, and (5) interrogated him concerning his vote in the election. Each of these acts and conduct separately violates Section 8(a)(l) of the Act and I so find. 2. Alleged violations of Section 8(a)(3) and (1) of the Act a. The discharge of Allen Mason (1) Focusing on the graffiti events as the key element in the case The circumstances of Mason's discharge are somewhat unusual and produced arguments by Respondent and the General Counsel which are directed to fundamentally different elements of the evidence . There is no dispute that, following a series of events described in detail infra, Respondent terminated Mason through the intervention of higher management and that neither first level super- vision nor Mason were given the reason , which Re- spondent now asserts is the true reason, for Mason's dis- charge. Mason was an open union advocate and had clearly displeased Hankin with his aggressive solicitation of wage increases for employees. Hankin, as noted supra, repeatedly violated the Act in dealing with employees under his supervision . There is substantial credible evi- dence to support a finding that if Hankin had been re- sponsible for the termination, it would have been because of Mason's union and protected concerted activity. For purposes of this analysis, I assume that there was no proper basis for Hankin or any other agent of manage- ment-given Respondent's personnel practices and the uncontradicted testimony of knowledgeable witnesses about Mason's satisfactory job performance-to fire Mason save for the graffiti events discussed infra. Respondent argues that Mason's termination resulted from the graffiti events and treats those events as its entire defense to the discharge . The General Counsel argues that the discharge was based on Mason's conduct independent of the graffiti question and that Respondent is asserting that matter as a sham and pretext to cloak the true illegal motive for the discharge, i.e., the desire to obtain the removal of a known and vocal union advo- cate. The General Counsel asserts repeatedly that the fact that Respondent did not tell Mason or lower level supervision of the new asserted motive for the discharge is conclusive evidence of its falsity. For the reasons set forth in greater detail immediately below and in my analysis of the graffiti events, I accept Respondent's assertion that these events were the sole cause of Mason's termination . Without commenting on the wisdom of the decision, Respondent, at the time it terminated Mason, had reason to withhold the graffiti ra- tionale from Mason as the reason for his termination. Thus, the union election campaign was underway. A dis- charge for the writing of prounion slogans was sure to produce controversy. The two witnesses on which Re- spondent would have to rely to support its claim of mis- conduct had been given assurances of confidentiality. Re- spondent therefore may fairly have perceived that its as- sertion of the true reason for Mason's discharge would have caused more difficulty than the assertion of a false but, in its view, less controversial reason. In summary then, while I accept the proposition of the General Counsel that, save for the graffiti events, Re- spondent had no proper basis to fire Mason, I accept the argument of Respondent that these events were in fact the sole basis of Mason's termination. Thus, I find that the merit of the discharge allegation turns on an exami- nation and analysis of the graffiti events. (2) The graffiti events Respondent's facility utilizes a two-story elevator. It also contains separate public restroom facilities for men and women. There had been no significant or unusual occurrences of graffiti or written slogans appearing on elevators or in restrooms until the union campaign was underway. Commencing in August slogans in blue mark- ing pen began to appear on the walls of the elevator and the men's restroom . There was no evidence offered con- cerning similar markings, if any, in the women's rest- room. The Employer regularly removed the marks, but graffiti would reappear in the elevator within a day of cleaning and would reappear in the restroom within a week. The slogans were in support of the Union and/or against the Company.13 On September 8, Zimmerman issued a memo on Re- spondent's letterhead over his name which was distribut- ed to all employees. It stated: TO ALL UATC EMPLOYEES: RECENTLY ONE OR MORE PEOPLE HAVE BEEN WRITING GRAFFITI ON THE WALLS OF THE ELEVA- TOR AND WASHROOMS WHICH ALL OF US USE. OBVI- OUSLY, THIS IS DESTRUCTIVE TO THE WORKPLACE WE ALL SHARE. PLEASE BE ASSURED THAT THE COMPANY WILL TAKE STEPS TO TRY TO PREVENT THIS IN THE FUTURE. ANYONE FOUND TO HAVE BEEN INVOLVED IN DEFACING OUR PROPERTY OR SIMILAR ACTS WILL BE IMMEDIATELY DISMISSED. MOST OF YOU , I AM SURE, WOULD LIKE TO ENJOY NICE SURROUNDINGS AND DO NOT APPROVE OF RECENT DESTRUCTIVE ACTIONS. IF ANY OF YOU KNOW WHO IS RESPONSIBLE , PLEASE LET ME OR YOUR SUPERVISOR KNOW . ANY INFORMATION WE RECEIVE WILL BE TREATED CONFIDENTIALLY. 13 Examples are "Unionize Now," "Fuck United Artists," "We hate UATC," "Union Now or Pow," and "No More Passes, You Fat Asses " The term "Passes" is an apparent reference to the fact that Respondent issued passes of free tickets to employees for certain film showings. UNITED ARTISTS THEATRE 127 THANK YOU FOR YOUR HELP. Former employee James Arnold, then employed as a data control clerk, testified that about a week before he received the September 8 Zimmerman memo he had been in the cafeteria where he overheard Mason-who he knew by sight and identified at the hearing-speaking with a woman Arnold did not know but who he thought was a new employee. Arnold testified that while in close hearing distance but out of direct sight, he heard Mason "bragging" that he had been the one writing graffiti on the bathroom walls. Former employee George Fazekas, a prounion em- ployee, testified that 3 or 4 days before he received the Zimmerman memo he had occasion to take the elevator clown to the entrance with a friend. He observed that the elevator had been recently cleaned and was free of graf- fiti. As he left the elevator, he passed Mason who en- tered the elevator and took, it to the upper floor. Mo- ments later Fazekas decided to return to the second floor to retrieve a forgotten item. He proceeded to the eleva- tor entrance and entered the now empty elevator which had moments before recycled down from its previous use. Fazekas entered the elevator and observed that the elevator, clean minutes before, was defaced with graffiti. Fazekas and Arnold had occasion to discuss their ob- servations on reading Zimmerman's memo. They decided to report their experiences to Zimmerman. Later in the working day of September 8, they jointly went to Zim- rnerman's office and there asked to speak to him. Zim- rnerman spoke to each separately. Arnold and Fazekas, in each instance corroborated by Zimmerman, testified that they related the above-described observations to Zimmerman. Zimmerman further recalled that Fazekas added that his motive in reporting to Zimmerman was his belief that the continuing graffiti was hurting the union campaign which he supported. Arnold told Zim- nnerman, in Zimmerman's recollection, that he also felt that the practice of issuing free theater passes might be jeopardized if the defacing was not stopped. Zimmerman thanked each for his report and assured them that their reports would be maintained in confidence. The employ- ees then left and, insofar as the record reflects, told no other employees of the events. Allen Mason specifically denied ever claiming respon- sibility for writing the graffiti or for ever actually writ- ing it. He could not recollect the incident involving Fa- zekas and the elevator. Zimmerman testified that the reports of Arnold and Fazekas had not been anticipated by him and he had not previously suspected Mason. Due to the lateness of the hour he took no further action that day. The next morn- ing he called his labor counsel, Steven Conhain. He re- lated the reports he had received and asked Conhain's advice. Conhain asked how long Mason had been em- ployed and what type of employee he was. Zimmer- man--apparently while holding the telephone line- learned from Sherman and reported to Conhain that Mason was a probationary employee with less than 90 days' service and that Sherman and Hankin thought Mason had a poor attitude. Conhain counseled no action be taken that day but suggested they further discuss the matter at their then scheduled meeting to be held the fol- lowing day, September 10. At that meeting Zimmerman and Conhain again discussed the situation. Conhain ulti- mately advised that Mason be terminated but that neither Mason nor others be informed of the true reason. Rather, he counseled that Mason be terminated assertedly be- cause of his bad attitude during his probationary service. Zimmerman acceded to Conhain's advice and told Sher- man to fire Mason due to his poor attitude during his probationary period. Zimmerman did not talk to Mason nor did he reveal to Sherman-or Hankin the reason he had decided to discharge Mason. Mason was thereafter terminated. The testimony regarding the conversations Zimmer- man had with Arnold, Fazekas, and Conhain are uncon- tradicted. Conhain did not testify. Arnold and Fazekas corroborated Zimmerman . I find that the events of Sep- tember 8 forward occurred as testified. I further find that Zimmerman neither initiated the actions of Arnold and Fazekas nor did he have reason to disbelieve their re- ports. I therefore find that Zimmerman believed that Mason was responsible for the graffiti as reported and that his subsequent actions were based on that belief 14 (3) Analysis and conclusion At the threshold I find that the writing of graffiti on elevator walls and restroom walls of an employer is not protected activity. Leon Ferenbach, 213 NLRB 373, 387 (1974); Emerson Electric Co., 196 NLRB 959 (1972). Fur- ther the language of the various graffiti is also unprotect- ed as obscene and offensive. Southwestern Bell Telephone Co., 200 NLRB 667 (1972). It is further apparent, and I find, that Respondent perceived the graffiti as "destruc- tive to the workplace" and, before the identity of the perpetrator was learned, had announced an intention to immediately dismiss those employees responsible.15 I have previously found that Respondent had a good-faith belief that Mason was the perpetrator. I have also found that Respondent had circulated a statement of intention to fire the perpetrator. Having found this conduct is not protected activity, I therefore find that Mason was not fired for his union or protected concerted activities.' Two issues remain for consideration. First, given my finding that Zimmerman had a good-faith belief that Mason engaged in the graffiti writing, is the question of who actually wrote the graffiti relevant? The Supreme Court ruled in NLRB v. Burnup & Sims, 379 U.S. 21 (1964), that a good-faith but erroneous belief by an em- ployer that an employee had engaged in misconduct during the course of protected concerted activity was not a defense to the allegation that a discharge based on 14 The General Counsel argues that Mason was never confronted with the allegations and therefore Respondent was not in fact concerned with their truth I disagree As noted, supra, there were reasons to avoid publi- cizing the basis of the termination in the middle of the election campaign 15 There was no evidence offered regarding the existence of any com- pany policy, rule, or practice regarding defacing of property 16 In the alternative, consistent with the Board's recently established casualty standard set forth in Wright Line, 251 NLRB 1083 (1980)f enf denied in relevant part 662 F 2d 899 (1st Cir 1981), I find that Respond- ent would have fired Mason in any event irrespective of his union and/or protected concerted activity 1,28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the misconduct violated Section 8(a)(1) of the Act. Jus- tice Douglas writing for the Court added in obiter dicta, "Had the alleged [misconduct] been wholly disassociated from Section 7 activities quite different considerations might apply" (379 U.S. at 24). The question then arises: Was the misconduct herein sufficiently associated with protected activity so as to require more than a good-faith belief by Respondent that Mason engaged in the miscon- duct, i.e., need the Employer be correct in its belief? Longstanding doctrine establishes employee rights to dis- play slogans, etc., at the workplace absent special consid- erations. Republic Aviation Corp. v. NLRB, 234 U.S. 793 (1945); St. Joseph's Hospital Corp., 225 NLRB 348 (1976); Singer Co., 199 NLRB 1195 (1972); Publishers Printing Co., 246 NLRB 206 (1979). Thus the dissemination of prounion slogans may constitute protected activity. Does this decisional line sufficiently approach the instant graf- fiti situation to render the misconduct attributed to Mason "not wholly disassociated from Section 7 activi- ties?" I conclude not. My conclusion turns on the propo- sition that the writing of graffiti or defacing of the Em- ployer's property as a means of the propagation of slo- gans is under no circumstances a protected activity and therefore, at the threshold, the conduct is disassociated from Section 7 activity and is clearly unlike misconduct occurring during the course of protected activity. There- fore, I find Respondent's good-faith belief that Mason en- gaged in the described misconduct constitutes a complete defense to the allegation that Mason was illegally termi- nated. I therefore find the question of whether Mason did or did not in fact have any role in defacing of prop- erty is irrelevant. t 7 A second issue remaining is whether or not Conhain, by asking Zimmerman what kind of employee Mason was before recommending his termination, was by impli- cation suggesting that had Mason been an excellent em- ployee he would not have been fired. Were this so, it 17 Because of the possibility that reviewing authority may reject or modify my conclusion in this respect, and in order to avoid a resultant remand for further findings on the issue, I make the following conditional findings regarding the graffiti I fully credit the testimony of Arnold and Fazekas who were superior witnesses with sound demeanor and no ap- parent motive to testify falsely Indeed Fazekas both expressed and the record substantiates a prounion position which buttresses his credibility. Mason's testimony with respect to this issue is unworthy of belief Mason's direct contradiction of the statements Arnold attributed to him first as a witness on the stand and second through his outbursts as a spec- tator in the courtroom during the testimony of Arnold were unpersua- sive. I also found his denial that he had defaced the facility to be incredi- ble, largely based on demeanor, Considering the indirect evidence deriv- ing from the credited testimony of Arnold and Fazekas and the specifi- cally discredited denial of Mason, I find that there is sufficient evidence to find-even assigning the burden of proof to Respondent-that Mason did in fact "brag" of writing graffiti within the hearing of Arnold and that he wrote graffiti on the elevator walls consistent with the description of Fazekas. In making this credibility resolution, I also discredit the testimony of Adrena Owens that another employee, Keeton, no longer with Respond- ent, told her soon after Mason's termination that Keeton had written on the lavatory and elevator walls and that Mason had been fired for some- thing he did First, there is no evidence that the graffiti situation was known to be the basis of Mason's termination at the time of Keeton's pur- ported admissions to Owens. Second, Owens had only recently disclosed to the General Counsel that she had had this conversation. Lastly, Owens exhibited a significantly inferior and unconvincing demeanor during her testimony concerning this conversation. may be argued that the report Zimmerman received and related to Conhain, that Mason had a "bad attitude," was a contributory cause of Mason's termination. Thus, Mason would not have been terminated if Conhain had been told Mason was a satisfactory employee. If the "bad attitude" appellation were the product of animus against Mason's protected concerted activity, then, under this theory Mason's protected activity may be regarded as the cause of his discharge irrespective of the graffiti alle- gations. I reject this argument. I find that the Conhain- Zimmerman deliberations were over the way to handle Mason's termination and were not deliberations over whether or not to fire him. Thus, I find Mason would have been fired irrespective of the "bad attitude label." In making this finding I place special weight on Zimmer- man's September 8 memorandum announcing that em- ployees responsible for defacing property would be dis- missed. Thus, I find that the label "bad attitude" affixed to Mason, even if it resulted because of his protected concerted activity, did not cause or in any way contrib- ute to his termination.18 Based on all the above, I find that Mason was termi- nated because Respondent had a good-faith belief that he engaged in the unprotected act of defacing the Employ- er's facility with obscene graffiti. I further find that Mason's protected concerted activity was not a factor in his discharge. Therefore, I find that Respondent did not violate the Act when it terminated Mason. Accordingly, I shall dismiss the allegations of the complaint with re- spect thereto. b. The warnings and transfer of Adrena Owens (1) The warnings In June, employee Adrena Owens was promoted to group leader, a newly created nonsupervisory lead posi- tion. She testified that she was verbally warned by Hankin on August 21 and issued a written warning by him on August 23. The written warning she received was placed in evidence. It is dated September 9. Thus it is clear the date Owens received the written warning is September 9. The error by Owens in dating the second warning places the date of the first warning in substantial doubt. Owens recalled that in the first warning conversation, Hankin warned her about excessive talking and eating at her desk. He told her that continuation of such conduct could be grounds for termination. Owens testified that her talking was not excessive and that her eating prac- tices were consistent with those of other employees and had not been previously criticized. There is employee support for these assertions. The September 9 written 18 Even were Ito accept the proposition that the graffiti events would not have caused the termination of Mason without Sherman's report to Zimmerman, a proposition I specifically reject, I would further find it was Mason's probationary employee status which would then have result- ed in the ultimate termination decision and not the "bad attitude" charac- terization. This is so because probationary status was regarded by Zim- merman, as is apparent from the substance of the Conhain -Zimmerman conversation, as allowing adverse action to be taken against such employ- ees which might not be equally proper if taken against nonprobationary employees. UNITED ARTISTS THEATRE warning given Owens stated in part that her perform- ance had been 'unsatisfactory in regards to attendance, tardiness, and excessive talking. It continued: Your excessive talking has also been discussed with you at various times by Jim Sherman, Jan Resser, Paul Ziegler and myself. In your new position, you are a role model (an example) for your group and I am sure you can understand that poor attendance, tardiness, and excessive talking creates a bad exam- ple for the group. The memo concluded that continued failure to perform satisfactorily as a group leader would result in Owens' termination. Hankin testfied that he had had occasion to talk to Owens about her performance and in particular his un- happiness with her absenteeism and tardiness. He re- called doing so on only three occasions. Two of these times, with the September 9 warning constituting the third, occurred subsequent to these events and are not under attack by the General Counsel. He did not recall the alleged August 21 warning. Hankin testified that the September 9 memo was prompted by Owens' numerous absences from work earlier in the month. Owens' attend- ance records, however, indicate she had no absences fol- lowing August 19 although she had been absent on three occasions in August. I have, with some consistency, discredited the testimo- ny of Hankin particularly when he denied remarks attrib- uted to him by employees Although I have credited Owens in part, supra, I have also discredited her about the Keeton conversation. Were the evidence described above the only evidence on this issue, I would be in- clined to find that the General Counsel had not meet _his burden of proof on the warning allegations. It is essen- tially improbable, absent an almost transparent animus, for Hankin to have warned Owens regarding eating at her desk when there was uncontradicted evidence that her conduct in this respect was unexceptionable. Further, the September 9 written warning alludes to a series of previous conversations with Owens by other supervisors regarding her excessive talking. Owens did not challenge the factual assertions in the written warning when she re- ceived it. I am persuaded that the General Counsel's case has merit., however, by considering the various other cred- ited statements attributed to Hankin, especially those tes- tified to by Suntheimer, indicating that Hankin harbored specific animus towards Owens because of her union sup- port. The critical evidence in my view carries the Gener- al Counsel's burden of showing that Hankin issued the warnings to Owens because of her union activities and I so find. Given this prima facie case, the burden of proof shifts to Respondent to show that Owens would have re- ceived the warnings even if she had not engaged in pro- tected activity. Wright Line, 251 NLRB 1083 (1980), enf. denied in relevant part 662 F.2d 899 (1st Cir. 1981). The evidence offered to justify the warnings when compared to the situation of other unwarned employees is inad- equate to meet that burden. Accordingly, I find that the oral and written warnings issued to Owens by Hankin, as 129 described above, were issued because of Hankin's hostili- ty to Owens' union activities in violation of Section 8(a)(3) and (1) of the Act. (2) Owens' transfer In late October, a special research project was under- taken to identify and pay certain long outstandng bills which were not being timely processed by the accounts payable department. There is no evidence that the project was established for other than !legitimate business reasons. A variety of employees were assigned to the project on an initial and temporary or ad hoc basis. After several weeks their numbers diminished as employees re- turned to their regular duties - until, ultimately, Owens was the only employee assigned to the project, The project was apparently subsequently discontinued but Owens remains doing the same type of work which is different at least to a degree from the work she did before her transfer. Indeed, Owens testified she did not realize the project had been discontinued because her work had remained essentially unchanged. The project employees were located in a conference room rather than in the accounts payable area. The terms and conditions of work were essentially identical to normal accounts payable work save for the different location and for the fact that the project work involved perusal of old records and files. This process involved use of viewing equipment which, at least in the eyes of some employees, is tedious and produces eye fatigue and headaches. While Zimmerman, who was involved in the creation of the project, testified that he did not regard the work as more onerous than other accounts payable work, Hankin testified that he did regard the project work as less desirable. Owens was initially told by Hankin that she would be assigned to the project for an indefinite period. When Owens expressed uncertainty regarding the transfer, Hankin told her the new job was not a demotion. No agent of management ever told Owens her transfer was based on reasons other than her superior job skills. From time to time Owens expressed a desire to leave the project to Hankin and Zimmerman. Each indicated she was still needed on the project and would have to remain at that task for a time. There is little objective evidence which allows a deter-' urination of whether Owens was the sole person or one of a few persons best qualified to be assigned to the job in question. The project's creation was free from imper- missible motives. There is no basis to conclude that the continued assignment of one employee to project-type work, at least through the time of the hearing, was other than proper. Given such, a paucity of evidence which would allow a decision as to whom should have been as- signed the work, the General Counsel, having the burden of proof on the allegation, can not prevail without more. Again, however, evidence of the specific animus of Hankin directed toward Owens is relevant. Hankin told Suntheimer on November 5-according to the credited testimony of Suntheimer-that he had transferred Owens to the project in the hopes that she would become sick of the work and quit. This is tantamount to an admission 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, irrespective of appearances, Hankin chose Owens for the job because of her union activities. It further shows Hankin well knew Owens would regard the posi- tion as onerous and he hoped to induce her to quit. De- spite the testimony of Zimmerman that he chose Owens for the job, I find that Hankin had a participatory role in Owens' selection and retention for the project.19 Hankin thus could consummate his illegal plan and I find he did. Accordingly, I find, based on: (1) the admission of Hankin testified to by Suntheimer (2) the animus previ- ously found against Owens, and (3) Hankin's ability to influence Owens' assignment, that the General Counsel has established his prima facie case that Owens was transferred to the research project and retained in similar work thereafter because of her union activities. Again, as previously noted, given this threshold finding, the burden shifts to Respondent to show that Owens' trans- fer would have occurred even if Owens had not engaged in union activity. Respondent has not met that burden and therefore the General Counsel prevails on the allega- tion. Wright Line, supra; Atlas Corp., 256 NLRB 91 (1981). Accordingly, I find that Owens' transfer to re- search work, which was regarded by Owens and Hankin as lesser quality work, violates Section 8(a)(3) and (1) of the Act. (3) Attempt by the General Counsel to amend complaints in posthearing brief An issue at the hearing was the unit inclusion or exclu- sion of a host of employees. Generally, the General Counsel took the position that the individuals in dispute should be excluded from the unit even though in some cases the individuals voted in the election without chal- lenge. Respondent argued, generally, that the employees should be included in the unit. The General Counsel argued on brief that Respondent "with the intention of packing the voting unit in such a way as to insure the defeat of the Union in the Board election" improperly transferred employees into the bargaining unit. The Gen- eral Counsel argued further: In these circumstances, the Administrative Law Judge is urged to find that Respondent violated Section 8(a)(1) of the Act by expanding the size of the voting unit in order to dilute the ballots of bona fide employees so that their desire for union repre- sentation would be frustrated. . . . Finally, while Respondent may argue that this allegation was not specifically alleged in the complaints it was litigated at the hearing, and Respondent had the opportunity to present evidence and cross-examine witnesses in this regard. Free Flow Packaging, 219 NLRB 925, 927-928 (1975), enf d 566 F.2d 1124 (9th Cir). 19 I credit Harkin that he had a role in the assignment of staff. Zim- merman's demeanor with respect to his testimony concerning his exclu- sive control of the project assignments was unconvincing Further, the record indicated that Zimmerman consulted with his supervisors, includ- ing Hankm, regarding employee merit I find, at least, that he did so here. Zimmerman need not have known taht Harkin sought Owens' assign- ment for improper reasons for the transfer to be improper, therefore I make no finding with respect to Zimmerman's knowledge or motive re- garding Owens I do not reach the merits of the unit packing unfair labor practice allegation because I believe the General Counsel's attempt to amend the complaints is improvi- dently late and therefore impermissible. I base this find- ing on two grounds. First, I disagree with the General Counsel's assertion that the matter was fully litigated at the hearing. Evidence relevant to unit "packing" by Re- spondent was in issue through the pleadings only as it re- lated to unit placement issues. The unit issues were liti- gated at length but I do not find either that the General Counsel's unit packing theory was addressed by Re- spondent or that Respondent was on notice that it should have litigated the issue as a potential unfair labor prac- tice. Clearly, the unit issues may be decided in Respond- ent's favor without it adducing evidence on the "pack- ing" contentions raised by the General Counsel. Indeed, Respondent adduced considerable evidence offered for the proposition that the contested employees were prop- erly in the unit. It is, of course, obvious that if the em- ployees were properly in the unit, the Employer proper- ly put them on the election eligibility list and consider them in the unit. In this context the instant case differs from Free Flow Packing, supra, where the Board and the court found that evidence which was the basis of posth- earing complaint amendments was identical to the evi- dence already litigated in the unfair labor practice case. Further, in Free Flow, the complaint amendments had been moved at the hearing and denied by the judge, who was then reversed by the Board. Accordingly, I find the issues and evidence relevant to the proposed amendments were not fully litigated in the instant case. My second ground for denying the amendment is its timing. The General Counsel suggests, in the portion of its brief quoted, supra, how Respondent may argue on this issue but, inasmuch as the General Counsel raises the amendment for the first time in its posthearing brief-a brief to which Respondent is not procedurally entitled to reply-Respondent does not argue the matter at all. As the Board said in commenting on a motion by the Gener- al Counsel to amend the complaint in Camay Drilling Co., 254 NLRB 239, 240 fn. 9 (1979): Moreover, to determine an issue of this magnitude when it was raised for the first time as a post-hear- ing theory would place an undue burden on Re- spondent and deprive it of an opportunity to present an adequate defense. For both of the above reasons, I deny the General Counsel's motion to amend the complaints and make no findings regarding the "packing" unfair labor practice al- legation .2 ° 20 Were the allegation timely before me, I would further find on this record that the General Counsel has failed to establish a prima facie case that Respondent violated the Act as the proposed complaint amendment alleges I would therefore dismiss the allegation on its merits UNITED ARTISTS THEATRE 131 C. The Remedy 1. Traditional remedies Having found Respondent has committed violations of Section 8(a)(1) and (3) of the Act, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the pur- poses of the Act. Having found that Adrena Owens was improperly issued a written warning and was improperly transferred to a more onerous position in research, 1 shall require Respondent to remove the warning and all refer- ences to it in Owens' file and transfer her to the position she would have held had she not been assigned to re- search. The quantum and variety of Respondent's im- proper conduct further warrants an order requiring it to , cease and desist in any other manner from violating the Act. I shall also recommend that Respondent post the usual remedial notices. 2. The General Counsel's bargaining order request21 The General Counsel alleges and the Union agrees that a majority of employees in the unit had selected the Union as their representative. The General Counsel fur- ther alleges and the Union agrees that the unfair labor practices committed, by the Employer require that a bar- gaining order issue against it. Such a remedy is provided where there has been a properly established majority in an appropriate unit and the unfair labor practices have "the tendency to undermine majority strength and impede the election process." NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969).22 A significant portion of record evidence and argument was directed to the ques- tion of whether the Union possessed a valid majority in the appropriate unit at relevant times. On the facts of this case, however, I view it more appropriate to first consid- er the question of whether or not, even assuming a valid majority was possessed by the Union at an appropriate time, the unfair labor practices found, supra, justify or require a bargaining order remedy. The violations of Section 8(a)(1) and (3) found, supra, are various and numerous. They involve a significant number of agents of the Employer and a significant pro- portion of Respondent's employees. The great bulk of the violations are: (1) interrogations about union senti- ments and activities or voting intentions, and (2) the so- licitation of employee surveillance and creation of the impression of surveillance of employee union activities. This conduct restrains and coerces employees even with- out the occurrence of explicit threats. Such conduct is however less likely than direct threats to undermine the Union and so impede the election process as to require a bargaining order. 21 A bargaining order as a remedy for employer unfair labor practices is a matter independent of any certification under Sec 9 of the Act which may accrue to the Union in the representation case Great Atlantic & Pacific Tea Co Inc, 230 NLRB 102 (1977), Holding Co, 231 NLRB 383 (1977) 22 Neither the General Counsel nor the Union contends that a bargain- ing order would be appropriate unless the Union has obtained a valid ma- jority Direct threats to employees have a serious effect on employees. The effect of threats, of course, varies de- pending on the consequences threatened. Threats to an employee's economic livelihood, e.g., threats to termi- nate a particular individual or general threats to close a facility, are regarded as among the most serious and fla- grant forms of interference with employee rights. Armcor Industries, 227 NLRB 1543, 1544 fn. 5 (1977). They are also difficult to remedy. NLRB v. Gissel Packing Co., supra at 611 fn. 31. In the instant case the following threats: (1) Zimmerman's memoranda to employees threatening mandatory interposition of the Union in the handling of their grievances, (2) Hankin's statements re- garding voter eligibility, (3) the threats that timeclocks would be installed and that the working atmosphere would be less relaxed if the Union got in, are of a lesser type because they do not directly threaten the employ- ees' livelihood. They are also more likely remedied by normal Board orders. More significant threats were Han- kin's statements to employees that the Union had tied his hands with respect to wage increases. Again, this threat is less than blatantly explicit and, as evidenced by the fact that wage increases and wage reviews continued after his remarks, was not subsequently carried out. Thus the effect of these threats were somewhat lessened by events and the passage of time. Hankin made more explicit statements to Suntheimer and Owens including promises of wage increases, an ad- mission of strong antiunion animus coupled with dis- charge threats. Hankin also issued improper warnings to Owens. These violations occurred in one-on-one conver- sations and were sufficiently specific and limited as not to become the subject of devastating rumors passed among employees which in and of themselves render correction and remedy by Board processes unlikely and any future election ineffective. The illegal transfer of Owens to a more onerous job in her department is also of significance. Owens' transfer, however, while viola- tive of the act for the reasons noted, supra, was neither overtly obvious as retaliation because of her union activi- ties nor was it a transfer to a job so objectively undesir- able so as to excite fears among other employees. The above recitation is not intended to diminish the misconduct of the Employer's agents. It demonstrates, however, in my view, that the unfair labor practices found herein are qualitatively less severe than those found in Board cases where a remedial bargaining order was directed. Terminations, closure threats, illegal wage increases, and widespread solicitation of grievances-all are lacking here. Further, although not uniformly rele- vant to analysis of the individual acts engaged in, the Employer showed that many of the violations occurred before its agents received instruction or guidance on labor law and Board standards for employer conduct from its counsel. Thus, there is at least some reason to believe that the conduct-particularly with respect to threats, interrogations, and surveillance-will not be re- peated. This factor, along with the relatively large size of the unit, is relevant in determining; if a remedial bar- gaining order is necessary and appropriate. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For all of the above reasons and considering the number and severity of the violations found as well as the record as a whole, I conclude that the conduct en- gaged in by the Employer herein does not rise to the level requiring a remedial bargaining order. The record reflects an insufficiency of egregious and lasting viola- tions. It further contains a preponderance of violations based on verbal misconduct involving implied threats or threats of diffuse or nonspecific consequence. The re- maining serious violations, under all the circumstances, are simply not in conjunction with the other lesser viola- tions, sufficient to warrant a bargaining order here. Ac- cordingly, I shall deny the General Counsel's requested bargaining order relief.23 IV. THE CHALLENGED BALLOTS The challenged ballots present separate questions and are best resolved seriatum. A. John Merle Kaiser Kaiser's ballot was challenged by the Union which, along with the General Counsel, contends he is not an eligible voter because he is a professional employee, a su- pervisor, and/or a managerial employee. Respondent contends Kaiser's ballot should be opened and counted and denies any basis exists for rejecting his vote. Kaiser had over 40 years tenure with the Employer. Although his exact title was disputed, his position in- volves audit responsibilities and inventory control of the- ater concessions. He also oversees a theater repair em- ployee. Although Kaiser has not received a degree in ac- counting nor is he a certified public accountant he at- tended two accounting institutions for a substantial period and he had been employed in an accounting ca- pacity for almost 50 years.24 Kaiser is the sole auditor for the San Francisco divi- sion and does not work with the Employer's other ac- countants. His office is physically near Respondent's president with whom he shares a secretary. Kaiser re- ports directly to the general manager of operations and conducts audits at his request. He also prepares reports and statistical studies at the request of the controller/- treasurer. Kaiser's audits are sometimes done at particular thea- ters and have resulted in personnel changes at the audit- ed theaters based on improprieties or negligence uncov- ered by the audit. Although Kaiser had on occasion re- ceived specific instructions regarding the items to be ex- amined in particular audits, he testified that he generally applies his own experience and knowledge of accounting procedures in carrying out his duties. He also utilizes his 25 Even if the Union had achieved a majority at a relevant time, I have found a bargaining order inappropriate It is unnecessary, therefore, to make any findings with respect to the majority question, i e, findings regarding (1) the validity of the authorization cards put into evidence, (2) the number and identity of individuals properly in the unit at relevant times, and (3) other issues strictly limited to the question of the Union's majority. Accordingly, I make no findings with respect to these matters 24 I notice judicially that half a century ago technical training and pro- fessional education was completed with the awarding of fewer formal de- grees and certifications. accountancy skills in the preparation of his reports such as concession cost comparisons or sales projections, etc. I find that Kaiser, by virtue of his specialized training and long experience as an accountant, despite the fact that he does not hold an advanced degree, regularly uti- lizes his accountancy expertise on behalf of the Employ- er. Not all accountants are either managerial or profes- sional employees. Kaiser however, unlike many account- ants working on routine matters as part of a large depart- ment with regular supervision, is clearly a special em- ployee of Respondent. He reports to the general manager of operations directly and conducts audits outside the fa- cility. He works with little supervision. The record indi- cates and I find that in the performance of his duties Kaiser exercises independent judgment with respect to the conducting of audits in order to determine if an au- dited operation is properly performing. It is clear that such work is not merely clerk's work. I find that these audits necessarily involve the use of independent judg- ment--which is further reflected in the special studies Kaiser undertakes. Such independent judgment renders Kaiser a managerial employee under Board standards. General Dynamics Corp., 213 NLRB 851, 860 (1974). Managerial employees are not properly in the unit. Ac- cordingly, I shall recommend that the challenge to his ballot be sustained.25 B. Lloyd Nohrden Morgan Morgan's ballot was challenged by the Union. The Union and the General Counsel contend than Morgan's ballot should not be counted because at the time of the election he was both a professional and a managerial em- ployee. Morgan is an employee with over 20.years' experience with the Employer. He holds an undergraduate degree and has done postgraduate work. He had been Respond- ent's office manager and manager of account controls and bank reconciliation before assuming his current posi- tion. For about 2 years he had been employed in the real estate department under the supervision of Arnold Child- house, Respondent's senior vice president. Morgan testified to his main duties as follows: Essentially to review and pay real estate and unse- cured taxes, to pay business licenses and other fees pertinent to theater operation . . .. The bills are di- rected to me, either by the source of billing or by the mailroom in the corporation. I review them. Within certain latitudes, company policy, I know they are correct from 21 and a half years, I pay them. I draw an authorization for payment form, put it through a clerk who types the check and its 25 Having determined Kaiser is a managerial employee, it is unneces- sary to determine if his relationship with respect to the theater repair em- ployee renders him a supervisor within the meaning of the Act It is also unnecessary to decide Kaiser's status as a professional employee Were it necessary to do so, I would also find Kaiser regularly exercises profes- sional judgment in the exercise of the accounting duties described above I remain impressed by the need for independent judgment in Kaiser's audit and special project functions. I would therefore also sustain the challenge to his ballot on this ground Aeronca, Inc, 221 NLRB 326 (1975). UNITED ARTISTS THEATRE 133 paid, returned to me and its sent to the billing au- thority. Morgan also inspects Respondent's various properties at the direction of Corporate Counsel Mahler and reports to Mahler on their state of repair and the condition of their surrounding neighborhoods. Morgan labels himself as just a clerk. Respondent argues his duties are routine and clerical in nature and involve the nondiscretionary application of Respondent's standard operating procedures. I disagree with Respond- ent's argument and, discrediting Morgan's attempts to di- minish the extent of his application of independent judg- ment to his work, find him to be a managerial employee. Morgan is higher paid than all other argued unit mem- bers including the accountants and is paid significantly more than almost all others. He has long held significant positions with Respondent including supervisory and managerial positions. His current work draws on his pre- vious experience and, in my judgment, involves the exer- cise of independent discretion both in his "latitude" to pay taxes and in his inspection functions. Respondent argues, "It would appear from the evidence that Mor- gan's position is very little different from that of Kai- ser's."' I agree. As with Kaiser, supra, I cannot accept the view that these individuals of long service and sub- stantial training and experience who are well paid and who perform under the direct supervision of highest management are but mere clerks. Each is a trusted em- ployee using his training and experience to make inde- pendent judgments. Their functions render them in my view managerial employees. Accordingly, Morgan, like Kaiser, is not properly included in the unit. I therefore recommend that challenge to Morgan's ballot be sus- tained. C. Elvie Jean Stokes The Union challenged the ballot of Stokes. The Union and the General Counsel contend that Stokes at the time of the election was a supervisor and, therefore, that the challenge to her ballot should be sustained. Stokes, as of the time of the hearing, had been em- ployed for approximately 5 years by the Employer. In June 1980 she was promoted to assistant to the manager of accounts payable. She testified that in her capacity as assistant to the manager she spent almost all her time training new employees because of high turnover in the department. Stokes specifically denied possessing the au- thority to hire, fire, or recommend the hire or fire of em- ployees. She denied that employees reported to her on that she did performance reviews of employees. The period of time she spent training new employees depend- ed on their skills and learning and retention rate. During training she would discuss the trainee with either Paul Ziegler or Jack Hankin and tell them of the new employ- ees' attitude, and give them her opinion of the employ- ee's work quality and speed. After an employee was trained, Stokes would continue to check on the employ- ee. She testified: "I would just go around and asked [sic] them how they were doing or just watch them occasion- ally." As assistant to the manager, Stokes was paid at a rate higher than 30 out of 31 of the unit employees in the ac- counts payable department . Further the salary of the as- sistant to the manager position was set in consultation with the manager and did not have a previously estab- lished formal or informal rate as did the clerk and group leader positions in the department . Employee Rick Turner credibly testified that at the time of his hire in September, Hankin told him that he had two supervisors, Stokes and Ziegler, and to go to either with any prob- lems. Further, he testified that Stokes was involved in his training and told him about mistakes in his work. Turner added that on occasion when he wished to leave work early and Hankin was not available he would ask Stokes for permission who told him she would report his leav- ing to Hankin. The General Counsel argues and I agree that Stokes tended to diminish her position and authority during her testimony. She initially identified her position as "train- ing person" and specifically denied holding any other job title or classification . Only on cross-examination did she accede to her title of assistant to the manager . 26 For this reason, and because I found her demeanor significantly less satisfactory than that of other employees, I place little reliance on her testimony diminishing her authority when contradicted by the testimony of others such as Turner. Respondent argues correctly that Stokes' primary training function is not, standing alone, sufficient to cloak her with supervisory status under the Act. Neither is her job title, although facially indicative of supervisory status, significant without actual evidence of actual or os- tensible supervisory authority. On this record , however, I have no difficulty finding Stokes was a statutory super- visor at relevant times. Hankin clearly held her out to employees as a supervisor to whom employees should bring problems. Stokes not only trained employees but reviewed their performance after their training . She ob- served their work, and pointed out mistakes to the em- ployees. She reported to higher supervision her views of employee attitude, progress, and general worth. Accord- ingly, based on all the above and the record as a whole, I find Stokes was a supervisor within the meaning of the Act at the time of the election. I shall therefore recom- mend the challenge to her ballot be sustained. D. Martin Swearingen The Union challenged the ballot of Swearingen be- cause it alleges he was not an employee of the Employ- er. The General Counsel joins the Union in arguing he is not in the unit and that his ballot should not be counted. Swearingen is employed by United Film Distributors, a separate corporation wholly owned by Respondent. Although there was little dispute of fact, the parties liti- gated and argued at length regarding the relationship of United Film Distributors to Respondent. Without decid- ing that issue, a separate basis exists on which to deter- mine Swearingen's voter eligibility. 26 Zimmerman had announced Stokes' promotion to assistant to the manager of accounts payable by memo dated June 19 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Swearingen testified he is a print booker who has cer- tain films he "dates" with theaters, both Respondent's and others. Respondent's film bookers hold equivalent positions and, like Swearingen, handle films, screen titles, and deal with theaters. It is clear that if United Film Dis- tributors is properly regarded as one with Respondent, Swearingen would share both a similarity of function and a community of interest with Respondent's film bookers. Respondent's film bookers are explicitly ex- cluded from the unit. They were not eligible to vote in the election. Therefore, I find that Swearingen, too, should be excluded from the unit. Accordingly, without deciding the issues regarding separate or joint employers, I recommend that the challenge to Swearingen's ballot be sustained. E. Allen Mason Allen Mason's ballot was challenged because his name did not appear on the election eligibility list. The Union and the General Counsel contend his vote should be counted because he had been terminated by the Employ- er in violation of Section 8(a)(3) and (1) of the Act. For the reasons set forth, supra, I have determined that Mason was not terminated in violation of the Act. Since he was not employed at the time of the election he was not eligible to vote. I shall, therefore, recommend the challenge to his ballot be sustained. F. Jack Michael Naify Naify's ballot was challenged by the Union. Both the Union and the General Counsel contend that his ballot should not be counted because of a lack of community of interest with other employees by virtue of his blood rela- tionship to certain of Respondent's owners and manag- ers. Jack Naify's relationships to other Naifys who have ownership interests in and actively participate in manage- ment of Respondent are described, supra. I conclude that these relationships do not per se remove Jack Naify from the unit or render his ballot uncountable. Rather, the issue determinative of the eligibility question is whether or not Jack Naify shares a community of interest with employees in the unit. Jack Naify lives a substantial distance from his father and, as an adult, lives a separate and independent life from his relatives. Although there is evidence that he "moonlights" in the evenings at certain theaters which are also owned in part by his relatives, there is no evi- dence that this independent employment has any bearing on his community of interest with unit employees. Thus, in my view, Jack Naify's working situation as an em- ployee of Respondent at its San Francisco facility is the sole factor relevant to determine the validity of his chal- lenged ballot. Jack Naify was hired as a film payable clerk about May 1979. The film payable clerks work under the su- pervision of David Van and all perform essentially the same duties. Jack Naify was hired by the head film buyer, Joseph Crotty, who is located in Los Angeles. Jack Naify called Crotty and sought employment with Respondent. Following an interview, Crotty offered Naify employment at starting salary which Naify accept- ed without further negotiation. Jack Naify testified that he received absolutely no ad- vantage from his name or his relationship to relatives who have an ownership interest in Respondent or who are in management. He described his work duties and hours as no different from other film payable clerks. He added that the work is not complex and was quickly learned. These characterizations were challenged by wit- nesses of the General Counsel. Christine Hanni testified that Jack Naify usually came to work over an hour late, would take inordinately extended lunch hours, and "leave whenever he would want to." Nick Thirkettle, a film payable clerk under Van's supervision who worked with Jack Naify, confirmed that Jack Naify came to work later and left earlier than other employees and took longer lunch periods. Thirkettle also testified that in Sep- tember he had occasion to rebuke Jack Naify concerning a work-related matter. Thereafter he observed Jack Naify enter Van's office-where he heard Naify com- plain to Van that he had been yelled at. Naify thereafter went directly to his father's office. Thirkettle added that he observed Jack Naify enter his father's office every day. Thirkettle and Hanni testified that Jack Naify's fre- quent absences and the fact that he was often behind in his work made their own work more difficult. Hanni tes- tified that she once complained to Van regarding the condition of Jack Naify's books but Van just "threw up his hand and said there was nothing he could do about it." Thirkettle testified that he complained almost weekly to Van and on the same basis had earlier complained to Jack Stevenson, Van's predecessor, regarding Jack Naify's recurrent absences from his work area and the fact that Naify was always in the purchasing section of the office. Thirkettle testified that Van told him that there was nothing he could do about the problem. Thir- kettle overheard Van complaining to Joe Crotty over the telephone about Jack Naify on a few occasions. Thirket- tle also recalled that in August, September, or October 1981 he received a company memo stating that, starting on a specific date, Jack Naify would give the department all his time. Thirkettle testified that Jack Naify for some 2 weeks after receipt of the memo-while still arriving late-remained in his own department but that his regu- lar presence soon ended and his previous pattern of ab- sence reasserted itself. Finally, Thirkettle testified that, at the time of Jack Naify's hire, he had been told by Jack Stevenson that while Stevenson did not like the idea, Joe Crotty had told him to find a position for Jack Naify. ,The testimony regarding Jack Naify was at substantial variance. In my view, the dispute turns on credibility. I found Thirkettle and Hanni to be open and direct wit- nesses. Each had a strong and convincing demeanor. In contrast Jack Naify seemed to me to be a sullen and almost belligerent witness. I credit Thirkettle and Hanni over Jack Naify where their testimony differs. Further, Jack Naify's testimony was not fully consistent with other record evidence. There is evidence that on at least one occasion high management had discussed Jack Naify's attendance problems. Yet Jack Naify claimed his UNITED ARTISTS THEATRE hours and attendance were regular. Further, Van did not testify regarding the conversations with Hanni or Thir- kettlee nor was his unavailability discussed on the record. There is other evidence that Jack Naify was not just another film payable clerk., but rather stood apart by reason of his family. Thirkettle testified without contra- diction that while the work of the film payable clerks was similar, other clerks handled 70 to 80 "screens" in their work while Jack Naify handled fewer than 50. Fur- ther, Jack Naify was hired at a starting salary substantial- ly in excess of the highest rate paid any other film pay- able clerk and has since received an increase enlarging this differential. Based on all the above, I find that Jack Naify at the time of the election did not share a community of inter- est with unit employees. His high pay, lower workload, and poor attendance separate him from the common working conditions shared by other employees which form the basis of their community of interest. Further, and of critical importance, the remarks of supervision to other employees, noted supra, serve to identify Jack Naify to employees as a person apart, not susceptible to control by lower level supervision. Jack Naify reinforced this image by his open and frequent trips to his father's office during the working day. It is apparent and I find that both other employees and, if not consciously, Jack Naify himself, realized that by virtue of his family, Jack Naify was an employee apart who was immune from review or correction by lower level supervision, and who shared no community of interest with other em- ployees. Accordingly, I find that Jack Naify was not properly included in the unit at the time of the election. I shall therefore recommend that the challenge to his ballot be sustained. G. Summary and Further Recommendation I have recommended that the challenges to the ballots of the six individuals be sustained. There being no addi- tional challenged ballots, the current tally of ballots is now final and determinative of the results of the election. Accordingly, I further recommend that those results be certified as determinative of the election and, therefore, the Union be certified as the exclusive representative of employees in the appropriate unit for purposes of collec- tive bargaining. V. THE UNION'S OBJECTIONS27 The Union filed timely objections to the conduct of the election on November 5, 1980. On February 5, 1981, it withdrew certain of those objections. The objections are numerous and somewhat vague as to the particular times and as to the particular agents of Respondent 27 Given my recommendation that the challenges be sustained and the Union certified as representative of employees, the Union's objections may be regarded as moot The Board or subsequent reviewing authority however may not adopt these recommendations and the Union's objec- tions may then become relevant Accordingly, I shall rule on their merits. 135 against whom the objectionable conduct is laid. On brief, however, the Union makes it clear that its objections "are identical to the subject matter of the unfair labor practice charges in the consolidated cases." Those allega- tions have been discussed and analyzed supra. That anal- ysis will not be repeated here. I have found that Respondent's agents violated the Section 7 rights of a significant number of employees during the period from the filing of the representation petition to the election , Such widespread conduct, a for- tiori, constitutes objectionable conduct. Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). I therefore recom- mend that the Union 's objections be sustained and, if oth- erwise deemed appropriate , that a new election be direct- ed consistent with this finding. Z8 CONCLUSIONS OF LAW' 1. Respondent is an 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 engaging in the acts and conduct found violative in Findings of Fact, section III, of this decision, Re- spondent interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act and in each and every instance, and as a single course of conduct, violated Section 8(a)(1) of the Act. 4. By issuing Adrena Owens a written warning on September 9 and transferring her to a more onerous job in research because of her union activities, Respondent discriminated against an employee because of her union activities in violation of Section 8(a)(3) of the Act. 5. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not otherwise violated the Act as alleged. 7. The unfair labor practices described above do not warrant the issuance of a bargaining order. 8. The challenges to the ballots of voters: Kaiser, Morgan, Stokes, Swearingen, Mason, and Naify should be sustained. 9. As a result of the resolution of challenges described above, the challenges are no longer determinative of the result of the election and the Board should certify the Union as the exclusive representative of employees in the appropriate unit. 10. The Union's objections to the conduct of the elec- tion have merit and should be sustained. In the event it is otherwise appropriate, a new election should be ordered. [Recommended Order omitted from publication.] 28 In light of the quantum of the Employer's objectionable acts, I fur- ther recommend any notice to voters in a second election be worded consistent with the notice to voters set forth in Lujkzn Rule Co, 147 NLRB 341 (1964), and Bush Hog, 161 NLRB 1575 (1966).