Royal Laundry

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Royal Sonesta, Inc. d/b/a Royal Laundry and United Labor Unions, Local 100. Cases 15- CA-9189 and 15-RC-7013 26 November 1985 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 31 May 1984 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief, and counsel for the General Counsel and the Peti- tioner filed opposing briefs. 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, and conclusions and to adopt the recommended Order as modified.' The Respondent is a laundry which services five hotels in New Orleans, Louisiana. It employs ap- proximately 54 employees at the laundry facility and 5 valets who work exclusively at the hotels. The Respondent's employees began organizing in late April 19832 and the Petitioner filed an election petition on 19 August. The election was conducted on 27 October and the tally of ballots reveals that 17 were cast for and 25 against the Petitioner. There were 13 challenged ballots, a determinative number. The Petitioner filed timely objections to the conduct of the election and on 28 November it filed coextensive unfair labor practice charges against the Respondent. On 7 December the Re- gional Director for Region 15 issued a consolidated complaint and notice of hearing to resolve the ob- jections and corresponding unfair labor practice charges and the challenged ballots. Thereafter on 10 February 1984, the Regional Director amended the complaint to include two additional unfair labor practice allegations. With respect to the original allegations of the complaint the judge found that the Respondent violated Section 8(a)(1) of the Act and unlawfully interfered with the conduct of the election by solic- iting employee grievances at meetings held in ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces as 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 z Unless otherwise indicated all dates refer to 1983 August, September, and October; thereafter imple- menting improvements and repairs at the facility as a means of redressing employees' grievances; threatening employees with losses of benefits; and coercively interrogating an employee. We agree.3 Regarding the allegations made by way of the amendments to the complaint the judge found that the Respondent did not unlawfully solicit griev- ances at employee meetings held in May, but that it did unlawfully grant employees a 5-percent wage increase on 6 June contrary to its regular practice in order to discourage the employees' organizing activity. At the hearing and in its exceptions the Respondent maintains that the complaint was amended improperly and that the allegations con- tained in the amendments should not have been liti- gated. In view of our finding that the Respondent un- lawfully solicited complaints and grievances, prom- ised to rectify them and thereafter implemented such improvements, we find that our ruling on the allegations encompassed by the disputed amended complaint allegations regarding the June pay in- crease as a further example of such misconduct would not materially affect our Order. We there- fore find it unnecessary to resolve whether the June pay increase allegation is sufficiently related to conduct initially alleged in the charge as unlaw- ful because any such violation, if found, would be cumulative. Accordingly, we modify the judge's recommended Order to state generally that the Re- spondent engaged in such unlawful conduct with- out reference to specific examples.4 The Challenges The judge sustained challenges to the ballots of Francis Gardner, Bobbie J. Bridges, and Patricia A. Seals whom he found to be supervisors, and Walter Johnson who last worked in October 1982. He also sustained the challenge to the ballot of Dennis Terry on the basis that he did not perform unit work on even a regular part-time basis. The judge overruled challenges to the ballots of office employees Byrona L. DeBose and Brenda Hunter 3 In sec. III (F)(2)(a) of his decision the judge inadvertently states that William Jones did not testify about Supervisor Francis Gardner's telling Elaine Johnson that employees would lose all their benefits if the Peti- tioner were successful It is clear from the record and the judge's discus- sion that Jones testified and that Johnson and Gardner did not Relying on the standards set forth in Rossmore House, 269 NLRB 1176 (1984), and Bourne v. NLRB, 332 F 2d 47 (2d Cir 1964), Chairman Dotson would not find Gardner's interrogation of Jones to be coercive The Judge found that the Respondent did not inform an employee that it would continue to grant benefits if the Petitioner lost the election, as alleged in par 10 of the complaint In the absence of exceptions, we affirm this finding 4 In view of our decision, we find it unnecessary to pass on the judge's discussion of Bannon Mills, 146 NLRB 611 (1964), and Asbestos Workers Local 53 (Insul-Contractors), 262 NLRB 934 (1982) 277 NLRB No. 85 ROYAL LAUNDRY whom he found to be plant clericals and of mainte- nance engineer James Ramsey whom he found not to be a supervisor. We affirm the judge's disposi- tion of the challenges to these ballots.5 Additionally the judge sustained challenges to the ballots of valets Gloria Q. Buccola, Jacob Fruichtnicht, John Gonzales, David W. Manguno, and John Tripi on the basis that they did not share a community of interest with other employees in the unit. The Respondent maintains that the valets are unit employees. It points out that the Petitioner entered into a stipulation regarding the appropriate- ness of the unit and that the unit description in- cludes the designation "valets." The Respondent argues that the inclusion of the valets' job title in the stipulated unit description precludes the Peti- tioner from challenging the valets' ballots. We find merit in the Respondent's argument. The Petitioner asserts in its brief that it entered into the stipulation in the belief that the designation referred to employees who work in the valet (dry- cleaning) area of the Respondent's laundry facility and that it was not aware of the existence of em- ployees called "valets" who are assigned to the hotels serviced by the Respondent. However, it is well settled that when the claimed subjective intent of a party is at odds with the language of the unit description to which the party has stipulated, the Board will first examine the express language in order to determine whether a clear and unambig- uous objective intent may be construed from the face of the description.6 It is only when an objec- tive intent cannot be discerned that the Board finds a party's subjective intent relevant and consequent- ly considers community of interest factors in re- solving whether to include the affected employees in the unit. Where, as here, there exists a job, de- scription or title that is the same as the express lan- guage used in the unit description, the Board will find a clear objective intent to include the affected employees in the unit and the parties will be bound by their stipulation.7 Inasmuch as the stipulated 5 In adopting the judge's recommendation that the challenge to the ballot of Dennis Terry be sustained we do so on the basis that the chal- lengmg party, the Union, presented sufficient evidence to support the judge's conclusion that Terry did not perform unit work on even a regu- lar part-time basis This evidence consisted of testimony of one employee that she did not see Terry prior to the day of the election and that of another employee who stated that on one occasion he observed Terry sweeping foi 15-20 minutes We disavow any implication that the Re- spondent initially had any burden to prove Terry's status as an employee in the bargaining unit Chairman Dotson would overrule the challenge to Terry's ballot. In his view the evidence presented by the Union is insufficient to establish that Terry did not regularly perform unit work, 8 See Viacom Cablevision, 268 NLRB 633 (1984), and generally White Cloud Products, 214 NLRB 517 (1974) 7 Ibid 821 unit description includes the job title "valet" and the Respondent employs persons specifically classi- fied as valets, we reverse the judge's sustention and overrule the challenges to their ballots. Our resolution of the challenges to ballots cast in the election notwithstanding, it is apparent that a majority of votes has not been cast for the Petition- er.8 In view of the objectionable conduct found herein, therefore, we adopt the judge's order that the election be set aside and a new election con- ducted. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, The Royal Sonesta, Inc. d/b/a Royal Laundry, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete from paragraph 1(c) the language "in- cluding granting a pay increase." 2. Substitute the following for the penultimate paragraph of the Order. "IT IS FURTHER ORDERED that complaint para- graphs 9(A), 9(B), 9(C), and 10 are dismissed." 3. Substitute the attached notice for that of the administrative law judge. [Direction of Second Election omitted from pub- lication.] I In accordance with our findings, we would overrule the challenges to 8 of the 13 contested ballots These ballots, however, are not determi- native of the election results, where the initial tally indicated that 17 votes were cast for, and 25 against, the Union Because Chairman Dotson would also overrule the challenge to Terry's ballot, he would order a re- vised tally of ballots 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To choose not to engage in any of these protected concerted activities. Accordingly, we give you these assurances. WE WILL NOT coercively interrogate you con- cerning your voting intentions in any election to be conducted by the National Labor Relations Board. WE WILL NOT threaten you with loss of benefits if you elect United Labor Unions, Local 100, or any other labor organization, as your collective- bargaining representative. WE WILL NOT solicit your complaints and griev- ances, promise to rectify them, and thereafter im- plement improvements in terms and conditions of employment to rectify such complaints and griev- ances, where the purpose of such conduct is to dis- suade you from supporting Local 100, or any other labor organization. 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. THE ROYAL SONESTA, INC. D/B/A ROYAL LAUNDRY Michael N. Petkovich, Esq„ for the General Counsel. Robert B. Mitchell, Esq., and with him on brief, E. Fre- drick Presis, Jr., Esq. (McGlinchey, Stafford, Mintz, Cel- lini & Lang), of New Orleans, Louisiana, for the Re- spondent. Andrew M. Weltchek, Esq. (Bachmann & Weltchek), of New Orleans, Louisiana, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. These consolidated cases were tried before me in New Orleans, Louisiana, on February 21-23, 1984, pursuant to (1) the December 1, 1983 order directing a hearing on objections and challenged ballots issued by the Regional Director for Region 15 of the National Labor Relations Board, (2) the December 7, 1983 complaint issued by the Regional Director on behalf of the General Counsel of the Board, and (3) the Regional Director's December 7, 1983 order consolidating cases and notice of hearing. The complaint is based on a charge filed November 28, 1983, by United Labor Unions, Local 100 (the Union or Local 100) against The Royal Sonesta, Inc., d/b/a Royal Laundry (Respondent or Royal Laundry).' In the complaint, as amended, the General Counsel al- leges that Respondent violated Section 8(a)(1) of the Act between May 29 and October 27 by interrogating em- ployees about their union sentiments,2 threatening them i All dates are 1983 unless otherwise indicated 3 Complaint par 7, containing one of the two interrogation allegations, was withdrawn at the close of the General Counsel's case-in-chief (3 383) with loss of benefits if they voted for the Union in the Board-conducted election of October 27, 1983, and by soliciting employee grievances, promising to rectify them, and thereafter implementing improvements in con- ditions of employment to resolve the grievances, includ- ing granting a 5-percent wage increase on June 1. By its answer Respondent admits certain factual mat- ters but denies violating the Act. The petition in Case 15-RC-7013 was filed August 19, 1983. The date opens the preelection "critical" period. Ideal Electric Co., 134 NLRB 1275 (1961).3 The repre- sentation hearing was held on September 12-13 (2:356). Pursuant to a Decision and Direction of Election issued September 28 by the Regional Director for Region 15 of the Board (R. Exh. 3), an election was conducted Octo- ber 27 among the employees in the following unit: All full-time and regular part-time production and maintenance employees including checkers. cleaners and spotters, flat-workers, valets, press operators, wash people, engineer, soiled linen workers, seam- stresses, janitor, utility workers and truck drivers, excluding all other employees, guards and supervi- sors as defined in the Act. The tally of ballots disclosed that of approximately 59 eligible voters, 55 cast valid ballots. Of these 55 ballots, 17 were cast for the Union, 25 against, and 13 ballots were challenged. The challenged ballots are sufficient in number to affect the results of the election. The challenged ballots require a determination wheth- er: (1) two office employees are office clericals (as Local 100 contends) or plant clericals (as Royal Laundry argues); (2) four employees are statutory supervisors (per Local 100) or mere leadpersons (Royal Laundry); (3) one employee (Walter Johnson), who had been off work be- cause of an injury sustained off the job, has an expecta- tion of return; (4) five employees are employed in the valet department (as Royal Laundry contends), or do not perform unit work (Local 100); and whether (5) one em- ployee (Dennis Terry) does not perform unit work or is otherwise excluded from the unit because he receives special treatment as the son of Personnel Manager Patri- cia Terry (with Local 100 arguing for exclusion and Royal Laundry contending for inclusion). On November 1 Local 100 filed timely objections. In his December 1 supplemental decision and order direct- ing hearing on objections and challeged ballots, the Re- gional Director overruled all objections except Objec- tions 3, 4, 5, and 6. On the latter he ordered a hearing. He also directed that the challenges be resolved at the hearing Objections 3 to 6 are coextensive with some of the allegations of the complaint. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of To the extent that references are made herein to the transcript of the tes- timony, they are shown by volume and page 3 Ideal Electric actually set the opening date for contested cases (ie, those involving decision and directions of elections), In Goodyear Tire & Rubber Co., 138 NLRB 453 (1962), the Board applied the same opening date to cases involving stipulated consent elections ROYAL LAUNDRY the briefs filed by the General Counsel, Local 100, and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Massachusetts corporation with a facili- ly in New Orleans, Louisiana, provides retail and whole- sale laundry services at its New Orleans laundry. During the past 12 months, Respondent purchased and received goods and materials valued in excess of $50,000, which goods, supplies, and materials were shipped directly to it from points located outside the State of Louisiana. Re- spondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Respondent denies that Local 100 is a labor organiza- tion within the meaning of Section 2 (5) of the Act. The record reflects that Local 100 is an organization in which employees participate, and that it exists for the purpose, at least in part, of dealing with employers concerning grievances , wages, or conditions of work. Such facts, I find, constitute Local 100 a labor organization within the meaning of Section 2(5) of the Act. Moreover , the Board found Local 100 to be a statutory labor organization in Hyatt Regency New Orleans, 260 NLRB 534, 536 (1982), affd. 709 F.2d 715 (11th Cir. 1983). III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Sonesta International Hotels operates a chain of hotels which includes the Royal Sonesta Hotel in New Orleans (3:386). Royal Sonesta Hotel and Royal Laundry are di- visions of Royal Sonesta, Inc Royal Laundry provides the laundry service for Royal Sonesta Hotel. Royal Son- esta, Inc., it appears, is owned by the parent firm, Son- esta International Hotels. William D. McCall holds the position of corporate engineer with Sonesta International Hotels. McCall also serves as plant manager for Royal Sonesta Hotel, and he assists Royal Laundry with techni- cal advice on repairs, maintenance, and capital improve- ments (3:386, 389). From its location at 1152 Magazine Street in New Or- leans, Royal Laundry provides wholesale and retail laun- dry services for the Royal Sonesta, Royal Orleans, and Fairmont hotels in New Orleans, as well as for several local restaurants and shipping firms. The laundry services consist of a linen service and a valet shop. The linen service is a wholesale operation that processes linen for tables and beds plus other laun- dry items used by the hotel and restaurant customers in servicing their patrons. The valet shop cleans the person- al laundry and dry cleaning of the hotels' guests. The linen laundering and the valet laundering are different types of operations (3:398). The valet shop, which is in an enclosed room located near the employees' locker room, lunch room, and office area, uses its own washing machines, dryers, ironers, and other pressing equipment (3:399-400). 823 The tally of ballots for the October 27 election reflects a bargaining unit consisting of approximately 59 employ- ees. Laundry Manager Roy L. White testified that cur- rently there are about 53 laundry employees (3:377), and that they are supervised by him, as laundry manager, and by Pearl Monroe, assistant laundry manager (2:351; 3:517). B. The Supervisory Issue One of the disputed issues concerns who directs the flow of work through their respective departments in the laundry. In his September 28 decision and direction of election, the Regional Director provided that four con- tested leadpersons and a maintenance engineer, among others, could vote subject to challenge (R. Exh. 3). Based on this, the Board agent challenged the ballots of Bobbie J. Bridges, Francis Gardner, Patricia A. Seals, and James A. Ramsey as possible supervisors. The evidence before me also refers to Leroy Hunni- cutt as a supervisor of the wash and dry department If Hunnicutt cast a ballot, it apparently was not challenged. The General Counsel's brief discusses the supervisory status of Bridges, Gardner, and Seals, but not Hunni- cutt.4 There is some evidence in the record concerning Hunnicutt's status, however. The evidence before me identifies Ramsey as a maintenance engineer, although a question is raised concerning his supervisory status. It thus appears that the fourth leadperson referred to by the Regional Director was not Ramsey, but Hunnicutt. For years the leadpersons had been classified as super- visors. When Henry Williams Jr. was hired in 1982, White told him that Leroy Hunnicutt was his supervisor (1:90). When Joan Learson was hired in 1979, White told her that Francis Gardner was a supervisor (2:174), and Gardner's personnel history card reflects that classifica- tion (G.C. Exh. 7). For some reason undisclosed in the record, White had occasion to call the employees togeth- er in 1982 and tell them that Bridges, Gardner„ and Hun- nicutt were supervisors over their designated depart- ments (2:275, 297-298, 303). Seals was not named. No doubt that is because, as her personnel recoid reflects, Seals was not promoted to supervisor until March 14, 1983 (G.C. Exh. 10). On January 1, 1984, Respondent reclassified Bridges, Gardner, and Seals to leadpersons. Laundry Manager White testified that Hunnicutt also was so reclassified (3:368-369) 5 White also testified, without contradiction, that Ramsey has never been a supervisor (3:592) and is not even a leadperson (2:340-341). Ramsey's personnel record reflects that he is classified as a maintenance engi- neer (G.C Exh. 18). As the limited evidence in the record pertaining to Ramsey is insufficient to establish that he has been a statutory supervisor at any relevant time, I shall not discuss his status further 4 In its brief, the Charging Party relies on the General Counsel's brief as to most issues, and the Charging Party primarily discusses whether certain employees are eligible to vote as valets s Initially White denied that Hunnicutt had been a supervisor, denied his reclassification, and asserted that Hunnicutt had been a leadperson all along (2 355, 356) 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White testified that the supervisors were reclassified to leadpersons on January 1, 1984, because their title had created confusion by causing the supervisors to think they had the authority to hire and fire "which they never did have."6 (3:482.) According to White, he became aware of the confusion in December (3:484). That is, after the election The demeanor of White was very poor. I credit him only to the extent his testimony is corroborated by other credited evidence or is uncontradicted and such uncon- tradicted testimony appears consistent with the credited facts. In addition to his unfavorable demeanor, White testified in a confused and contradictory manner during portions of his testimony about the supervisory issue. Although testifying before me that he did not become aware of the confusion about the supervisory title until December, White admits that at the September represen- tation hearing he testified that Bridges, Gardner, and Seals were leadpersons (3 575-576). When asked why he did not call them supervisors, as they were classified, White said that he did not know, but that he called them leadpersons because he was confused (3:596-597). White then denied that he consulted with anyone about their status before he testified, and denied that he discussed the facts with anyone before his September testimony (3.596-597). A moment later White admitted that he had prepared for his testimony with Respondent's counsel (3:597). At the September hearing White, consistent with his testimony that Bridges, Gardner, and Seals were mere leadpersons, further testified that they did not have the power to suspend employees (3:601-603). But at numer- ous points in his testimony before me, White acknowl- edged that prior to their January 1984 reclassification as leadpersons, Supervisors Bridges, Gardner, and Seals (and Hunnicutt) did have the authority to suspend em- ployees and send them home, and at times exercised that authority The record amply supports White's conces- sion. Graphic examples are provided by Catherine An- derson, involving Bridges (2298), and White himself, in- volving Hunnicutt (3:365). White attributes his change of testimony to his being confused over the legal difference between a leadperson and a (statutory) supervisor. "I got it straightened out in December, and I changed it in January." (3:604) The De- cember event prompting White's December enlighten- ment is not disclosed.' Notwithstanding that he prepared with Respondent's counsel before his September testimo- ny (3:597), White asserts that at the time of his Septem- ber testimony he did not understand the legal definition of a statutory supervisor (3:595). According to White, he and Assistant Laundry Man- ager Pearl Monroe are the only (statutory) supervisors of the approximately 59 employees in the bargaining unit. These unit employees are located in a double building (two buildings joined together) with several depart- 6 Even so, I note that White also testified that prior to their 1984 re- classification, the supervisors had possessed the authority to fire employ- ees but had never exercised that authority (3 569) ° White was off work because of illness for about 6 weeks , from about 3 weeks before the election to about 3 weeks after it (3.591-592) ments.8 Although Monroe works on the floor, White spends much of his time in the office. On examination as a witness called by the General Counsel under FRE 611(c), White testified that he did not know how much time he spent in various departments or how much time he spends supervising employees in different departments (2:357; 3:372, 373-374). White admits that he does not know what work some of the employees, such as driver Brian Gibson, do on a given day or whether they might be loafing (2:352-353). He testified that he is the overall supervisor and that Monroe is the immediate supervisor of everyone in the laundry (3:376, 379), and that if either he or Monroe does not know whether employees in a certain department are overstaying their breaks, then no one (in supervision) would know (3:375). In directing the flow of work through their respective departments, Bridges, Gardner, and Seals also serve, and did during 1983, as utility workers by substituting for absent employees. Catherine Anderson, credibly testified that when a full crew is at work in flat work department, Bridges spends about 30 percent of her time doing physi- cal work in the laundry and 70 percent of her time making sure the 11 employees in her crew do their work (2:302). White testified that the leadpersons spend 95 per- cent of their time performing physical work in the laun- dry and 5 percent checking paperwork (3.485, 490, 495) This probably is substantially true when they are substi- tuting for absent employees. If White intended his testi- mony to apply to days when the crews are full, or in- tended to assert that the leadpersons, during 1983, had no freedom to exercise their supervisory authority, then I do not credit him. The leadpersons do not punch a timeclock as do the other employees who work on the laundry floor, and their pay is substantially higher than the other laundry workers. For example, the June 1983 pay raise granted to the laundry workers increased Joan Learson's pay rate from $3.88 to $4 10. By contrast, during 1983 Bridges earned $5.87 per hour (G.C. Exhs 13, 17), Gardner slightly less than Bridges, and Seals earned $5 per hour (G.C. Exhs. 10, 12). Although years of service may ac- count for some difference in pay, I find that the,wide dif- ferential is a reflection of the authority, duties, and posi- tion vested in Supervisors Bridges, Gardner, Hunnicutt, and Seals. Because the evidence reflects that the former supervi- sors held one or more of the powers enumerated in Sec- tion 2(11) of the Act,9 and because these powers are read in the disjunctive, I find that during calendar year 1983, Bobbie J. Bridges, Francis Gardner,10 Patricia A. Seals, and Leroy Hunnicutt were statutory supervisors. On January 1, 1984, Royal Laundry withdrew certain su- pervisory authority possessed and occasionally exercised by the four, and reclassified them as leadpersons. The 8 As we shall see, a few employees normally work as valets in Re- spondent's hotels and their ballots are among the challenges to be re- solved 9 The record clearly establishes this respecting the power to suspend employees. 10 An occasional document spells Gardner's given name as Frances (2 326) However, Respondent uses the spelling shown above which is the spelling reflected on most of the exhibits pertaining to Gardner ROYAL LAUNDRY record is insufficient to determine whether the leadper- sons, on and after January 1, 1984, are statutory supervi- sors based on other factors, such as responsibly directing employees in their work, and exercising independent judgment in so directing . Thus, I find that, as statutory supervisors in 1983, they were not eligible to vote in the October election. For the reason stated, I am unable to determine whether they currently (beginning January 1, 1984) are supervisors within the meaning of Section 2(11) of the Act. C. Organizing Begins--Respondent Learns Roy L. White is manager of Respondent's laundry (3:474), and he held that position at all times relevant herein. This is not to overlook that he was off work be- cause of illness for about 6 weeks, beginning about 3 -weeks before the election to about 3 weeks after the election. During his absence Corporate Engineer William D. McCall made the engineering decisions White nor- mally would make as laundry manager. McCall is admit- ted by the pleadings to be a statutory supervisor, and the parties stipulated that White is such (2:202). It appears that Local 100 began organizing Respond- ent's employees in late April 1983. Joan Learson, who works in the valet department, signed a union authoriza- tion card on April 27 while attending a meeting at the Union's hall with nine other employees from the laundry (2:158, 199, 214). At some point between the following day and the end of the third week of May, Laundry Manager White called Learson into his office and asked her if she had anything to tell him. She replied that she did not. White then informed her that someone had re- ported to him of observing Learson talking with the "union man" (2:162). Learson admitted that was so, but explained that the union representative was looking for another employee. Learson told White that one of her companions must have informed White, but White denied it (2:163). The complaint does not contain an alle- gation covering White's interrogation. White did not address the matter of his conversation with Learson when he testified. He made an indirect denial by testifying that he had no knowledge of the union organizing until he began hearing rumors of it about July 1 (3:595). In his connection, Personnel Dire- tor Patricia Terry, on vacation the last week in July and the first week of August, testified that she did not learn of the organizing until the second week in August (3:606). On this point , and most others, Learson testified in a straightforward manner and with a persuasive demeanor. I credit her. By contrast, White and Terry did not testify with a satisfactory demeanor and I do not credit them. In so finding, I do not overlook Learson's statement in her pretrial affidavit that she was not questioned about the Union by any "supervisor" (2:200). Learson credibly testified that she considered White to be the manager and not a supervisor because Pearl Monroe is the super- visor who tells Learson what to do (2:203-204). As described earlier, the time frame of White's interro- gation of Learson extends across a 3-week period. This results from the fact that the record is rather confused regarding the time frame. This in turn seems to be the 825 result of the disorganized evidence regarding what sup- posedly prompted White to question Learson in the first place. Although the evidence does not establish what caused White to call Learson into his office for the inter- rogation, Learson believes that it came about because of two events. One event involves the occasion of Learson speaking to "Mike," a union representative , in the pres- ence of two or three other employees, when Mike was looking for another employee. The other incident con- cerns whether James Ramsey, an employee in the engi- neering department, observed Learson speak with "Mike" on a street corner. Learson believes that Ramsey reported his observation to White. There is no need for me to attempt to unravel the con- fusion regarding the two incidents which Learson be- lieves gave rise to White's questioning. White does not directly dispute Learson's account, and Learson testified with a believable demeanor, and with satisfactory clarity, regarding her conversation with White. Concerning the date of White's interrogation, Learson testified that it occurred about 3-1/2 weeks after she signed the authorization card (2:161). On the other hand, it appears that in her pretrial affidavit she described the interrogation as occurring the morning after she signed her card and has spoken to "Mike" (2:220-221), and Learson, at one point in her testimony, essentially con- firmed that description (2:226). It is unnecessary that a precise date be fixed. At one point in the cross-examination of Learson, Re- spondent, on the basis of testing her credibility, asked Learson for the names of the nine other employees present at the union meeting of April 27. I sustained the General Counsel's objection (2:214). I should note that the transcript reflects that, in so ruling, I told Respond- ent's counsel, "You may subpena those cards." My per- sonal recollection is that I told counsel, "You may sub- pena her card." Thus, Learson's credibility as to the date of signing would be established by inspecting the card she signed. i i To the extent that Respondent sought the names merely to test Learson's power of recall, and to call the employees as witnesses to verify their presence on April 27, all as a check on the quality of Learson's memory, as explained by counsel, that basis of Respondent was insuf- ficient and the General Counsel's objection was appro- priate. The relevant point is the date Learson signed the card. The number and identity of employees present are matters of collateral interest only. Forcing Learson to identify the other employees present would have had no material probative value in assessing Learson's credibil- ity, but could very well have had a highly unfavorable impact on the employees when they learned that their protected conduct, undertaken in confidence, had been exposed unnecessarily in a Board proceeding. " A question over the date an authorization is signed is easily avoided by the General Counsel's attorney offering the card in evidence after au- thentication The dated card is very useful in establishing a time frame 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Respondent's Response of May-June 1. Respondent holds group meetings in May Before May, Learson credibly testified, Respondent had never called employees to group meetings at which employees could register complaints (2:170). Wash de- partment employee William Jones gave confirming testi- mony (2:252). About mid-May12 Respondent called a series of meet- ings with small groups of employees at which Personnel Director Terry, in the presence of Laundry Manager White, told employees that although work was slow and inflation high, Respondent was "drumming up" business and there should be no need for layoffs (2:164, 231-232, Learson), even though the economy was bad the Laun- dry was losing business (2:247-248, 277, William Jones). There is a sharp conflict in the evidence concerning whether Terry, at the end of the mid-May meetings, asked employees whether they had any complaints. t 3 Terry denied doing so (3:606), but William Jones is posi- tive that she did (2:248, 277). For some reason, White did not address the point in his testimony. Unlike Jones, Learson testified on both direct and cross-examination that Terry, following her presentation, merely asked whether employees had any questions (2:170, 231). Cath- erine Anderson confirmed the version of Learson and Terry (2:287). However, it was not established that Learson and An- derson attended the same meeting as Jones. As Jones works in a different department from either Learson or Anderson, it is likely the five to six employees at his meeting included only his own wash department. The demeanor of Jones was convincing on this point, and I credit him. Moreover, it is quite possible that Terry, after hearing employees at the other sessions complain about various working conditions, naturally asked Jones' group (assuming that his group was not at the initial ses- sion) whether they had any complaints. It is undisputed that some employees, at the end of the mid-May meetings, expressed their displeasure about sev- eral aspects of their working conditions. The complaints included low pay,14 the need for more heat in the winter, the lack of cold drinking water because of a broken ice machine, and the need for uniforms (2:165, 249, 287). Although it seems more logical that expressions of complaints by employees would be more likely to have come after an invitation to voice any complaints, rather than as a response to whether they had any questions about Terry's economic report, the preponderance of the evidence favors a finding, which I make, that Terry did not solicit employee complaints at most of the meetings. 12 William Jones recalled it as early May (2 247), Learson about mid- May (2 164, 231), and Catherine Anderson remembered it as being about the third week in May (2 286) 13 Complaint par 9, as amended, alleges that Respondent did so solicit on numerous occasions between 5 -29-83 and 10-27-83 14 Learson , employed for over 5 years, was paid $3 88 an hour in May (G C Exh 3) 2. Pay increase effective June 6, 1983 It also is undisputed that about a week after the mid- May meetings, Respondent again called the employees together At this second meeting Terry announced that Respondent would grant employees a 5-percent pay in- crease effective the first part of June. The pay increase slip given to Learson shows the actual effective date to be June 6, 1983 (G.C. Exh 3) Complaint paragraphs 9A through 9C, by amendments dated February 10, 1984, allege that the pay increase was contrary to Respond- ent's past practice as to timing and was granted for the unlawful purpose of discouraging the union activities of the employees of Royal Laundry. Respondent contends that the amendment is time-barred under Section 10(b) of the Act because it is not sufficiently related to the scope of the original charge and complaints so as to relate back to and be encompassed by those documents. I find this contention to be without merit. The original charge and complaint allege violations of Section 8(a)(1) of the Act arising from Respondent's response to the Union's orga- nizing campaign . The amendments were timely The record establishes that Respondent's past practice was to grant a pay increase on January 1 of each year. For the first time, 1983, it granted two pay increases in 1 year-early January and early June. As noted, the Gen- eral Counsel alleges and argues that the pay increase, granted contrary to past practice as to time, was made for an unlawful purpose. Of course, this position depends on a showing that Royal Laundry knew of the union or- ganizing prior to granting the wage increase. Concerning the knowledge requirement, the General Counsel principally relies on Laundry Manager White's interrogation of Learson in late April to mid-May or so. Is knowledge also shown directly? Based on my finding that Personnel Director Terry's solicitation of complaints at one session in mid-May was the result of hearing other employees voice complaints at other sessions, and there- fore not as a calculated action in response to knowledge of a nascent union organizing campaign, it is clear that the matter of soliciting complaints in mid-May is not available to support a finding of knowledge in May. However, does Respondent's departure from past prac- tice (two raises in 1 year) support an inference of (1) knowledge and (2) unlawful motive? This issue brings us to the subject of Bannon Mills, 146 NLRB 611 (1964). The rule of Bannon Mills is that a respondent who fails to honor a subpoena duces tecum will be precluded from offering either primary or secondary evidence concern- ing the matters subpoenaed. The Court of Appeals for the Fifth Circuit has approved the application of Bannon Mills, NLRB v. American Art Industries, 415 F.2d 1223 (5th Cir. 1969), as has the First Circuit, Hedison Mfg. Co. v. NLRB, 643 F.2d 32 (1st Cir. 1981), although the Ninth Circuit takes the position that the General Counsel must seek court enforcement of the subpoena, NLRB v. Inter- national Medication Systems, 640 F.2d 1110 (9th Cir. 1981). In the instant proceeding the General Counsel served subpoena duces tecum B-330286, dated February 13, 1984 (herein SDT 286), on Royal Laundry seeking all payroll and other records, notices, and minutes of meet- ROYAL LAUNDRY 827 ings of the board of directors, showing all general pay increases since 1981 to February 1984 (R. Exh. 7). Re- spondent filed a petition to revoke, and the General Counsel submitted an opposition (R. Exh. 7). At the hearing I denied the petition to revoke (1:31). Respond- ent then moved that I prohibit the General Counsel's at- torney from showing any of the subpoenaed payroll doc- uments to the Charging Party's attorney, although Re- spondent did not object to the General Counsel furnish- ing copies to the attorney of any copies made by the General Counsel (1.32, 35, 43, 45). The General Counsel objected to any restriction. I denied the motion and ruled that I would not restrict the General Counsel's at- torney from seeking assistance from anyone, whether from a CPA, actuary, or counsel for the Charging Party, during his inspection of the subpoenaed records (1:36, 44-45, 58). Although the General Counsel, at several points, moved for production of the documents called for by the subpoena, eventually invoking Bannon Mills (1:49, 55, 63), Respondent announced that it would not honor the subpoena on the limited ground that I declined Respond- ent's motion for an order prohibiting the General Coun- sel's attorney from showing any subpoenaed document to the Union's lawyer as part of the General Counsel's de- termination whether any such item was relevant and should be copied (1:49-50, 57). It is clear that Respondent's position is without merit. Respondent expressly would permit the General Counsel to photocopy every subpoenaed item, and then furnish copies of those copies to the Union's lawyer But Re- spondent objects to the General Counsel obtaining assist- - ance from the Union's lawyer in determining in the first instance whether a payroll record, memo, or other docu- ment would be relevant. Some arguments are said to be a distinction without a difference. Respondent's position involves neither a distinction nor a difference. I reaffirm my ruling The General Counsel adduced evidence through his witnesses concerning Respondent's past practice on pay raises. As noted, the General Counsel's evidence also es- tablishes that Respondent granted a general 5-percent pay raise to employees effective June 6, 1983. When Re- spondent, during its case-in-chief, sought to ask Laundry Manager White about pay raises, the General Counsel immediately objected, invoking Bannon Mills (3:553). When counsel for Respondent candidly asserted that his question would go to the pay raise allegations of the complaint. I sustained the objection of the General Counsel (3:555, 565) Respondent requested leave to make an offer of proof, but the General Counsel object- ed on the basis that even an offer of proof would be in- consistent with Bannon Mills. I overruled that objection and permitted Respondent to make an offer of proof which, following its proffer, I rejected (3:565, 566).15 Based on the foregoing, the only reference in the record which gives an inkling of Respondent's position regarding the basis it departed from past practice is the explanation contained in the rejected offer of proof. Re- 35 An offer of proof is appropriate in connection with a Bannon Mills objection Hedison Mfg Co, 249 NLRB 791, 795 fn 19 (1980) spondent contends, brief at 39, that I erred in rejecting its offer of proof The offer of proof is to the effect that Royal Laundry departed from its past practice of giving annual wage increases by giving two raises in 1983, one in January and the other in June, because price increases had been implemented by Respondent at those times, and Respondent's past practice has been to give wage in- creases when price increases were imposed I reaffirm my ruling rejecting the offer .of proof based on the General Counsel's Bannon Mills objection It is no answer to say that the General Counsel could have cross-examined White on this topic had White been per- mitted to testify. It is improper for a respondent, through the device of dishonoring a subpoena duces tecum, to manipulate the General Counsel's trial strategy and order of proof. P.S.C. Resources, 231 NLRB 233, 235 (1977), enfd. 576 F.2d 380, 388 (1st Cir 1978); Midland National Life Insurance Co., 244 NLRB 3, 6 (1979), enfd. without discussion of this point 621 F.2d 901 (8th Cir. 1980). At this point no one can say how the General Counsel may have proceeded, or whether he would have called additional witnesses, had he been furnished the docu- ments under subpoena. For all we know, a memorandum was among the records subpoenaed which would have disclosed that Respondent decided to raise pay rates in June in order to sidetrack the Union's organizing efforts. The General Counsel requests that I draw an adverse inference from Respondent's failure to produce the sub- poenaed pay increase records (1.55; Br. at 5). I grant his request and infer that had Respondent produced its records pertaining to the pay increases, such records would have revealed that in May 1983 Respondent was aware of the Union's organizing drive and granted the pay increase in June to demonstrate to employees that they could obtain better pay and, by implication, better benefits, without the need of a union. i s Moreover, the positive evidence in the record supports the foregoing inferences. Recall the employee testimony disclosing that at the mid-May meeting Personnel Man- ager Terry gave a rather gloomy economic report even though employees were told that layoffs were not antici- pated. A week later the pay raise was announced. This scenario is consistent with a finding, which I make, that Respondent, aware of the union organizing activity, sought to chill the drive,by presenting an unfavorable economic picture, with layoffs just barely averted (so employees should be content just being employed), then a week later it acted to instill gratitude and appreciation by announcing a pay increase-all with the goal of per- suading employees to drop their interest in union orga- nizing E. Group Meetings During the Critical Period 1 Facts Complaint paragraph 9, as amended, alleges that on numerous occasions between May 29 and October 27, 16 This adverse inference rests on Respondent's failure to produce records containing relevant evidence, and not simply on Respondent's failure to honor SDT 286 Asbestos Workers Local 53 (Insul-Contractors), 262 NLRB 934 fn 1 (1982) 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1983, Respondent, through Personnel Manager Terry and Corporate Engineer William McCall, "(a) solicited employee complaints and grievances and promised to re- solve and/or rectify said complaints and grievances and (b) thereafter implemented improvements in terms and conditions of employment to resolve and rectify said complaints and grievances." The General Counsel's position is a bit uncertain con- cerning whether he seeks to incorporate the mid-May meetings under this allegation. However, the evidence appears to divide the events rather distinctly. The mid- May meetings involved Terry and White. Not only did the subsequent small group meetings, as alleged, involve Terry and McCall, but they occurred in the period of September-October. William Jones, one of the General Counsel's witnesses, testified that the next meeting at- tended after May took place in September (2:252). McCall testified that to his recollection most of the meet- ings he attended were held in September-October (3:422, 450). Terry testified that she did not recall the exact dates, and placed them "right before the election period" (3:608, 609) 18 Catherine Anderson fixes the time of her second meet- ing as being in late June and another in August in Laun-' dry Manager White's office where Terry and White ad- dressed the employees (2:291). Although she testified that Respondent did not solicit complaints at the June and August meetings "after" the organizing drive began (2:314), she stated in her November 8 pretrial affidavit (2:315): I did not hear anyone from the company soliciting employee complaints after the union drive started. Before the union drive, we did tell the company that we had complaints. After the petition was filed, the company put in water coolers, put in ventilation and hot water in the bathroom. They provided uni- forms. They fixed the heaters and the air condition- ing . And put new chairs in the lounge. Anderson described the asserted discrepancy between her trial testimony of solicitation after the union drive started, and the affidavit version of no solicitation after the union drive started, as a "misprint" in the affidavit misquoting her statement (2:3.16-317). Anderson's testi- mony on this point is confusing and unreliable. Accord- ingly, I shall base no findings on this portion of her testi- mony. Personnel Manager Terry concedes that the purpose of the (September-October) small group meetings was to convey Royal Laundry's position to the employees on the union question, and that position was that manage- ment and the employees did not need a union (3:611- 612). McCall confirms that such was the purpose (3:452- 453). William Jones credibly testified that at the small group (six or seven employees) meeting he attended in Septem- ber, Terry and McCall asked if employees had any com- plaints, and stated that they wanted to make needed re- pairs in the laundry (2:253). Most of the complaints ex- pressed there by the employees, Jones explained, per- tained to the heating system (apparently too cold in the winter), the need for cool air in the summer, a water cooler, locks on the ladies restrooms, and uniforms (2:253). As the cross-examination reflects, Jones indicates that many of these same matters came up at the May meetings he attended. As earlier noted, I place no reliance on Anderson's de- scription of the meetings occurring after May. Learson was asked about the mid-May meeting but not about any meetings occurring after May. McCall testified that at the end of some of the Septem- ber meetings he asked whether anyone had anything to add to the comments made by him and Terry. On these occasions employees requested a water cooler (3:421) and an improved ventilation system (4:424). He denied asking, or hearing Terry ask, whether employees had any complaints or grievances (3:425-426). In her own testimony, Terry gave only a general de- scription of the purpose of the (September-October) meetings. She did not describe the specific topics treated or what was said, other than saying that at the close of the meetings employees were asked whether they had questions on the position Royal Laundry had expressed. Terry claims that the employees at that point "unloaded" with complaints about various working conditions (3:614). She denies that employees were invited to ex- press grievances or complaints at those meetings or at any time (3:607). I do not credit either McCall or Terry. On this point they testified in generalities and with an unpersuasive demeanor. I credit Jones, who testified with a convincing demeanor, and find that at the September meetings Terry and McCall, after presenting Respond- ent's position that the employees did not need a union, did in fact invite employees to express any grievances or complaints and that the employees did so. There is no dispute that Royal Laundry did make re- pairs and improvements, and purchased new items, con- cerning the matters complained of by the employees. Re- spondent, however, argues that such expenditures were part of a long-established pattern of repairs and improve- ments. In this connection, Respondent submitted a list with 70 numbered line items of expenditures made for major repairs and improvements in the laundry during the 5-year period of 1979 through 1983 (R. Exh. 13), and a thick stack of documents consisting of invoices or other papers for nearly every line item (R Exhs 11 and 12).19 Nearly all these items consist of capital improvements or repairs to the laundry or equipment. It is true that em- ployees frequently benefit incidentally when improved or modernized equipment is installed in that their work may be made easier .20 The repair of a tumbler leaking water 19 McCall testified that items costing less than $100 were not included 18 I do not credit Terry's testimony that she did not learn of the union on the list (3 .471, 473). organizing until the second week of August (3 606) Terry frequently 20 Counsel for the General Counsel objected to the relevance of the seemed to measure her answer in terms of their impact on Respondent 's data on the repairs and improvements, arguing "that's like saying they position She did not testify in a straight forward fashion Her demeanor installed a new washing machine so the employees didn 't have to use a was unfavorable scrubbing board any more" (3 405) ROYAL LAUNDRY on the floor incidentally gives employees a cleaner and more pleasant working environment . And many of the repairs and improvements apparently came after employ- ees had complained about malfunctioning equipment, such as a burned out motor, or excessive heat or cold, a need for fans, chillers, or heaters . But it is clear that Re- spondent's overriding purpose in making these repairs and improvements was to maintain or increase produc- tivity so that Royal Laundry could remain in business A very few items, it is true, relate only indirectly to pro- ductivity. For example, in 1981 a refrigerator ( line item 38) was purchased for the office at a cost of $143 (3:544). White testified that the use of the refrigerator is not re- stricted to the clerks working in the office but is avail- able to all (3:545).21 That testimony had a very hollow ring. I note that he does not claim that workers on the laundry floor were ever notified of this benefit, nor did he testify that any laundry worker, aside from the clerks, ever in fact use the refrigerator. Line item 54 also is only indirectly related to produc- tivity This item consists of the payment of $233.33 in June 1982 for the labor cost of carpeting the laundry of- fices. The purchase price of the carpeting is not shown. Occasionally the laundry workers make the ascension to the office for insurance claims or other matters, and it no doubt is an aesthetic benefit, even if of short duration, for them to be able to walk on a carpet when they trans- act business in the office . I must hasten to add, however, that there is no direct evidence that the laundry `floor is not carpeted. Thus, it is theoretically possible that Royal Laundry, by carpeting the office, was merely upgrading the standard of the office ambiance to that already en- joyed by the workers on the laundry floor. But that pos- sibility does not withstand scrutiny when it is recalled that the laundry tumblers sometimes leak water, and of course spills of water or other liquids could occur. Thus, it is very unlikely that the laundry floor is carpeted. All the other items, even water coolers, are directly related to productivity. Tap water, of course, would sus- tain an employee. But cool water in the summer is a matter which, management may decide, can lead to a more comfortable employee and, therefore, a more pro- ductive one. For that matter, it can be debated whether pay increases would be directly or indirectly related to productivity The key to resolving this issue lies in the fact that before May it was not easy for employees to get Laun- dry Manager White to make repairs of such things as water fountains or ice machines. Learson, for example, credibly testified that White frequently would laugh off complaints about such matters, and when something was done it was not corrected promptly (2:171). Moreover, as the employees credibly testified, prior to the union or- ganizing Respondent never held meetings at which em- ployees could register complaints . During September, however, Respondent affirmatively solicited employees to express their complaints and grievances-in meetings at which Respondent expressed its opposition to the Union. 829 As the record reflects, Respondent acted on its em- ployees' complaints and made repairs and improvements during the September-October period. Water coolers, line item 64, for the drinking fountains were ordered on October 4 "ASAP" at a cost of over $700 to replace the defective ones (2:172, 254; 3.455). Employees had com- plained of a lack of hot water in the restroom lavatories (2:171). A hot water tank was repaired to correct this problem during the period dust before the election (2:172; 3:469). New uniforms also were provided for employees during this period, the heating system was repaired, a restroom was painted and tiled and a ventilating fan in- stalled in the restroom window, more lights were in- stalled, and the heating system was repaired (2:173, 254). 2 Conclusion I find that in September-October Respondent, as al- leged in complaint paragraph 9, solicited employee com- plaints and resolved a substantial number of such com- plaints by repairing or improving equipment at the laun- dry during the weeks before the election of October 27. I further find that Respondent solicited the complaints, and corrected a substantial number of the matters com- plained of, for the purpose of dissuading, employees from supporting Local 100. By such action, Respondent vio- lated Section 8(a)(1) of the Act. F. Other Alleged Coercive Statements 1. Corporate Engineer McCall Complaint paragraph 10 alleges that about October 20 Corporate Engineer McCall infomed employees that im- provements in terms and conditions of employment would continue if the Union lost the upcoming Board- conducted election. Catherine Anderson testified in sup- port of this allegation. Anderson testified, without contradiction, that around 11 a.m., about October 1, Corporate Engineer McCall was conversing with employees Anderson and Helen McKenzie where the two employees were working McKenzie asked whether Royal Laundry would contin- ue with the improvements if the Union lost McCall re- plied "Yes." (2:296). McKenzie did not testify, and McCall was not asked about this when he testified I find no violation in McCall's statement Clearly Re- spondent has an established history of repairs and im- provements. To approach a violation it would be neces- sary to modify McKenzie's question to be, "Will Royal Laundry, contrary to past practice before September 1983, and if the Union loses the election, continue its recent practice of moving with alacrity in making repairs and improvements of items mostly only indirectly related to productivity?" McKenzie did not ask that, and the evidence on this point is too brief to supply the balance by reference based on the context of contemporaneous events. Accordingly, I shall dismiss this allegation ?' As already discussed, the office is situated upstairs above the laun- dry floor 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Supervisor Francis Gardner a. October 20, 1983 William Jones credibly testified that in the early after- noon about a week before the election he passed through the department of Supervisor Francis Gardner on his way to the Coca-Cola machine.22 As he passed the table where Gardner and employee Elaine Johnson were working, he overheard Gardner tell Johnson that if the "damn" Union gets in here they would lose all benefits and every "goddamned" thing (2:259, 276).23 Neither Jones nor Gardner testified. Although Gardner is a working supervisor, she regu- larly attends meetings in the office which the employees view as meetings of supervision. The timing of Gardner's remark followed the September meetings at which Per- sonnel Manager Terry expressed Respondent's opposi- tion to unionization. In such circumstances, Gardner's statement would have the tendency to create the belief that Gardner was quoting or paraphrasing statements made by management at the supervisors' meetings. It therefore would have the tendency to be coercive. Ac- cordingly, I find that by Gardner's statement Respondent violated Section 8(a)(1) of the Act. b. October 26, 1983 Jones also credibly testified that during the afternoon the day before the election, as Jones was returning through Gardner's department from the coke machine, Gardner called Jones to the side. She asked him how he was going to vote the next day.24 Jones told her he was not going to vote for the Union. Gardner responded, "All right," and that concluded the conversation (2:258). Gardner, as noted, did not testify. The Board jealously guards the secrecy of the voting booth. How an employee votes, or intends to vote, is a prohibited subject for interrogation by an employee's em- ployer-even when done, as here, by a low level super- visor. I find that by Gardner's interrogation, Respondent violated Section 8(a)(1) of the Act. IV. THE REPRESENTATION CASE A. Introduction The objections are coextensive with complaint allega- tions of interference, restraint, and coercion and are therefore covered by my earlier findings regarding those allegations.25 This leaves the challenged ballots concern- ing the supervisory status of leadpersons, certain employ- ees whose status as valets are in question, and the voting eligibility of Dennis Terry, the office clerks, and Walter 22 In addition to his washroom work under Leroy Hunnicutt, Jones occasionally drives a truck for Respondent Gardner gives Jones instruc- tions concerning his duties in driving a truck (2.256, 272). 2s Complaint par, 8(b). 24 Complaint par. 8(a) 25 Of course, only the events occurring during the critical period, from 8-19-83 to 10-27-83, apply On the other hand, prepetition conduct may be looked to for the purpose of adding meaning to events occurring during the critical period. Shamrock Coal Co, 267 NLRB 625 (1983), and cases cited there at fn 3. Johnson. The Charging Party does not address the latter two challenged categories in its brief ' B. The Leadpersons Earlier I found that during 1983 leadpersons Bridges, Gardner, Seals, and Hunnicutt were statutory supervisors and ineligible to vote in the October election. Accord- ingly, I recommend that the challenges to their ballots be sustained. 26 C. The Valets Local 100 challenged the ballots of the following on the basis that they are not employed in unit positions: Gloria Q. Buccola, Jacob Fruichtnicht, John Gonzales, David W. Manguno, and John Tripi. Royal Laundry contends that the five are valets and eligible to vote.27 These employees, although technically employees of Royal Laundry, are assigned by Respondent as valets at the hotels. They pick up guest laundry at their hotels and prepare it for transport to the laundry. After the laundry is returned to the hotels, the valets deliver it to the hotel guests. Buccola is assigned to the Royal Orleans, Fruichtnicht to the Royal Sonesta, Manguno, before his employment with Respondent ceased, was assigned to the Royal Son- esta, and Tripi, before his death, was assigned to the Royal Sonesta (1:115-116, 3:477-478, 593). The record contains no information about the assignment of Gon- zales. Of course, the deaths of Tripi and Gonzales have no bearing on whether their ballots should be opened and counted. Patricia Terry is the personnel director for the corpo- ration, Royal Sonesta, Inc. (1:110). Terry has personnel clerks stationed at the hotels who process employment papers for employees working at the hotels. This is true for the valets assigned there even though the valets are employees of the laundry. White testified that he and Pearl Monroe are the supervisors for the valets and that hotel management has no supervisory control over the valets (3:476). Although White and Monroe may be the organization- al supervisors of the valets, I do credit White in his testi- mony that hotel management exercises no supervisory control over the valets. White admits that no one from the laundry goes to the hotels to give them instructions (3:594), and that the valets have never performed any work at the laundry (3:593). His testimony that the valets come to the laundry for instructions "if they need it" (3:594) means no more, I find, than they could do that. I find that they never have. Nor do I credit White's gener- alized testimony that the valets come to the laundry "every so often" for a meeting if White intended to 2s As earlier noted, it may well be that the fourth challenged ballot in this group was that of James A Ramsey rather than that of Leroy Hun- nicutt If so, I recommend that the challenge to the ballot of Ramsey be overruled for lack of evidence that he was an ineligible voter 29 Local 100 asserts that John Gonzales has died (Br at 3), If true, that unfortunate event has no bearing on whether his ballot may need to be opened and counted William Jones testified simply that Gonzales no longer works at the laundry (2:270). ROYAL LAUNDRY convey the thought that the valets ever attend meetings of laundry employees (3.481). ]Unlike the hourly paid laundry workers, the valets do not punch a timeclock and are paid a weekly salary (3:479, White). The valets maintain lockers at their hotels and may park their automobiles at the hotel garage. An- niversary letters for service at the hotel have been sent at least to Fruichtnicht. The letters are not from White, and apparently are from hotel personnel.28 When Fruich- nicht won an "Employee of The Month" award in 1975, it was the director of the rooms division who sent him a letter of congratulations (C.P. Exh. 14). 1 find that the valets do not share a community of in- terests with the employees of Royal Laundry who work at the 1152 Magazine Street Laundry. That raises the question of why the classification of "valets" is included in the unit description The parties do not address this question . It is quite possible that references to "valets" in the representation case record (not before me) were not thoroughly explained so as to distinguish between valets assigned to the hotels and employees working in the valet department at the Magazine Street facility. Joan Learson works in the valet department, but in an open area on the laundry floor just outside the enclosed valet shop (2:158, 185-186). She testified that her super- visor is Assistant Laundry Manager Monroe (2:158),29 although she occasionally receives instructions from Francis Gardner (2:175). While named Learson and four additional employees as being, the five employed in the valet department (3:381). At another point he asserted that six employees work in the valet shop, although he possibly was including Peail Monroe in that count (3:587). ][ cannot clarify the unit description . The record does not explicitly exclude the possibility that there are em- ployees, called valets, who are working at the Magazine Street laundry facility. I simply find that the valets as- signed to the hotels do not perform unit work, and I shall recommend that the challenges be sustained to the ballots of the five valets named above. D. The Clericals If Byrona L. DeBose and Brenda Hunter are office clericals they are excluded from the unit, but if they are plant clericals they are included. Neither testified. The personnel card of DeBose discloses that she was hired for the laundry office in July 1982 (G.C. Exh 19). On July 10, 1983, her hourly pay was increased to $4 Hunter's card reflects that she was employed as a flatworker from her hire date of October 1975 to her transfer to office clerk in mid-January 1980 (G.C Exh. 22). Her subsequent annual and merit pay increases raised her to $6.30 per hour effective January 2, 1983 Both clericals perform typing chores in the office. White testified that their clerical work involves checking timecards, pricing work orders for hotel customers, bookkeeping, inventorying supplies for the laundry, an- 28 Most, but not all, of these exhibit letters are file copies with no let- terhead or other identification of the source 29 White also identified Monroe as the supervisor over the valet shop (2 349, 3 376, 381) 831 swermg the telephone, checking the guest laundry vouchers, and producing master control sheets for the hotels to charge their guests for laundry services (2:342, 348). They have access to the personnel files in the laun- dry office. Employees call DeBose for supplies (2.179) or see Hunter for credit union matters (2:180, 308). Both oc- casionally fold clothes in the valet shop White's testimo- ny on this latter point was confirmed by Joan Learson (2:179)3° and William Jones who testified that he sees Hunter working on the laundry floor at least twice a week for 2 to 3 hours at a time (2.262), and that DeBose occasionally presses shirts downstairs (2259-260). An- derson also had seen Hunter working on the laundry floor assisting Francis Gardner, Hunter's mother (2.307). The clericals generally share the same employee benefits and conditions as the other laundry workers. Particularly in view of the fact that DeBose and Hunter perform unit work on the laundry floor from oc- casional to frequent intervals, I find that they share a community of interest with the other unit employees, and I shall recommend that the challenges to their bal- lots be overruled. E. Dennis Terry Dennis Terry, about 24 to 25 years of age (2.151), is the son of Personnel Director Patricia Terry. He has been married and has not lived with his mother for sev- eral years . A college student, Dennis Terry receives no financial aid from the personnel director (2.156). Person- nel Director Terry testified that she does not know any- thing about the work her son does for the laundry (2:156). She denies knowledge that her son has received any preferential treatment because of their relationship (3:608). White testified that Dennis Terry performs custodial "maintenance" of cleaning the office and "anything that needs to be done." (3.512, 516). White testified that he and Monroe are Dennis Terry's supervisors (3.517), and that Terry punches the same timeclock as the other em- ployees (3:512, 515). White denies that Dennis Terry has received any favored treatment based on his relationship to the personnel manager (3:512) Joan Learson testified that she never saw a timecard in the rack for Dennis Terry until September 1983, and that the only time she ever saw him was the day of the Octo- ber election (2:183). She has never seen him do any work at the laundry (2:183, 191). William Jones testified that on one occasion he ob- served Dennis Terry sweeping the floor for 15 to 20 minutes (2269), and he observed him on one other occa- sion punching a timecard (2270). Respondent did not offer any time and payroll records for Dennis Terry.3 i Thus, so far as the record discloses, so Learson asserts that DeBose never works on the laundry floor (2178), and Catherine Anderson testified that she has never observed DeBose working on the plant floor (2 306) 31 I draw the inference that had such records been produced, they would have been unfavorable to Respondent's position that Dennis Terry's ballot should be opened and counted 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dennis Terry has not been shown to perform unit work on even a regular part-time basis. I therefore shall rec- ommend that the challenge to his ballot be sustained. F. Walter Johnson White testified that Walter Johnson was terminated for abandoning his job after he received an off-the-job injury on October 1, 1982 (3:507; G.C. Exh. 4).32 White testi- fied that he did not hear from Johnson between his last workday of October 1, 1982, and the day of the election, and that Johnson had not been placed on a leave of ab- sence (3:508-509). White testified that there presently is no position for Johnson even though the latter recently has informed White that he might soon be able to return to work (3:509, 510). Johnson did not testify. In the absence of any evidence contradicting that given by White, I find that Johnson was no longer an employee of Royal Laundry on the day of the election. I therefore shall recommend that the challenge to his ballot be sustained. 33 CONCLUSIONS OF LAW 1. Royal Laundry is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 100 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By soliciting employee complaints and grievances, promising to rectify them, thereafter implementing im- provements and conditions in terms and conditions of employment to rectify such complaints and grievances, including granting a 5-percent wage increase effective June 6, 1983, all in order to dissuade employees from supporting Local 100; by coercively interrogating em- ployees about their voting intentions; and by threatening employees with loss of benefits if they voted in Local 100, Royal Laundry has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate Section 8(a)(1) of the Act when Corporate Engineer William McCall told em- ployees that improvements in working conditions would continue if Local 100 were not elected by employees as their bargaining representative. 6. By engaging in the conduct described in section IV, A of this decision, Respondent has interfered with its employees' freedom of choice in the election conducted October 27, 1983. 7 The challenges to the ballots of employees should be disposed of in accordance with the findings made in section IV, B-F of this decision. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist and to take certain affirmative action designed to effectu- 32 The termination paper is dated 9-9-83-3 weeks after the petition was filed in Case 15-RC-7013 33 The Board agent challenged his ballot because Johnson's name was not on the list of eligible voters ate the policies of the Act. No provision is to be con- strued as requiring Respondent to revoke the pay in- crease which it granted employees in June 1983. Because the ballots of Byrona L DeBose and Brenda Hunter, even if favorable to Local 100, would not alter the election results, there is no point in remanding Case 15-RC-7013 to the Regional Director to open and count their ballots and to issue a revised tally of ballots. Simi- larly, there is nothing to be gained by opening and counting the ballot of James A. Ramsey, assuming that he cast a challenged ballot. Accordingly, I shall order that the election be set aside and a new election conduct- ed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed34 ORDER The Respondent, The Royal Sonesta, Inc d/b/a Royal Laundry, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees regarding their voting intentions in any election to be conducted by the National Labor Relations Board. (b) Threatening employees with loss of their benefits if they elect a labor organization to be their collective-bar- gaining representative. (c) Soliciting employee complaints and grievances, promising to rectify them, and implementing improve- ments in terms and conditions of employment, including granting a pay increase, to resolve and rectify such com- plaints and grievances, where the purpose of such con- duct is to dissuade employees from supporting United Labor Unions, Local 100, or any other labor organiza- tion. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its laundry in New Orleans, Louisiana, copies of the attached notice marked "Appendix '+35 Copies of the notice, on forms provided by the Regional Director for Region 15, after being dated and signed by the Respondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material 34 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 3s 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 " ROYAL LAUNDRY 833 (b) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that the election held Octo- days from the date of this Order what steps the Re- ber 27, 1983, in Case 15-RC-7013 is set aside and re- spondent has taken to comply. manded to the Regional Director for the purpose of con- IT IS FURTHER ORDERED that complaint paragraph 10 ducting a new election whenever the Regional Director is dismissed. deems appropriate.