Springs Motel

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Springs, Inc., d/b/a Springs Motel and Service Em- ployees' International Union , Local 557, AFL- CIO. Case 9-CA-20549 10 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 6 July 1984 Administrative Law Judge Robert W. Leiner issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. 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 conclusions2 and to adopt the recommended Order. i 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 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 No exceptions were taken to the judge 's finding that the Respondent did not threaten to decrease the waitresses' hours of employment or to ban cigarette smoking at waitress stations in violation of the Act. The judge declined to decide whether Supervisor Fox asked employee Ferrell if she signed a union authorization card, noting that a determina- tion would require a resolution of the conflicts between their testimony and that a finding of unlawful interrogation would be cumulative . As nei- ther the Charging Party nor the General Counsel has excepted and inas- much as we are unable to make a credibility resolution on the record before us, we do not reach the issue here. a Chairman Dotson, dissenting in part, would reverse the judge's find- ing that the Respondent violated Sec . 8(a)(l) by interrogating employees on three occasions following company-sponsored meetings with labor consultant Lyn Rogers and by creating an impression of surveillance of the employees' union activities. Regarding the interrogations, the Chair- man notes that Supervisor Nancy Fox asked employees Ferrell and Heischberg in separate incidents after the meetings, "How did it go?" Fox had not attended these meetings . On another occasion during a meet- ing that Fox did attend, Rogers asked Ferrell for comments about a newspaper article he distributed which gave details of a strike at another employer's facility and the contract negotiated by the union and the em- ployer. Ferrell made one comment but refused to finish another and left the meeting. Fox followed Ferrell out, told her to feel free to speak, and said Fox was there and "everything would be all right." In the Chair- man's view the judge improperly distinguished Rossmore House, 269 NLRB 1176 (1984), on the basis that the three incidents did not involve known union supporters and concluded that Fox's "repeated 'implicit in- vitations . . to disclose .. [union] sympathies,' anti-company feelings, and the effectiveness of the Respondent's anti-union campaign" tended to be coercive. He finds that the judge failed to consider the circumstances in which the questioning took place and that considering all the circum- stances the questions amounted to nothing more than harmless curiosity In this connection he notes that the questions were not phrased to elicit union sympathies, that the only logical and apparent object of the inquir- ies was the quality of Rogers' presentations at the meetings that Fox did not attend, and that the record establishes that the employees answered candidly. He also finds that Fox's telling Ferrell she was free to comment and assuring her that everything would be all right can hardly be charac- terized as tending to instill fear or restraint in employees . Finally, in the absence of evidence that Fox articulated the Respondent's view when she ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Springs, Inc., d/b/a Springs Motel, Lexington, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order. told Ferrell that she "did not feel" that enough employees signed union authorization cards to ensure the Union's victory, and in the absence of evidence that Fox's department-by-department estimation of union strength referred to unlawfully obtained information, Chairman Dotson finds that Fox's statements constituted a lawful expression of her personal opinion and did not create an impression of surveillance among employ- ees. Members Dennis and Babson conclude that the judge correctly found under Rossmore House, above, that Supervisor Fox's systematic interroga- tion of employees Ferrell and Heischberg following company-sponsored campaign meetings violated Sec. 8(a)(1) of the Act. They disavow, how- ever, the judge's statement that Rossmore House held that "even hostile inquiry into the union sympathies of an employee prominently identified with the union does not tend to interfere with the employee's free exer- cise of Section 7 rights .11 Further, in adopting the judge's finding of unlawful creation of the im- pression of surveillance, Members Dennis and Babson agree with the judge's application of the test set forth in South Shore Hospital, 229 NLRB 363 (1977), and find that employees would reasonably assume from Fox's specific estimation of card signings in several departments that their union activities had been placed under surveillance. Damon W. Harrison Jr., Esq., for the General Counsel. Charles H. Zimmerman Jr., Esq., and Michael A. Luvisl; Esq. (Greenebaum, Young, Treitz & Maggiolo), of Lou- isville, Kentucky, for the Respondent. Irwin H. Cutler Jr., Esq. (Segal, Isenberg, Sales & Stewart), of Louisville, Kentucky, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. This matter was tried before me on May 2 and 3, 1984, in Lexington, Kentucky, on the General Counsel's com- plaint' alleging, in substance, that Respondent, by its su- pervisor, Nancy Fox, in violation of Section 8(a)(1) of the National Labor Relations Act (the Act) unlawfully interrogated employees regarding their union activities, and threatened them with discharge and loss of benefits concerning their union activities and created an unlawful impression among its employees that their union activi- ties were under Respondent's surveillance. Respondent's timely filed answer admits certain of the allegations of the complaint, denies others, and denies the commission of any unfair labor practices. At the hearing, all parties were represented by counsel and were given full opportunity to call and examine wit- nesses, to submit oral and written evidence, and to argue orally on the record. After the close of the hearing, counsel for all parties engaged in oral argument on the i The charge, filed by Services Employees' International Union, Local 557, AFL-CIO (the Union) on January 12, 1984, was served on Respond- ent Springs, Inc, d/b/a Springs Motel on the same date. The complaint issued on February 29, 1984. 280 NLRB No. 33 SPRINGS MOTEL record at my request and also submitted posthearing briefs which have been carefully considered. On the entire record , including the briefs, and from my observations of the demeanor of the witnesses as they testified, I make the following FINDINGS OF FACT 1. RESPONDENT AS EMPLOYER The complaint alleges, Respondent admits, and I find that at all material times, Springs, Inc., d/b/a Springs Motel has been and is a Kentucky corporation with an office and place of business in Lexington, Kentucky, where it is engaged in the operation of a hotel and res- taurant. I further find that during the 12 -month period preceding the issuance of complaint, a representative period of Respondent's business, Respondent derived gross revenues in excess of $500,000, and during the same period purchased and received at its Kentucky fa- cility products, goods, and materials valued in excess of $5000 directly from points outside the State of Kentucky. Respondent admits and I find that at all material times it has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE UNION AS A LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that at all material times, Service Employees' Interna- tional Union, Local 557 AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background As above noted, Respondent operates a motel and res- taurant in Lexington, Kentucky, employing a total of about 180 employees including custodial, maintenance, desk, housekeeping, and dining room employees. In the dining room, Respondent employed a total of about 28 busboys, waitresses, and hostesses (supervisors), exclud- ing cooks and kitchen help. The focus of the alleged unfair labor practices relates to the dining room where Respondent used approximately five waitresses each evening with seven to eight on the weekends. These waitresses also from to time serve at lunch on particular days of the week. Discussions of union activity among employees of Re- spondent have been occurring since about July 1983. Re- spondent knew of such discussions (Tr. 11, 250). In the period September through November 1983, when the alleged unfair labor practices were to have oc- curred, Respondent maintained four hostesses to cover its weekly operations: hostesses Joan Price , Patsy Delp, Marie O'Rourke, and Hilda Mucio and Dining Room Mananger Nancy Fox. Fox worked a 6-day week cover- ing most lunches and six evenings . Respondent admits that its hostesses and its dining room manager are super- visors within the meaning of Section 2(11) of the Act and Respondent's agents within the meaning of Section 2(13) of the Act. 285 The waitresses who testified in this proceeding all worked a 5 to 10 p.m. shift, 5 nights per week, with one to two lunches per week . Although it seemed to me that Respondent's witnesses generally sought to deny that waitress Betty Lilley was the most prominent union sym- pathizer among its waitresses in the above period, I con- clude from the testimony of Respondent's supervisor, Marie O'Rourke, and from Respondent's concession in its brief (Br. 16), that Respondent knew that Betty Lilley was the prominent union sympathizer and that she was identified as the most dedicated union adherent among its waitresses. On this matter and others, in my evaluation of the credibility of the witnesses in this proceeding, I have credited much if not all the testimony of Supervisor Marie O'Rourke on my observation of her as a careful, reluctant, and accurate witness . I have also credited the testimony of Mary Heischberg Daugherty (identified in places in the transcript as "Mary H."). Mary Heischberg, no longer employed by Respondent, like Marie O'Rourke, was a reluctant witness, with no apparent stake in the outcome, who impressed me as being accu- rate and careful and who desired nothing more than to escape the rigors of testifying in this proceeding both in direct and cross-examination. To the extent, however, that Mary Heischberg's testimony corroborates the Gen- eral Counsel's chief witness Alyce Ferrell, I also credit Ferrell. Ferrell and Heischberg were the General Coun- sel's sole witnesses . To the extent that Heischberg is con- tradicted by the testimony of Respondent's witnesses, es- pecially Nancy Fox, I credit Heischberg principally for the above reasons. Respondent's employees, in general, and the waitress- es, in particular, talked among themselves regarding the wisdom of supporting the Union in July 1983 with the chief proponent of the Union being waitress Betty Lilley. Sometime about September 1983, Respondent held three meetings on a day wherein it presented its labor consultant, Lyn Rogers, to various employees to express Respondent's position that the employees did not need this particular Union, that the Union would not help them, and that the particular background of the Union made it a poor choice for the employees. The employees were obliged to attend and were paid for all time spent in the meeting. Alyce Ferrell attended one of the meetings and testi- fied that there were no supervisors present among the 25 to 30 employees who were there. After the meeting, Nancy Fox spoke to her and asked her: "How'd it go?" Ferrell answered that she did not understand the meet- ing; that she had never been handed a union card prior to that day; that Consultant Rogers was a joke , ignorant, and out of control at the meeting; and that she was handed a union card in the parking lot in front of TV cameras that day. Mary Daugherty Heischberg, who, after initial coop- eration during the investigation with the General Coun- sel, thereafter refused to cooperate with the General Counsel or the Union in preparing for the hearing, testi- fied that she too attended one of the meetings addressed by Labor Consultant Rogers along with 25 other em- ployees and that, as in the case of Ferrell, Nancy Fox 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked her, after the meeting, "[h]ow it went?" Heisch- berg told her it was a waste of money, that the meeting riled people up. Nancy Fox told her that Rogers had been hired to inform the employees of the lack of wisdom of supporting that particular union. A few weeks later, in late September or early October, Ferrell attended another such meeting at which Rogers spoke. Fox was present. Rogers asked Ferrell to read some newspaper articles and asked her if she understood. Ferrell then said, referring to the article, that the con- tract mentioned therein should not have been ratified and the employees would not have gone on strike. Ferrell then said she wanted to make a further comment and then said she was not going to make it. When Rogers told her that she should feel free to say anything she would like to, Ferrell refused and left the meeting. Fox also left and invited Ferrell to say what she wanted to say (Tr. 28). After first refusing, Ferrell said she knew about strikes and had "survived" a 110-day strike in which her husband, a "union man," participated. B. Discussions and Conclusions: Interrogation The complaint alleges that during September 1983 Re- spondent, by Nancy Fox, coercively interrogated its em- ployees regarding their union membership, activities, and sympathies in violation of Section 8(a)(1) of the Act. Re- spondent does not deny the occurrence of the above meetings of the Fox-Ferrell, Fox-Heischberg conversa- tions, as above described. The credible evidence shows only that in September 1983 Respondent obliged its employees to attend meet- ings dedicated to convincing them to not support the Union and thereafter asked two employees, in substance, "How did it go?" or "How it went?" Neither employee, on this record, was prominently identified with the Union; neither employee was overtly intimidated by the questions. Supervisor Fox's inquiries to both Ferrell and Heisch- berg, of course, constitute interrogation. The statutory question, however, is whether her questions to them after the meetings represent "coercive interrogation," which is banned by Section 8(a)(1) of the Act. As noted in NLRB v Laredo Coca Cola Bottling Co., 613 F.2d 1338 (1980), cert. denied 105 LRRM 2658 (1980), although in- terrogation into union activities is not per se illegal, "any interrogation [concerning union activities] presents an ever present danger of coercing employees in violaton of their Section 7 rights." Whether a particular instance of interrogation reasonably tends to coerce employees is de- termined in light of the totality of the circumstances in which the interrogation occurs. In the recent case in Rossmore House, 269 NLRB 1176 (1984), overruling PPG Industries, 251 NLRB 1146 (1980), the Board held that even hostile inquiry into the union sypathies of an employee prominently identified with the union does not tend to interfere with the em- ployees' free exercise of Section 7 rights and is therefore not "coercive" within the meaning of Section 8(axl). The Board, in returning to a prior view of coercive in- terrogation under the Act, states the present rule to be: "whether under all of the circumstances, the interroga- tion reasonably tends to restrain , coerce, or interfere with rights guaranteed by the Act." In this regard, the Board citing Mid-West Stock Exchange v NLRB, 635 F.2d 1255, 1267 (7th Cir. 1980), announces that hereafter it will not find casual interrogation of an employee to be "coercive" because such a rule is a "per se" rule which disregards both the circumstances surrounding an alleged interrogation and ignores the "reality of the work place." The Board overruled PPG, supra, and similar cases: "to the extent they find that an employer's questioning open and active union supporters about their union sentiments in the absence of threats or promises, necessarily inter- feres with, restrains, or coerces employees in violation of Section 8(aXl) of the Act."2 In the instant case, the employees were obliged to attend what amounts to Respondent-sponsored antiunion meetings, however lawful under Section 8(c) of the Act, after which two employees were asked what their senti- ments were. As in NLRB v. Laredo Coca Cola Bottling Co., supra, 103 LRRM at 2906, Fox's questions to Ferrell and Heischberg, of "[h]ow did it go" were repreated "implicit invitations ... to disclose ... [union] sympa- thies," anticompany feelings, and the effectiveness of the Respondent's antiunion campaign among employees. Thus, these were not the casual questions put to employ- ees as a matter of shop talk concerning the give and take of union activity as in Graham Architectural Products Corp. v. NLRB, 697 F.2d 534, 541 (3d Cir. 1983), cited with approval in Rossmore House, supra, because in the instant case, the Fox interrogation was (1) systematic; (2) following an antiunion meeting which the employees were obliged to attend ; (3) occurred during a union or- ganizational effort; (4) and were designed to cause the employees to divulge union sympathies. Again, (5) nei- ther Ferrell nor Heischberg, on this record, was identi- fied, certainly at the time of Fox's questions, as promi- nent union sympathizers. Fox's questions to Ferrell fol- lowing the second antiunion meeting explicitly required Ferrell to divulge her sentiments regarding strikes in sup- port of collective-bargaining agreements. In short, I conclude that an employer's systematic oral inquiry of its employees emerging from employer-spon- sored antiunion meetings concerning the effectiveness of Respondent's otherwise lawful attempt to dissuade em- ployees from supporting the Union, whether or not re- garded as unlawful polling under Struksnes Construction Co., 165 NLRB 1062 (1967),' still constitutes coercive in- terrogation within the meaning of Section 8(axl) of the Act. As I perceive the Board position on this matter, it is still the Board rule, as stated in Quemetco, Inc., 223 NLRB 470 (1976), as favorably cited by the court in NLRB v. Laredo Coca Cola Bottling Co., 103 LRRM at 2906, that with regard to Fox's "friendly interrogation": An employee is entitled to keep from his employer his views so that the employee may exercise a full ' The Board, while citing with approval the standards for unlawful in- terrogation, announced in Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964), notes that the Bourne standards are not to be mechanically applied. 8 The Struksnes standards require, inter aha, explicit assurances against reprisal by the polling employer and the polling of the employees by secret ballot. Neither of these two elements were present in the instant interrogation. SPRINGS MOTEL 287 and free choice on whether to select the Union or not, uninfluenced by the employer's knowledge or suspicion about those views and the possible reac- tion toward the employee that his views may stimu- late in the employer. That the interrogation might be courteous and low keyed instead of boisterous, rude and profane does alter the case. As the Board noted in Quemetco, Inc., supra, it is "the effort to ascertain the individual employee's sympathies by the employer, which wields economic power over that individual, which necessarily interferes with or in- hibits the expression by the individual of the free choice guaranteed him by the Act." I therefore conclude that Respondent's inquiries in September 1983 and early Oc- tober to Ferrell and Heischberg, as alleged, violate Sec- tion 8(a)(1) of the Act as unlawful "coercive interroga- tion" because they "tend to coerce" within the Rossmore House rule, supra. Respondent's defense (Br. 13) is that Fox's questions were "not calculated to determine [the employee's] union membership, activities or sympathies." I conclude to the contrary. But even if that was not Fox's design, the Board rule is not based on intent in fording violations of Section 8(a)(1) in coercive interrogation. Rather, the rule is "whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act." Rossmore House, supra. Such a standard is consistent with Board interpretation of 8(a)(l) violations. El Rancho Market, 235 NLRB 468, 471 (1978), and cases cited (tendency to interfere, not employer motive, is the criterion). C. The Coffeepot Incident The testimony in this record regarding the "coffeepot incident" is noteworthy for the extensive contradiction between and among the witnesses, the contradiction within Respondent's witnesses' testimony being some- what greater than between the General Counsel's two witnesses, Ferrell and Heischberg . Because of contradic- tions among Respondent's witnesses on significant points, I tend to credit Ferrell's and Heischberg's versions (espe- cially where Heischberg corroborates Ferrell) and do not credit Respondent's witnesses regarding this incident. In late September 1983, in the evening, waitresses Mary Heischberg and Betty Lilley were working adjoin- ing stations. Alyce Ferrell was working nearby. Mary Heischberg ran out of coffee and took a coffeepot from the adjoining Lilley service station. Lilley, on the dining room floor, told Heischberg to put the coffeepot back and to get her own coffee. Nevertheless, Heischberg took the pot and poured coffee for her customers. Later that evening, Heischberg complained to Lilley on the work floor concerning why she "called her down" in front of customers. Although Supervisor Nancy Fox did not hear this conversation, she became aware of it through other means and walked back to Heischberg and Lilley inquiring whether there was something she could help them with. Lilley and Heischberg told her that there was no problem and that they could handle the sit- uation. About a half an hour later, Heischberg com- plained to Fox that she did not have to work under these circumstances and conditions with Lilley calling her down in front of customers. Fox told Heischberg that she would speak to both of them. Later in the week, in the dining room, with Ferrell present, Heischberg told Fox that if "she [Lilley] fools with me, I'll pull her wig off."4 To the extent that Supervisor Fox denies ever having heard Heischberg threaten to pull Lilley's wig off, I credit Heischberg and do not credit Fox. This credibility resolution is based on the credited testimony of Supervisor Marie O'Rourke who testified that Super- visor Fox was present when waitress Heischberg said that she would pull Lilley's wig off. When Heischberg threatened to pull Lilley's wig off, I credit Heischberg's testimony, and do not credit Fox's denial, that Fox then said that this would be a good way to get rid of Betty Lilley; that Heischberg and Lilley get into a fight on the floor whereupon Fox would fire both of them and thereafter rehire Hieschberg. Heischberg credibly testified, supporting Ferrell's testimony, that thereafter, while having coffee with Alyce Ferrell present, Nancy Fox again stated that Heischberg should "go ahead and have a fight" with Lilley so that she could fire both of them and later rehire Heischberg (Tr. 40, 119). Finally, Heischberg testified that on a third oc- casion, perhaps 2 weeks later, after her original threat to tear off Lilley's wig, Fox asked Heischberg whether she was "going to get her" (Lilley). Fox denies asking any such statement but rather testified that she said that when Heischberg threatened to get Lilley, all that Fox said was that if she did, Fox would fire both of them. I do not credit Fox's version. Another Respondent witness, Mary Kay Smithers, tes- tified that not only did she hear Heischberg threaten to "whip that bitch," but testified that it was Mary Kay Smithers who told Nancy Fox, in front of Ferrell and Heischberg, that because Smithers was not going to remain in employment for much longer,5 she would be willing to fight Lilley on the floor so that Fox could fire the both of them. Smithers testified that Fox said that if Smithers fought Lilley on the floor, she would fire Smithers and Smithers answered that nothing would pre- vent Fox from rehiring Smithers. Although Smithers' testimony suggests that Fox did not answer her, Supervi- sor Mucio testified that Fox said that she would not hire Smithers back. In particular, however, Smithers, contra- dicting Fox on whether these statements were made in a joking manner, testified that, in making this remark to Supervisor Nancy Fox, Smithers said it in a serious vem: that she would "whip" Lilley. I find it significant that Nancy Fox and other Respondent's witnesses, contradict- ing Smithers, testified that all the conversations regard- ing either pulling the wig off Lilley or "whipping her" (or, as Smithers put it, "slap the shit" out of Lilley) were uttered in a joking manner. I conclude that, in fact, Heischberg not only threatened to tear the wig off Lilley if Lilley continued to "fool with her," but also threat- 4 Notwithstanding that Heischberg denied it, I credit Respondent's witnes$es, particularly Fox, who say they also heard Heischberg threaten to "whip that bitch." s Smithers, however, remained in employment through the time of the instant hearing. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ened to "whip the bitch." I further conclude that as Heischberg and Ferrell credibly testified, Fox on more than one occasion seriously urged Heischberg to get into a fight on the floor with Lilley so that she could fire them both and thereafter rehire Heischberg. I conclude that Fox was serious and repeatedly urged Heischberg to engage in that misconduct . The purpose of this staged misconduct was to get rid of Lilley. Supervisor Hilda Mucio, employed as a supervisor for 20 years, testified that on numerous occasions during Betty Lilley's 5 years as a waitress, she recommended to Supervisor Fox that Respondent fire Lilley. On each such occasion, Fox refused, saying that she would work things out with Lilley. Lilley was never discharged. Lilley was the most prominent union proponent in Sep- tember-October 1983. Respondent knew of Lilley's sym- pathies at this time. On the above record, I conclude that the inference which should be drawn concerning why Fox urged Heischberg to fight Lilley on the floor, then firing both of them and subsequently rehiring Heischberg, was to rid Respondent of Betty Lilley, the most prominent employ- ee union supporter. I reach this conclusion on the facts that (1) I credit, in substance, Heischberg's version, espe- cially as it corroborates Ferrell's version; (2) I was par- ticularly impressed by the Smithers contradiction of Fox and Mucio in that Smithers testified that she seriously urged a serious fight between herself and Lilley where as Mucio and Fox contradicted Smithers, in substance, and said that all urgings of such a fight were in a joking manner; and (3) 1 was also impressed by Fox's testimony that in the event of a floor fight involving Heischberg or Smithers and Lilley she would fire both participants. This was the Fox response as testified to by Smithers, Heischberg, and Ferrell (although, according to Heisch- berg and Ferrell, Heischberg would be rehired). Howev- er, such a Fox response raises the ominous question of why Fox would be constrained to fire both the aggressor (Heischberg or Smithers) as well as Lilley in the event of a floor fight. Certainly Lilley was known to Fox to be innocent of any physical aggressiveness towards any of her would-be attackers. Thus there is no reason for Su- pervisor Fox to state that she would fire both partici- pants in a fight in which Lilley was innocent, was known to Fox to be innocent, and when the other participant was the premeditated, physical aggressor. I conclude that Fox's repeated urging of Heischberg to get into a fight on the floor with Lilley so that she could fire both of them and thereafter rehire Heischberg , made in Septem- ber 1983 as alleged, was a threat to fire Lilley because of her union activities, a threat in violation of Section 8(a)(1) of the Act. D. The Busboy Tip Incident The regular practice in Respondent's dining room was for waitresses to voluntarily give money to the busboys. The waitresses would deposit money in an envelope, sometimes with the donor's name on the envelope, in common with other waitress donors. On one occasion, Fox told Alyce Ferrell that the tip that she had enclosed in the envelope was not enough and that a further dollar was needed. Ferrell gave the extra dollar. About a week later, in late September or early October, Ferrell was about to deposit tip money in an envelope marked with the name of another waitress when she discovered that the envelope was empty. She remarked to waitress Lilley, who was then leaving, that she "couldn't believe it"; that she had been "called down" for not leaving enough tips and that she had discovered that another waitress' envelope for busboy tips was actually empty. Lilley then left. Supervisor Fox came over and told Fer- rell that she would be willing to talk about it. After they discussed Ferrell's complaint concerning the failure of the other waitress to leave a tip for the busboy, the con- versation led to Supervisor Fox asking Ferrell what she thought of a 3-day suspension of Betty Lilley, which had occurred around this time. Ferrell credibly testified that she told Fox that Respondent had made a mistake, that anyone could "set up" an employee6 and that Respond- ent had suspended Lilley without a signed customer complaint. Fox admitted it. When Ferrell repeated that Respondent had erred in its treatment of Lilley and that Respondent had no complaint against Lilley for miscon- duct, Ferrell credibly testified that Fox then said that if Ferrell "fooled with Betty Lilley, [Ferrell] would be out the front door with her." I also credit Ferrell's further testimony that Fox admonished Ferrell not to be a fol- lower of Lilley, but rather to be a "leader" and not to let her fellow waitresses guide her thinking. Although I do not credit Ferrell's further testimony, adduced as another description of this conversation with Fox, in which Fox said that if she continued to "fool with Lilley" she would be out the front door "because Betty [Lilley] is a union supporter," I do not conclude that it is sufficient to generally discredit Ferrell. I regard this subsequent "sweetened" addition as an attempt to advise me what Fox's conversation actually meant rather than what Fox actually said. I do not credit Fox's blanket denial of this conversation regarding Ferrell being "out the door" if she continued to "fool with" waitress Betty Lilley. The circumstances and timing convince me that Ferrell's tes- timony on this point rings true. In view of the above findings of unlawful interroga- tion by Supervisor Fox, I need not reach or decide the credibility issue relating to apparent unlawful interroga- tion posed by Ferrell's further testimony, and Fox's denial, that, at this juncture, Fox asked Ferrell if she had signed a union card, that Ferrell denied signing the card because she did not know enough about the Union, and that Ferrell said Respondent's employees did not need a union at this time because the problem was a manage- ment problem that management should solve. The remedy would be the same in the presence or absence of a finding on this alleged interrogation. I do not credit Ferrell's uncorroborated further testi- mony that Fox then added that if a union came in, there would be no smoking at the work stations and that Re- spondent would hire more waitresses and cut the wait- resses' working hours . Rather, I credit Fox's testimony 6 Ldley had been laid off after a customer complaint concerning her performance without the customer having made the complaint in writing, a practice apparently sometimes required by Respondent to effectively deal with the allegedly erring employee SPRINGS MOTEL that a similar conversation occurred when Fox, under emergency conditions, was cleaning off a table; that it was Ferrell who told her that if a union came in Fox would no longer be permitted to wait on the tables; and that Fox answered that if a union came in maybe Re- spondent would hire more waitresses in order to ade- quately staff the dining room. I further credit Fox who testified that she said nothing about cutting the hours of the waitresses. In addition, I credit Fox's testimony that no waitress had ever told her that they did not like Fox's waiting on tables or clearing tables especially under emergency conditions. On crediting Fox on this portion of the conversation, I regard it as "out of character" for Fox to have made blunt antiunion remarks. That I never- theless concluded that, in the same conversation, she un- lawfully threatened to discharge Ferrell flowed from my observation that Fox's animus was directed at Lilley for unlawful reasons and that her threat to Ferrell was merely cautionary. Thus, I conclude that as alleged in the complaint, Fox, in late September or early October 1983, threatened to discharge Ferrell if she continued to associate with known union supporter, Betty Lilley, and that such a threat violates Section 8(a)(1) of the Act. On the other hand, contrary to the allegation of the complaint, I find insufficient credible evidence to support the allegation that Respondent threatened employees with the loss of benefits if the Union became their collective-bargaining representative. I recommend that the Board dismiss this latter allegation. E. The Alleged Unlawful Impression of Surveillance Supervisor Fox and Alyce Ferrell are in apparent agreement that on Alyce Ferrell's breaktime about Octo- ber 1983, in the dining room, she and Alyce Ferrell had a conversation, without other witnesses, at the round table near the lobby door. There is no dispute that Fox said that she did not think there were enough cards signed for the Union to come in; that the bar employees did not want the Union; that housekeeping employees did not want the Union; that the dining room employees were "so-so" about the Union; and that the kitchen em- ployees were an unknown matter regarding their union preference. In substance, Ferrell testified that the conversation started with Nancy Fox saying that she did not feel there were enough union cards signed for "Springs to go union." Fox, on the contrary, testified that it was Alyce Ferrell who asked Fox if she thought that the Union would come in whereupon Fox gave her estimates of union strength in the various departments among Re- spondent's employees, i.e., bar, dishwashers, dining room, ending with her conclusion that there were prob- ably not enough cards signed for the Union to be suc- cessful. Fox failed to deny Ferrell's testimony that Fox mentioned a particular employee-"Alma"-and Fox's being unable to be "real sure" about Alma [and her union sympathies]. Ferrell testified that she told Fox [about Alma]: "You may be surprised." (Tr. 64; 226, et seq.) Because I credit the testimony of Alyce Ferrell in this particular exchange and reject Fox's version that it was 289 Alyce Ferrell who started the conversation, it is unnec- essary to decide the further question (raised by the Gen- eral Counsel) of whether there would be an unlawful im- pression of surveillance even if Alyce Ferrell asked Fox if Fox thought that the Union would come in. The Gen- eral Counsel's theory is that there would have been the creation of an impression of unlawful surveillance by Fox enumerating her particularized estimate of union sentiments in the various departments notwithstanding that Ferrell initiated the conversation. The employee thus would have only raised the general question of union success and received from Fox an itemized esti- mate of union strength on a department-by-department basis. In any event, as I have noted, I credit Ferrell over Fox. The basis for this credibility preference is that there are uncontroverted in this record conversations between Ferrell and Fox in which Fox, according to Ferrell's credited testimony, consistently urged Ferrell, in particu- lar, to "feel free to say anything" concerning her reac- tion to a later antiunion meeting run by Lyn Rogers at which both Fox and Ferrell were present. This meeting, as above noted, took place about 2 weeks after the first meeting. When Fox urged Ferrell to talk freely to her concerning Ferrell's reaction to the meeting and certain events at the meeting, Ferrell at first refused. I believe that in judging the relative restraint in discussing union matters, I would find that Fox, in trying to determine the employees' union sentiments, including Ferrell's particu- lar position, might well take, and did take, the initiative. I also find that Ferrell, without Fox's prodding, was not anxious to discuss her union sentiments with Fox. Thus, I consider it unlikely that Ferrell would initiate a conver- sation with Fox and ask her if Fox thought that the Union would be successful. I therefore conclude that Fox, by declaring, in a con- versation with Ferrell, in October 1983, that there were not enough union cards signed for Respondent to be sub- ject to union representation and then enumerating her es- timate of card signings in the various departments (bar, housekeeping, dishwashers, dining room, etc.) demon- strated to Ferrell that Respondent was keeping tabs on union sentiment among its employees in the various de- partments thus creating an unlawful impression of sur- veillance and that employees could reasonably assume that their union activities had been under surveillance. South Shore Hospital, 229 NLRB 363 (1977). There is also the uncontradicted Ferrell testimony that after Fox said that Respondent's day shift was not for the Union, but she was not sure of the night shift, Fox also said she was not sure of the union sentiments of "Alma" (a day waitress) to which Ferrell answered, "You may be sur- prised." Although this piece of testimony has elements of ambiguity, I believe that it has a certain declarative sound to Ferrell's response which, as I observed the wit- nesses, leads me to conclude that the conversation was initiated by Nancy Fox, rather than by Ferrell.' The fact that the source of some of Fox's knowledge was her super- visors and labor consultant Lyn Rogers supports this conclusion (Tr. 228). To the extent Respondent argues (Br. 11) that a discriminatory motive is necessary for an 8(axl) violation based on unlawful impression Continued 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The November 1983 Threat Regarding Betty Lilley REMEDY Lastly, the complaint alleges that in November 1983 Respondent threatened to discharge an employee because of her union activities or her participation in an NLRB proceeding. The record shows that an NLRB hearing was to be held in November 1983 at which Betty Lilley was to tes- tify. Respondent's employees were told that they would be notified of the result of the NLRB hearing. At a conversation at which Mary Heischberg, Alyce Ferrell, and Nancy Fox were present, Fox stated that Lilley was going to testify at the hearing and that there might be changes after the trial and it was likely that Lilley would be gone after the trial. Ferrell notes that in this expression of opinion, Fox added: "I'm sick and tired of Betty's shit." Heischberg recalls that Fox said that after the trial there "may be big changes around here ... Betty's days are numbered." There is also Heisch- berg's credited testimony that Fox immediately added to the above statement that if Ferrell and Heischberg re- peated what Fox had just said, she would say that Fer- rell and Heischberg were liars. I credit Heischberg and Ferrell 's statements and regard Fox's statement that "Betty's days are numbered" and, according to Ferrell, that it was "likely that Lilley would be gone after the trial," as constituting threats of discharge. I also conclude that in view of Lilley's status as the prime union proponent among the waitresses, the threat was made because of Lilley's status and because of her testimony at the hearing. Such a threat violates Sec- tion 8(a)(1) of the Act. I make this redundant finding of an unlawful threat of discharge because I believe it nec- essary to establish Respondent's animus focusing on Lilley and Lilley's union status. CONCLUSIONS OF LAW 1. The Respondent, Springs, Inc., d/b/a Springs Motel is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Service Employees' International Union, Local 557 AFL-CIO, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. In the months of September, October, and Novem- ber 1983, Respondent coercively interrogated employees concerning their union activities and sympathies ; threat- ened employees with discharge and other reprisals if they engaged in activities on behalf of or supported the Union; and gave the impression of unlawful surveillance of its employees' union and protected activities, all in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. of surveillance, this is neither the Board nor court rule. Anserphone Inc. v. NLRB, 632 F 2d 4 (6th Cir. 1980), is not to the contrary. Although it is true that the court did not enforce the Board's impression of surveil- lance finding, the issue of discriminatory motive mentioned in the same paragraph related only to another question or the case, an unlawful dis- charge. In any event, with all deference to the court , I am bound by the Board's view of the violation of Sec . 8(a)(l) by impression of unlawful surveillance in Anserphone, Inc, 236 NLRB 931 (1978), not the court's. Iowa BeefPackers, 144 NLRB 615 (1963) I shall recommend to the Board that Respondent cease and desist from the above unlawful activities and any like or related activities. I shall also recommend that Re- spondent post the usual notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondent, Springs, Inc., d/b/a Springs Motel, Lexington, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discharge or other re- prisals because of their sympathy in, support of, or mem- bership in Service Employees' International Union, Local 557, AFL-CIO, or any other labor organization. (b) Coercively interrogating employees concerning their activities on behalf of the Union or any other labor organization or protected concerted activities. (c) Creating the impression that the employees ' activi- ties on behalf of the Union are under Respondent's sur- veillance. (d) In any like or related manner, interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing or engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its place of business in Lexington, Ken- tucky, copies of the attached notice marked "Appen- dix.", Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representative, 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 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. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ° 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. ° 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." SPRINGS MOTEL 291 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with discharge or any other reprisals because they are members of, sym- pathize with, or engage in activities on behalf of Service Employees' International Union, Local 557, AFL-CIO, or any other labor organization. WE WILL NOT coercively interrogate our employees concerning their activities on behalf of the Union, pro- tected concerted activities, or other activities on behalf of any other labor organization. WE WILL NOT create the impression that the activities of our employees on behalf of the Union or any other labor organization are under our surveillance. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities. SPRINGS, INC., D/B/A SPRINGS MOTEL