Sears Roebuck De Puerto Rico, Inc.

258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sears Roebuck de Puerto Rico, Inc. and Internation- al Association of Machinists and Aerospace Workers, AFL-CIO. Case 24-RC-6677 17 June 1987 DECISION AND DIRECTION OF THIRD ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered objections to an election held 16 September 1983 and the adminis- trative law judge's attached decisions recommend- ing disposition of them.' A second election was conducted on 16 September 1983 pursuant to a Stipulated Election Agreement. The tally of ballots shows 91 for and 116 against the Petitioner, with 1 void ballot, and 8 nondeterminative challenged bal- lots. The Board has reviewed the record in light of the exceptions and briefs, has adopted the judge's fmdings2 and conclusions, as modified below, and directs that the election be set aside and a new election held. The judge found, inter alia, that Ana L. Benitez, acting as the Employer's supervisor and/or agent, engaged in objectionable conduct on 2 September 1983 by telling five employees in the switchboard department that if the Union won the election, the Employer would subcontract the Service Center work, close down, and leave Puerto Rico. 3 We agree, for the reasons set forth below, that Benitez is the Employer's agent and, therefore, her objec- tionable conduct is imputable to the Employer.4 The credited evidence reveals that Benitez was an admitted supervisor in the Service Center's con- trol information department from 1972-1980. 5 In 1980, this department became known as the service order control department (SOC department). 6 Al- though the Employer claims that Benitez ceased operating as a supervisor in 1980 it failed to an- nounce this to the other employees at that time. See fn. 1 of the judge's supplemental decision for the procedural background of this case 2 The Employer 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. 3 This statement was widely disseminated among employees through union leaflets 4 Because we are finding Benitez to be the Employer's agent, we find it unnecessary to pass on Benitez' supervisory status 5 Benitez was ongmally hired as a switchboard operator. 6 The SOC and switchboard departments are adjoining departments Matteo Diaz was named supervisor of the SOC department in April 19&2. 7 Diaz became terminally ill in 1983 and worked sporadically until going on sick leave in August 1983. During this period and until June 1984, Benitez was the only full-time em- ployee in the SOC department and was considered by some employees to be the service supervisor. The record also shows that in early 1984 Benitez attended supervisory and employee disciplinary meetings and during 1983 and the first half of 1984 Benitez excused absences, adjusted timecards con- cerning minor tardiness, directed employees to work overtime, 8 and referred SOC department em- ployees to the unit manager for resolution of major problems.3 In the spring of 1984, Pedro Santiago was offi- cially named supervisor of the SOC department. Benitez trained Santiago for the position and there- after relayed instructions from Santiago to other employees. The judge found that Benitez was an agent under Section 2(13) of the Act because employees in the SOC and switchboard departments had justi- fiable cause to believe that Benitez was acting for and on behalf of the Employer when performing the duties listed above. The judge stated that re- gardless of whether Benitez was a supervisor, she was at least clothed as one. We agree. The Board has long held that where an employ- er places an employee in a position where employ- ees could reasonably believe that the employee spoke on behalf of management, the employer has vested the employee with apparent authority to act as the employer's agent, and the employee's actions are attributable to the employer. 1° Whether the specific acts performed were actually authorized or subsequently ratified is not controlling."- Accord- ingly, under the circumstances of this case, we find that the Employer placed Benitez in a position where employees in the SOC and switchboard de- partments could reasonably believe that when Ben- itez was talking about the ramifications of a union victory, she was speaking as the Employer's agent. 7 Diaz did not have an office in the SOC department but maintained his old office in the parts department and visited the SOC department several times a day. 8 The record also shows that Benitez regularly substituted for Switch- board Supervisor Cotto and, on one occasion, authorized overtime for a switchboard department employee. 9 Benitez also signed her name in letters to customers as "Service Su- pervisor" Benitez testified that all SOC department employees signed their names using the same subscription Nevertheless, the Employer failed to produce any copies of letters signed by other employees even after the judge expressly requested such evidence. 1° Corrugated Partitions West, 275 NLRB 894, 900 (1985); Bmylull Co, 210 NLRB 288, 294 (1974), enfd 514 F.2d 655, 657 (8th Or 1975). 11 Id 284 NLRB No. 38 SEARS ROEBUCK DE PUERTO RICO 259 Benitez was an undisputed supervisor in the serv- ice department from 1972-1980 and, although her supervisory status was not officially renounced until 1984, it appears that Benitez was placed in a status visibly superior to that of the other SOC de- partment employees, all of whom but Benitez were part-time employees. Moreover, during the period of Diaz' illness and absence and until Santiago became the SOC department supervisor in 1984, Benitez exerted a high degree of influence and con- trol over the daily operations in the SOC depart- ment by attending supervisory meetings, assigning work, excusing absences, and adjusting timecards. Further, Benitez was chosen by management to train Santiago and thereafter served as his conduit, i.e., relaying instructions from Santiago to the other SOC department employees. 12 We therefore find that under the totality of the circumstances, the employees with whom Benitez spoke on 2 Sep- tember 1983 could reasonably have believed that Benitez was allied with, and was speaking on behalf of management as its agent, when she told them that the Employer would subcontract the Service Center's work, if the Union won the elec- tion." [Direction of Third Election omitted from publi- cation.] 12 Port East Transfer, 278 NLRB 890, 895 (1986); Roskm Bros., 274 NLRB 412, 421 (1985); American Lumber Sales, 229 NLRB 414, 420 (1977). 13 We find it unnecessary to pass on sec. 4 of the judge's decision in- volving the alleged "pattern" of Sec. 8(a)(1) intimidation. Although we do not presume that evidence of the objectionable conduct engaged in by Ramon Donis and Taphet Morales was disseminated, we find that when Donis' and Morales' conduct is considered with Ana Benitez' objection- able conduct, which was widely disseminated, the election should be set aside and a new election held Angel A. Valencia-Aponte, Esq. and Antonio F. Santos, Esq., for the Regional Director. Victor M Comolli, Esq. and Rossell M Barrios-Amy, Esq., of San Juan, Puerto Rico, for Respondent-Employer. Vincent M Rotolo, Esq., of San Juan, Puerto Rico, for the Union-Petitioner. Juan Maldonado, Area Representative, Machinists, of 'San Juan, Puerto Rico, for the Petitioner. DECISION ON OBJECTIONS AND RECOMMENDATION FOR A THIRD ELECTION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. On 19 December 1983, International Association of Machin- ists and Aerospace Workers, AFL-CIO (the Union or Petitioner), filed a charge in Case 24-CA-4896 against Sears Roebuck de Puerto Rico, Inc. (Respondent or Em- ployer), which charge was served on Respondent 20 De- cember 1983. On 24 February 1984, Elizabeth Rios, an individual, filed a charge in Case 24-CA-4921, which charge was served on Respondent about 27 February 1984. Five months before these charges were filed, on 18 November 1983, the Regional Director, for Region 24, of National Labor Relations Board issued a second sup- plemental decision on objections, order, and notice of hearing in Case 24-RC-6677 1 in which the Regional Di- rector, inter alia, directed the holding of a hearing on various objections relating to the second election and conduct affecting the results of the second election, which election was held on 16 September 1983. Pursuant to the above-noted charges, a consolidated complaint issued 6 April 1984, alleging violation of Sec- tion 8(a)(1) and (3) of the National Labor Relations Act. Pursuant to the Regional Director's order of 6 April 1984, the objections in the representation case and the unfair labor practice allegations of the consolidated com- plaint were consolidated for hearing before an adminis- trative law judge. Pursuant to this prior notice and order, the consolidat- ed hearing opened before me on 13 August 1984, with all parties represented by counsel, and closed on 29 August 1984. On 27 August 1984, however, the parties, with the ex- ception of the Union, entered into a settlement agree- ment relating to the consolidated unfair labor practice complaint. The Union, while not joining in the settle- ment, stated on the record that it did not oppose it. Be- cause more than 5 days of hearing in the consolidated unfair labor practice cases had occurred, in which much testimony relating to the alleged unfair labor practices (also constituting alleged objectionable conduct) was taken, it was decided, with the consent of the parties, that I continue to hear the objections in the representa- tion case and, commencing 27 August 1984, to permit the parties to proceed in the representation objection case with the erstwhile General Counsel representing the Regional Director in the presentation of evidence from the Regional Director's files. See Sahara-Tahoe Corp., 173 NLRB 1349 (1968). After the close of the hearing on 29 August 1984, the Respondent, having waived final argument, submitted a posthearing brief which has been duly considered. On the basis of the entire record, including the brief, and pursuant to Section 9 of the National Labor Relations 1 The above-captioned case is the sole unresolved matter flowing from the erstwhile consolidation for hearing of three cases, Cases 24-CA-4896, 24-CA-4921, and 24-RC-6677 The two unfair labor practice cases, in one of which International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), was the charging party and in the other of which, individual, Elizabeth Rios, was the charging party, were settled on the sixth day of the hearing in Puerto Rico on 27 August 1984 and, on motion, served from the objections in the representation case. Because, as will be noted hereafter, much of the testimony and evidence in the unfair labor practice cases, related to certain objections in the representation case, and because the consent of all parties was had, commencing 27 April 1984, I sat as a hearing officer on the unresolved objections in the representation case. Notwithstanding the format of the present decision, the parties requested, and I granted, that the case be treated for purposes of filing briefs, for instance, as an unfair labor practice case (consolidated with the underlying representation case) pursuant to Sec 102.46 of the Board's Rules and Regulations See Rules and Regulations Sec. 102 69(f) for the procedure concerning decisions in hearings on objections in repre- sentation cases. 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act, and Sections 102.69(f) and 102.46 of the Board's Rules and Regulations, I issue this Report on Objections and Recommendation for a Third Election. FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION: THE EMPLOYER'S OPERATIONS The consolidated complaint alleges, Respondent, i.e., the Employer in the representation proceedings, admits, and I find that Respondent, a corporation duly organized under the laws of the Commonwealth of Puerto Rico, is engaged at its distribution and service center at Cupey, San Juan, Commonwealth of Puerto Rico, and various other places in Puerto Rico, in the retail sale, service, and distribution of general merchandise throughout Puerto Rico. In the year ending 6 April 1984, a repre- sentative period of its operations generally, Respondent purchased and transported to Puerto Rico household goods, appliances, clothing, and other goods and materi- als valued in excess of $50,000 of which goods and mate- rials valued in excess of $50,000 were transported and delivered in interstate commerce to Puerto Rico from points directly outside the Commonwealth of Puerto Rico, and during the same period, Respondent derived gross revenues valued at in excess of $500,000 from retail sales of such materials. I find, as Respondent admits, that at all material times it has been and is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNION AS A STATUTORY LABOR ORGANIZATION The consolidated complaint alleges, Respondent admits, and I find for purposes of the instant case that International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), at all material times has been, and is, a labor organization within the meaning of Section 2(5) of the Act. III. BACKGROUND PROCEEDINGS AND THE EVIDENCE As above noted, the Regional Director issued her second supplemental decision on objections, order, and notice of hearing on 18 November 1983. The recitation of facts therein, to which no objection or exception was raised, indicates that pursuant to a Decision and Direc- tion of Election issued by the Regional Director on 9 December 1981, the Employer, Sears Roebuck de Puerto Rico and the Union submitted to an election by secret ballot on 21 January 1982 in a unit of all full-time and part-time service depdrtment employees, employed by the Employer at its Service Center located at Cupey, San Juan, Puerto Rico; but excluding all other employ- ees, fashion department employees, warehouse employ- ees, guards and supervisors as defined in the Act. On timely objections thereafter filed by the Union-Pe- titioner to the conduct of the election, the Regional Di- rector, on 25 February 1982, issued a supplemental deci- sion on objections, order, and notice of hearing. Pursuant to a hearing on objections held on 19 and 22 April 1982, the hearing officer issued his Report and Recommenda- tion on Objections. Thereafter, affirming his recommen- dation that the election be sent aside and a second elec- tion held, the Board, on 23 August 1983, issued its Deci- sion and Direction of Election adopting the hearing offi- cer's findings and recommendations and ordering that a second election be conducted. The second election was conducted on 16 September 1983. The tally of ballots in the second election reveals that of approximately 224 eligible unit voters, there was 1 void ballot, 91 votes cast for the Union and 116 votes cast against the Union. Although there were eight chal- lenged ballots, the challenges were insufficient in number to affect the results of the election. On 23 September 1983 the Union filed timely objec- tions to the second election. As above noted, the Region- al Director caused an investigation thereof to be made and, on 18 November 1983, issued her second supple- mental decision on objections, order, and notice of hear- ing in which she directed a hearing on five out of the eight filed objections to the election and conduct affect- ing the results of the second election. On 6 April 1984 the Regional Director issued the con- solidated complaint and her order consolidating cases and notice of hearing when the hearing on objections in the representation case was consolidated with the con- solidated complaint. At the outset of the hearing, the General Counsel, over Respondent's objection, was permitted to amend the allegations of violation of Section 8(a)(1) of the Act as such violations appeared in the consolidated complaint with respect to two of the three existing allegations (pars. 5(a) and (b)). The third such allegation (par. 5(c)) was unaffected. The General Counsel, again over Re- spondent's objection, was also permitted to add three new allegations of independent violations of Section 8(a)(1) of the Act: paragraphs 5(d), (e), and (f). In addition to the amendments to the complaint with regard to the above independent violations of Section 8(a)(1) of the Act, I granted the motion of the Regional Director's representative (i.e., also, the Same General Counsel) to amend the Regional Director's second sup- plemental decision on objections by adding thereto, as additional objections to the election, paragraphs 5(a), (b), (c), and (d) of the complaint. It was noted for the record that newly added paragraphs 5(e) and (f) of the amended consolidated complaint already existed as objections to the election as paragraphs 1(d) and 4(A) of the filed ob- jections to the election. In short, therefore, the three original allegations of independent violatibn of Section 8(a)(1) (pars. 5(a), (b), and (c)) of the Act (as amended at the opening of the hearing) were included as additional objections to the election; new paragraph 5(d) was added to the objections; and, it was noted that new complaint paragraphs 5(e) and (1) already existed in the objections as, respectively, paragraphs 1(D) and 4(A) of the objec- tions.2 Respondent requested no additional time to defend or prepare. 2 The only objections to the election that did not constitute unfair labor practices, in sum, related to a certain captive-audience speech and to the Employers use of an alleged supervisor, Ana Benitez, as one of its election observers The Regional Director may add Objectionable con- Continued SEARS -ROEBUCK DE PUERTO RICO 261 As I review the evidence, however, it is unnecessary for me to pass on the objections, subject of much testi- mony, regarding the status of alleged Supervisor Ana Benitez, her allegedly coercive, threatening statements, and her acting as an election observer for the Employer over the Union's objection; or the allegedly offending leaflets posted by the Employer or certain alleged unlaw- ful promises of benefits by Respondent's supervisor, Hawkins, to employee Angel Cordero. Rather, the clear- est evidence of record, in my judgment, regarding objec- tionable conduct relates to an objection encompassing the allegations of section 5(b) of the now-settled com- plaint concerning Respondent's personnel manager, Japhet Morales, and certain threats of discharge he made to employees at the beginning of September 1983.3 Conversations Between Japhet Morales and Olga Y. Matos and Maria Consuelo Cartagriea (a) As above noted, the second election occurred on 16 September 1983 (a Friday). Unit employee, Olga Matos, a telephone solicitor hired on 22 July 1983 and terminated in a reduction-in-force on 7 September 1983 (G.C. Exh. 3), testified that around 4 September 1983,4 about 4 p.m., her supervisor, Ramon Donis, told her to go to the office of Personnel Director Japhet Morales because Morales wanted to talk to her. She met alone with him for a period of about 20 minutes to one-half duct that she discovers in her own investigation to the objections requir- ing hearing that was not alleged in the list of objections timely filed by the parties. American Safety Equipment Carp, 234 NLRB 501 (1978), Dayton Tire & Rubber Corp. 234 NLRB 1285, 1287 (1978), Certainteed Corp. v. NLRB, 714 F 2d 1042 (11th Cir 1983), and NLRB v Fhntkote Ca, 623 F 2d 876 (3d Cir. 1980). It should be noted that I, at the outset of the hearing, questioned whether It was an oversight by the Regional Director in failing to in- clude, as listed objections, the allegations of 8(a)(1) conduct already ap- pearing in pars 5(a), (b), and (c) in the consolidated complaint The com- plaint issued 6 April 1984, 5 months after the 18 November 1983 issuance of the Regional Director's second supplemental decision on objections Respondent at the hearing objected to my raising the question and my subsequent ruling allowing the additional objections Respondent contin- ues its objection in its brief (R. Br 7) I believe my conduct and ruling were proper Especially since pars 5(a), (b), and (c) already appeared as original, existing allegations in the complaint, I conclude there is no basis for alleging error See particularly Florida Steel Corp, 231 NLRB 651, 652 fn 13 (1977). 3 Similarly, I need not address the objection based on par 5(c) of the complaint in which Japhet Morales allegedly offered an employee (Eliza- beth Rios) the unlawful opportunity of directly dealing with him for pur- poses of pay raise rather than going through the ordinary method of gaimng a pay raise with the Employer I also need not resolve the objec- tion based on par 5(a) of the complaint relating to alleged unlawful inter- rogation of employees by Respondent's promotion department supervisor, Ramon Donis 4 However, 4 September 1983 fell on a Sunday Although it does not affirmatively appear that the Employer's operations were closed on that Sunday, I find that Motos' preliminary insistence on the conversation with Morales taking place on 4 September was questionable. She also ad- mitted she could not remember the day of the week on which it oc- curred I conclude that this probably incorrect testimony as to date does not materially affect her credibility. Not only did Matos ultimately testify that her conversation with Supervisor Morales could have been on any day of the week other than a Friday or Saturday, and not only did Mo- rales himself place this Maths conversation in September, before the elec- tion (Tr. 29 August, /3., 278), but experience has shown that otherwise credible witnesses often give erroneous, inconsistent testimony on dates, days, and even sequence of events Plumbers Local 195 (Stone & Webster), 240 NLRB 504, 513-514 (1979), enfd per curiam without opinion 606 F 2d 320 (5th Cir 1979). hour. Morales told her that he had called her in because he understood that she had doubts concerning rumors in the promotion department relating to the seven new em- ployees, including herself, who were allegedly hired to vote in the upcoming election for the Company and against the Union, giving the Company a larger margin in the election. Morales told her that the rumor was untrue and that the Employer had employed the seven new employees because they were needed. At the end of the conversation, however, after discussing Sears and its unions in the United States, he told her that her job de- pended on how she voted in the election. Although Ramon Donis testified in the proceeding after Matos gave her testimony, he did not testify with regard to, and certainly did not deny, his having directed Olga Matos to proceed to Personnel Director Morales' office. (b) Unit employee Maria Consuelo Cartagena testified that about 10 days before the election (Tr. 28 August, pp. 61, 63) Supervisor Ramon Donis came to her desk and told her that Personnel Director Morales wanted to speak to her in the conference room. Cartagena's conver- sation with Morales, alone in the conference room with him, started with his telling her that the second election was due to false union objections, but that in any case a second election would be held. When she thereafter asked Morales how many votes had been cast in favor of the losing Union in the first election, Morales became "more tense" and his replies became "serious." He told her that the Union had lost by 11 votes and, in a "high tone" and "pointing finger in [my] face" told her: "What you have to think about at the moment [the election] is that your job is at stake." Morales then told Cartagena that that was all he had to say to her and she left the room. Cartagena, like Matos, was one of seven new unit em- ployees hired as telephone solicitors by the Employer in July 1983. With regard to Cartagena's testimony, Donis, as was the case with Olga Matos, failed to testify concerning whether he had directed either or both of them into, re- spectively, the conference room or Morales' office in September, prior to the 16 September election. Rather, with regard to Cartagena, his only testimony was a denial of his alleged unlawful interrogation of her in a period 3 weeks before the September election. I need not rule on this latter controverted testimony. In particular, however, he did not deny that he directed her to see Morales. Japhet Morales testified, with regard to his conversa- tion with Olga Matos, that Matos, at the beginning of September, came into his office voluntarily and had not been directed to come in; that Olga Matos had expressed doubts concerning certain union leaflets that had been distributed and wanted to know what was going on "generally." He mentioned the 1982 election, the Union's objections, and the coining second election process of which she would be part. He specifically denied telling her that her job depended on how she voted. He testified that the conversation lasted about 10 minutes. 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD With regard to his September conversation with Maria Cartegena, Morales testified that it started in the hall with Cartagena, like Matos, telling him of her "doubts." According to Morales, Cartagena expressed "doubts" flowing from a prior private conversation with Supervi- sor Ramon Donis, which took place because of her ab- sence when Chief Supervisor Paul Unkle previously gave a speech to employees regarding the coming elec- tion. Morales said she expressed doubts not only with regard to her conversation with Donis, but expressed doubts concerning the Union's handouts and the election. He specifically denied both telling her that her job was at stake depending on how she voted and pointing his finger at her. Both Matos and Cartagena were alleged to have been unlawfully discharged in the consolidated complaint. At the time they gave their testimony, therefore, they had a monetary interest in the outcome of the case. Discussion The Regional Director's first Decision and Direction of Election is dated 9 December 1981 with the ensuing first election occurring 21 January 1982. The subsequent Hearing Officer's Report and Recommendations on Ob- jections, recommending that the first election be set aside, is dated 30 September 1982. The Board's Decision and Direction of Election, dated 23 August 1983, adopt- ing the hearing officer's recommendations, ordered the holding of the second election (the election at issue herein) for 16 September 1983. In Ideal Electric Co., 134 NLRB 1275, 1278 (1961), the Board, in reconsidering the problem of the time period during that objectionable conduct prior to an election will be taken into account, extended the date back to the filing of the petition rather than the issuance of a decision and direction of election or notice of hearing. In the instant case the parties agree that, whatever the application of the outside limits of the Ideal Electric rule to the present facts, the critical period would be, and certainly includes, the dates between the Board's 23 August 1983 Decision and Direction of Election, order- ing a second election, and the date of the second election itself, 16 September 1983. Because Maria Cartagena and Olga Matos credibly testified and, indeed, Japhet Mo- rales admitted that the private conversations with the two employees occurred in early September 1983, before the election, I find that the Morales conversation with Matos and Cartagena occurred in the Ideal Electric criti- cal period so that such Morales conduct, if objectionable, would form the basis of a recommendation to set aside the second election. I found Olga Matos' and Maria Cartagena's testimony, notwithstanding their then existing monetary interest, with regard to their early September 1983 conversation concerning the election with Supervisor Morales, con- vincing in delivery and credible in substance. On bal- ance, I find Japhet Morales testimony, including denials, incredible. In the first place, I noted that both Matos and Carta- gena testified, contrary to Morales' testimony of their voluntary appearance, that they were directed respec- tively into Morales' office or conference room by their supervisor, Ramon Donis. This Matos and Cartagena tes- timony, identical on this point, occurred before their conversations with Japhet Morales became a credibility issue on this point. Thus, at the outset, Matos and Carta- gena, on behalf of the Union, gave parallel testimony re- garding Donis' conduct in that he directed them to see Morales. When, in the Employer's defense, Donis testi- fied, he failed to address, much less to deny, their testi- mony that he directed them into Morales office of the conference room. When Morales thereafter specifically denied that Matos was directed to see him, and testified that she voluntarily came in, Donis was not recalled even after Morales had testified, denying that Cartagena and Matos were directed to see him. Having observed no circumstances indicating Matos-Cartagena collusion on this point, I find that Donis' failure to deny clearly weighs in favor of crediting the Matos and Cartagena versions. I credit such testimony. Having thus found that they were directed to see Morales by Supervisor Donis, on uncontradicted testimony insofar as Donis is con- cerned, the balance of Morales' testimony, especially flowing from the voluntary appearances of Matos and Cartagena (due to their coincidentally having "doubts") becomes heavily suspect in my judgment.5 Furthermore, there was no subsequent support by Japhet Morales or from any other source concerning Cartagena's "doubts" springing from her prior conversa- tion with Supervisor Donis. While, as I have said above, I need not pass on the issue of Donis' alleged coercive interrogation of Cartagena sometime before her conver- sation with Morales, I note that Morales did not testify that he ever returned to Donis to inquire about Donis' conversations with both Matos or Cartagena that gave rise to their "doubts" concerning the union election. Indeed, Morales testified that Cartagena sought him out because of doubts arising from what Donis told her. Thus, there was not only no testimony that Morales ever inquired of Donis as to what he had told either Matos or Cartagena to give any "doubts," but, more important, there is only the most generalized Morales testimony concerning what Cartagena allegedly expressed to Mo- rales as her "doubts." Thus, Morales testified only gener- ally that Cartagena had "doubts" with regard to the union leaflets that are handed out. He also said that her doubts were similar to Olga Matos' "doubts" and, in ad- dition, Morales never testified about what Matos' "doubts" were with regard to the union handouts. I regard Morales' testimony as general and unconvincing and, indeed, supports their testimony that he called them in rather than their seeking him out. Thus, in sum, Donis not only did not at any time deny the Matos-Cartagena testimony that he had directed them to see Morales (to support Morales' testimony that 5 It cannot be successfully argued, therefore, that Morales may simply not have known that Donis directed them to see Morales The entire thrust of Morales' testimony was his fortuitous meeting of Cartagena in the hall In addition, again, Donis failed to deny that, in any event, he directed them to see Morales Morales having specifically placed the matter in Issue, Donis should have denied their testimony. Furthermore, I credit Matos' testimony, which explicitly states that Morales told her he had called her into his office because Morales heard she had doubts (Tr. 27 August, p 10). SEARS ROEBUCK DE PUERTO RICO 263 both Cartagena and Matos spoke to him on a voluntary, indeed, an accidental basis), but the specificity of Carta- gena's and Matos' testimony impressed me more than Morales' generalized testimony with regard to their "doubts" that allegedly occasioned their coincidental, voluntarily seeking him out to discuss these "doubts," arising from Cartagena's conversations with Supervisor Donis, which conversations Morales, on this record, did not inquire into. I also observed, in particular, that when Morales was asked whether, pointing his finger, he had told Cartagena that her job depended on how she voted (as Cartagena testified), his denials did not impress me as effective. As I observed him, his denials were not truth- ful. For the above reasons, I conclude that, on balance, Olga Matos and Maria Cartagena are to be credited and Morales is not to be credited in that in or about the period 10 days prior to the 16 September 1983 election, and therefore within the Ideal Electric period, Morales, the personnel director and supervisor, told Cartagena and Matos that their jobs depended on how they voted in the election. Such statements are threats of warnings of discharge depending on how the employee voted. They constitute separate unfair labor practices, a fortiori, constituting objectionable conduct because they interfere with the exercise of free and untrammeled choice in the °election, Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). Such repeated threats, from the personnel direc- tor, a high official, including a threat of discharge de- pending on how employees vote, are presumed to be dis- seminated throughout the unit, absent proof to the con- trary. Horizon Air Services, 272 NLRB 243 (1984); Ohio New & Rebuilt Parts, 267 NLRB 420 (1963); General Stencils, 195 NLRB 1109, 1110 (1972); Westwood Horizons Hotel, 270 NLRB 802 (1974); United Broadcasting Co., 248 NLRB 403 (1980); NLRB v. J-Wood/A Tappan Divi- sion, 720 F.2d 309, 317, fn. 11 (3d Cir. 1983). There was no such contrary proof because Morales denied the threats in the first place. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 6 ORDER (1) The election of 16 September 1983 in Case 24-RC- 6677 is aside. (2) Case 24-RC-6677, having been severed from Cases 24-CA-4896 and 24-CA-4921, shall be returned to the Regional Director for Region 24 for the purpose of hold- ing a new election as soon as feasible, under the supervi- sion of the Regional Director for Region 24, at such time and place as the Regional Director deems circumstances afford a free choice of a bargaining representative in the appropriate unit described in the aforesaid Regional Di- rector's Second Supplemental Decision on Objections, dated 18 November 1983. 6 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. Angel A. Valencia-Aponte, Esq. and Antonio F. Santos, Esq., for the Regional Director. R. Steve Ensor, Esq., James Allan Smith, Esq., Robert M. Godfrey, Esq. (Smith, Currie & Hancock), of Atlanta, Georgia, for the Employer. Reinaldo Ramos Collazo, Esq., of Hato Rey, Puerto Rico, for the Union-Petitioner. Juan Maldonado, Area Representative, International As sociation of Machinists and Aerospace Workers, AFL CIO, of San Juan, Puerto Rico, for the Petitioner. SUPPLEMENTAL DECISION ON OBJECTIONS AND RECOMMENDATION FOR A THIRD ELECTION STATEMENT OF THE CASE On 10 October 1984 I issued a Decision on Objections and Recommendation for a Third Election in the above- captioned matter. By its unpublished Order, dated 17 March 1986, the Board remanded the proceeding, direct- ing me, inter alia, to issue a supplemental decision and recommendations concerning objections to the election (held on 16 September 1983), not resolved in my prior decision.' The Board noted that the Regional Director, in her Second Supplemental Decision on Objections, directed a hearing on five of the Union's eight objections. In addi- tion, by virtue of the Regional Director's representative's amendments to the complaint and the list of objections during the consolidated hearing, 2 allegations of unfair labor practices allegedly occurring in the period immedi- ately preceding the second election (16 September 1983), i.e., about 2 September 1983, were also specified as ob- jections to the election. See Monroe Tube Co., 220 NLRB 302, 305 (1975). Among the objections, whether also alleged as unfair labor practices in the consolidated complaint, or initially appearing in the Regional Director's Second Supplemen- tal Decision on Objections (issued 23 August 1983), are four whose resolution require me to recommend to the Board that it should direct a third election. 1. Paragraph 5(a) of the complaint, as amended, which is also an objection to the second election by virtue of the Regional Director's order consolidating cases (G.C. Exh. 1(m)), alleges: In or about late August or early September, 1983, the exact date being presently unknown to the Acting General Counsel, Respondent by Ramon My prior decision recommended a third election based on unlawful threats by a supervisor to two employees prior to the election. The Board held that this conduct, standing alone, in a unit of 224 eligible voters, absent proof of dissemination, was insufficient to set aside the election On 11 April 1986 I issued an order permitting the Union and the Employer to submit further memoranda presenting legal authority pub- lished subsequent to my 10 October 1984 Decision on Objections. The Employer submitted a timely memorandum of law, dated 23 April 1986, which has been duly considered. 2 The above-captioned representation case, for 6 days, was consolidat- ed with a hearing on alleged unfair labor practices Prior to settlement of the unfair labor practice allegations during the hearing, the then counsel for the General Counsel amended both the consolidated complaint and the notice of hearing in the objections case 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Donis, its Production Department Supervisor, in his office, interrogated an employee concerning the em- ployee's prior membership in, activities on behalf of, and sympathy in and for the Union. In support of this objection, an erstwhile alleged dis- criminatee, Maria Consuelo Cartagena, testified (Tr. 28 August 1984, pp. 61, et seq.), that she was employed as a telephone solicitor in the 50-employee promotions de- partment under Supervisor Ramon Donis (Tr. 14 August p. 248). About 2 weeks before the 16 September 1983 election, Donis called her into his office where they had a 10-minute conversation. Donis reminded her that a second election was to take place and that the Union's objections to the first election had been "completely false." He observed that when a person is young [the witness was a young woman] one experiments with "so- cialist ideas"; but that when one becomes more mature, "one has to think of family and the children." Donis, after asking her about her husband and daughter, then asked where she had previously worked and whether she had belonged to a union. She told him where she had worked, that she had not belonged to a union, but knew the benefits of union membership. Donis made a negative gesture with his head and, with a hand gesture, signaled the end of the meeting (Tr. 25 August, p. 62). Several days later, Donis came to her desk and told her that Personnel Manager Japhet Morales wanted to speak to her in the conference room. She then went to see Morales. The results of that subsequent 15-minute private conversation appear in my prior decision on ob- jections, issued 10 October 1984, and in the Board's in- stant Order remanding: unlawful threats concerning her job depending on how she voted in the election. Donis admitted to having a 2-minute private office conversation with Cartagena, after the Board's Direction of a Second Election, in which he told her only that she had the right to vote in the election. He said that the reason he called her in was that she, unlike other em- ployees in the promotions department, had not been present at a meeting of employees on the previous day addressed by Chief Supervisor Paul Unkle. He specifical- ly denied asking , her if she had previously belonged to a union or suggesting that young people were socialistic (Tr. 29 August, p. 271). When giving her testimony, Cartagena had already settled any outstanding monetary claim as an alleged dis- criminatee; and apart perhaps from lingering ties based on camaraderie, I detected no element of interest or bias in her otherwise credible testimony. On the other hand, my rereading of the record and my recollection of the witnesses, including the open antiunion position of the employer's supervisors (Japhet Morales, supra; Unkle, G.C. Exhs. 2(a), (t); Hawkins, Tr. 29 August, p. 210 et seq.), leads me to credit Cartagena and discredit Supervi- sor Donis. I conclude that he did call her to his office as a new employee who had not been present at Supervisor Unlde's talk to employees about the election on the pre- vious day, but that his zeal to impart a position against employee choice of the Union may have caused him to step over the line and, in that locus-of-authority, in a one-on-one meeting, that he did ask Cartagena if she had previously belonged to -a union and did equate unions with socialistic, youthful feelings. Because of his openly hostile antiunion sentiments and relationship to Personnel Manager Morales in Morales' subsequent commission of objectionable conduct with regard to this same employ- ee, I find that Donis' actions were evidence of a coercive plan to intimidate Cartagena rather than an isolated act. There is no record evidence that Donis was a prom- ion supervisor, was included in the unit, or that Carta- gena-was a known union adherent. Compare: Paintsville Hospital Co., 278 NLRB 724 (1986), with Rossmore House, 269 NLRB 1176 (1984). On the contrary, Donis' questions and remarks were designed to elicit acknowl- edgement from a new employee of any prior union affili- ation or sympathy, and were delivered in an explicitly hostile context before an election. I conclude that such private, hostile interrogation in Donis' office is "coer- cive" within the meaning of Section 8(a)(1) of the Act and constitutes objectional conduct, Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962), occurring after the direc- tion of the second election, indeed about 2 weeks before the election, and thus in the period proscribed in Ideal Electric Co., 134 NLRB 1275, 1278 (1961). With regard to the objection encompassed in para- graph 5(b) of the complaint, in which Japhet Morales un- lawfully threatened employees Cartagena's and Olga Matos' jobs, I have already found such threats to be vio- lations of Section 8(aX1) and proscribed objectionable conduct in my prior decision on objections, issued 10 October 1984. 3. Paragraph 5(c) of the consolidated complaint, a matter included as an objection to the election, alleges that in the beginning of September 1983, Personnel Man- ager Japhet Morales, in violation of Section 8(a)(1) of the Act, discouraged membership in the Union by telling an employee, in the conference room, to deal directly with Respondent with respect to terms and conditions of em- ployment. In support of this objection, the General Counsel ad- duced the testimony of Charging Party Elizabeth Rios, an alleged discriminatee at the time she gave her testimo- ny. Rio's father, at the time she testified, was a long-time employee of the Employer (Tr. 15 August, p. 410) and Rios was a student and a part-time telephone solicitor employed for 3 years in the promotions department su- pervised by Ramon Donis. Rios was friendly with a union supporter (15 August, p. 356), Wanda Castro, who distributed union leaflets and wore a union T-shirt prior to the second election. Rios took her breaks With proun- ion employees. She did not wear the union T-shirt or dis- tribute union leaflets. Around the beginning of September 1983, one by one, Morales called Rios' co-employees (and Rios) into the conference room to give them private "orientation" on the approaching election (Tr. 15 August, p. 409). 3 Mo- 3 Olga Matos credibly testified that it was around 4 September 1983 that Personnel Manager Japhet Morales called her into his office and there threatened her. See my prior decision on objections. Like Rios, she was a telephone solicitor supervised by Donis. Morales called in for "ori- entation" the seven new, part-time telephone solicitors' (Tr. 27 August, pp. 17-18). SEARS ROEBUCK DE PUERTO RICO 265 vales reminded her both of her father's long employment with the Employer and of the employer-granted oppor- tunity she enjoyed of continuing her studies while work- ing part time. He then told her that, although the elec- tion was by secret ballot, he wanted her support. After she stated that she had little knowledge of what the Union was "offering," Morales told her that if she needed an increase in salary, that "they," i.e., the person- nel department, would be the persons who would inter- cede for her that she needed no "intermediary" for a pay increase; that all she had to do was to go to them and ask for the increase (Tr. 15 August 1984, pp. 410- 413). Morales denied having any conversation with Rios in September 1983 about the Union; about coming to him for pay raises; and denied that he has any authority over wage increases at all (Tr. 29 August 1984, pp. 275-278).4 I was favorably impressed with Rio's testimony and her demeanor. I observed her to be an open but careful witness. Because she was an alleged discriminatee and a Charging Party, I was particularly careful in measuring her reliability. Yet, I have taken into account her testify- ing against the Employer in the face of her father's cur- rent employment by the Employer (see particularly Tr. 15 August 1984, p. 389). On the other side are Morales' denials. I have already found Morales to be untruthful in denying his unlawful, contemporaneous threats made to Olga Matos and Maria Consuelo Cartagena. A review of his testimony particu- larly on the question whether employees approached him voluntarily amply demonstrates his unreliability. He testi- fied (1) Cartagena as a new employee, caused him to be- lieve she had "some doubts" about the Union's position and thus he approached her concerning those undisclosed doubts; and also (2) testified "we just got together"; and then (3) asserts that, like Olga Matos, Cartagena ap- proached him. The transcript shows other evasiveness (Tr. 29 August 1984, pp. 282-283). I find no reason to discredit Rios. I am satisfied that the record shows that Morales is not a credible witness. Crediting Rios, I conclude that, as alleged, Morales, the personnel manager for over 200 employees in the central service department (and warehouse) (Tr. 14 August 1984, pp. 217-219), in September 1983, in the proscribed period, unlawfully offered Elizabeth Rios, a unit employ- ee, the opportunity and advantage of dealing directly' with him for wage increases, rather than remain subject to ordinary employee wage-scheduling, in order to dis- courage her support for the Union and gain her support for the Employer in the approaching election. This Con- duct constitutes a violation of Section 8(a)(1) and is also objectionable conduct. 4. Furthermore, in view of the relationship of Morales' unlawful acts with Supervisor Donis engaging in bon- temporary objectionable conduct (coercive interrogation of unit employee Cartegena) and Donis' participation in setting up employees for Morales' unlawful threats, it 4 Some of his testimony suggested that he had no authority over wage increases when the employer's wage schedule is periodically established, implying that until the schedule is established, he had some flexibility He ultimately testified that he had no authority over wages "at all" (Tr. 29 August, p. 277). would appear that other unit employees were being sub- jected to similar Morales inquires (the testimony of Matos and Rios, supra). On this evidence, I would con- clude that the employer is to be held responsible for no isolated objectionable conduct. Rather, the evidence shows that other unit employees were required to speak privately with Morales about the election; that Morales was a dishonest witness with regard to his interview with three unit employees concerning the election; that there is hearsay concerning a fourth employee (Nanette Cintron) who was apparently unlawfully threatened by Morales in the same way he threatened Olga Matos; job (Tr. Vol., 27 August, pp. 17-18); and that, in sum, in the face of these proven acts, there is a reasonable inference, which I draw, that pursuant to plan, other unit employ- ees were similarly privately coerced by Morales about the same time. Thus, in view of Morales' unlawful threats and promises to three employees; Donis' unlawful interrogation; Cartagena's credited testimony (Tr. 15 August 1984, p. 409) that Morales, in the beginning of September, was calling unit employees into the confer- ence room5 to give them "orientation" concerning their voting in the approaching election; in view of Morales' evasive testimony in which he ultimately admitted direct- ing supervisors to have the employees visit him in his office, or in the employee training room, one by one, to discuss the election (Tr. 14 August, pp. 149 et seq.); and in view of the employer's admitted hostility to the em- ployee' selection of the Union as their representative in the election, unequivocally communicated to the unit employees by the highest supervisor in the unit (Central Service Manager Unkle, G.C. Exh. 2(a)-(t)), that this employer's preelection conduct in the proscribed period comes within the rule in NVF Co., 210 NLRB 663 (1974), as recently applied in Michael's Market, 274 NLRB 826 (1985). In deciding whether to set aside an election in a par- ticular case, certain factors are to be considered (Mi- chael's Market, supra at 828 "the small size of the groups interviewed; the focus of the interview; the position of the interviewer in the employer's hierarchy; and the tenor of the speaker's remarks." In the instant case, as in Michael's Market, employees were called in individually 7 by Personnel Manager Mo- rales, who directed them to appear in his office through their immediate supervisors. In the three instances of which we are fully aware, Morales unlawfully threatened 5 it is unclear whether the interviews were in Morales' office or in the training room, next door (Tr. 14 August 1984, pp. 149 et seq.). 6 In Michael's Market, supra, the Board held (Chairman Dotson dis- senting) that three Instances of unlawful interrogations by the company president, in a unit of 78 employees, where the employees were called in individually, were sufficient to raise a presumption of dissemination, which was not rebutted according to Member Hunter. Member Dennis, agree- ing with Member Hunter that the election be set aside, refused to join him in applying the presumption of dissemination, citing Metz Metallurgi- cal Corp., 270 NLRB 889 (1984) Chairman Dotson found the interroga- tions to be isolated and would have certified the results of the election 7 Morales called in at least four unit employees The record is unclear how many more. Some were threatened, another was the subject of an unlawful promise Of benefit MoraleS contradicted by Matos and Rios, testified that the employees all came in voluntarily to speak to him about the election (Tr 14 Auguat 1984, p 150) 1 do not credit his testimony. 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the jobs of two (Matos and Cartagena) and made an un- lawful promise of direct dealing on a future wage in- crease to the third (Rios). 8 In short, if an election is or- dered set aside on the basis of three unlawful interroga- tions in a unit of 78 employees, as in Michael's Market, supra, then it would appear that when three employees were either unlawfully threatened or received unlawful promises—not mere unlawful interrogation—then the presumption of dissemination should be raised and, absent rebuttal, should result in setting aside the election. Once it is established, as here, that employees were sys- tematically called in, and more than four were called in, even if the exact number is not established, the effect of the high percentage of unlawful conduct applied to the known number of incidents should be extrapolated when accounting for the size of the instant unit (224) thus rais- ing the presumption. Here, as in NVF Co., and Michael's Market, supra, the evidence quite clearly shows a "pat- tern" of 8(a)(1) intimidation visited on unit employees called singly into the office of the highest personnel offi- cial. Alternatively, even without a presumption of dis- semination, under Michael's Market, the election should nevertheless be set aside. The Regional Director's second supplemental decision on objections directed a hearing on Objection 4(A). The objection is that: (A) Ana L. Benitez, an alleged Employer super- visor, on September 2, at 4:00 p.m., called a meeting of employees and stated that if the Union won the election, the Company would close the Cupey Serv- ice Center. The [Union] also alleges that a pro-Em- ployer employee repeated this statement the next day and that the statement by Benitez spread throughout the plant. Moreover, an employee re- quested Employer supervisor Hawkins to "clarify" the Benitez statement but Hawkins did not reply. The above objection raises two issues: Was Benitez a supervisor within the meaning of Section 2(11) of the Act and thus, in making any such statement, the Em- ployer's agent within the meaning of Section 2(13) of the Act? Did she make the statement attributed to herr Supervisory Status The General Counsel produced two witnesses to prove Benitez' supervisory status: Marilyn Ayala and Victor Veguilla. Ayala, at the time of the hearing, employed for 8 years as a receptionist in the switchboard department, a sup- porter of the Union, makes out the daily routes of the technicians who service appliances sold by the Employer and orders parts for the Employer's operations in other cities in Puerto Rico. She, among all the switchboard op- 8 As to the fourth employee (Nanette Cmtron) Morales called in, see Tr 27 August 1984, pp. 17-18 9 There would appear to be no dispute that a threat to close the busi- ness and leave Puerto Rico if the Union won the election would be among the most coercive statements under the Act. It is a hallmark viola- tion NLRB v. Jamaica Towing Go, 632 F.2d 208, 208-214 (2d Cir 1980). If made within the proscribed period before an election, it is also objec- tionable conduct. erators, works closest to the service order control de- partment (SOC) (Tr. 15 August, p. 328). The switch- board department is located next to, and operates in im- mediate conjunction with, and in continuous contact with, both the SOC and the promotions department. This intimate integration of functions (see particularly, Tr. 29 August 1984, pp. 254, 100-101), relates to the receipt of requests for service and the scheduling (and changes in scheduling) of service orders ultimately executed by the repair technicians who service the appliances sold by the Employer (Tr. 14 August 1984, pp. 274-275). Benitez was first hired as a switchboard operator, has worked for the Employer for 18 years, and, for 8 years prior to May 1980, was a supervisor in the department that, after 1980 computerization, became known as the service order control department. It is the employer's position that at all material times after May 1980, Benitez was, and is now, an "ordinary Clerk" in the SOC De- partment (Tr. 29 August 1984, p. 214). She is the only full-time employee in that department. When Ayala was first employed, her supervisor in the switchboard department, Lucy Cotto, introduced her to Benitez as the supervisor of the department (prior to name change and computerization) and no one has ever stated that she was no longer a supervisor. The only other person mentioned as thereafter having supervisory functions in the SOC was Matte° Diaz. Diaz, for many years, was the supervisor in "Division 98," i.e., the parts department. In April 1982, Diaz was also named supervi- sor in SOC, but maintained his office (in the parts de- partment), which was some distance away, and it took 2 to 3 minutes to travel between departments. Even before Diaz became terminally ill in 1983, Benitez, and not Diaz, according to Ayala, was actually the SOC supervi- sor (Tr. 15 August, p. 334). There is no dispute, more- over, that Diaz, regularly and frequently absent in 1983, began receiving medical treatment commencing a period long prior to the 16 September 1983 second election and during that time, although he appeared from time to time in SOC until the spring of 1984, there was no "supervi- sor" in the SOC on a daily basis other than Benitez (if, in fact, she was a supervisor). No one, in any event, other than Benitez, on a daily regular basis, was acting as SOC supervisor in September 1983 (Tr. 14 August, pp. 290- 291; Tr. 15 August 1984, p. 332). Diaz Ultimately did not work at all and was placed on sick leave about 2 or 3' months before the instant hearing. Particularly in the month of September 1983, when he was also entirely absent, there was no supervisor except Benitez (Tr. 15 August 1984, pp. 322 et seq.; Tr. 28 August 1984,13.184). Until the spring of 1984, Benitez continued as the sole supervisor. When a new supervisor (Pedro Santiago) was named 7 or 8 months after the election, in the spring of 1984, Benitez announced that she no longer ,could super- vise the SOC and was no longer a supervisor (Tr. 15 August 1984, p. 324). This Ayala testimony concerning Benitez' declaration was never denied." Also undenied " Benitez testified that there is a supervisor in each department (Tr 28 August, p. 148), and that Diaz was the supervisor in SOC, that he was also the supervisor of the parts department where he maintained his Continued SEARS ROEBUCK DE PUERTO RICO 267 is Ayala's testimony that in the 1983-1984 hiatus between Diaz' long illness, his ultimate departure, and Santiago, in the spring of 1984, being named as SOC supervisor, Benitez trained Santiago for the job, after which Benitez announced that she was no longer a supervisor (Tr. 15 August 1984, pp. 335-336). Ayala testified, and SOC em- ployee Annette Guadalupe denied, that no supervisor other than Benitez approved work schedules. Benitez' job functions in the SOC were in dispute. She was the only full-time employee in SOC. The other six or more employees are part-time (Tr. 28 August 1984, p. 158). 11 Benitez testified that the technicians are assigned their repair routes by their supervisors; the SOC employ- ees merely routinely place the printout routes in enve- lopes for individual technicians. Problems for SOC em- ployees are referred to the nearest supervisor or to the assistant manager, according to Benitez. When new parts arrive and work is to be scheduled or changed, any one of the SOC employees allegedly telephone the customer to remind them of the service call. Once telephone calls for service are taken in the switchboard department, Benitez states that SOC breaks down the particular type of required service for relay to the technical supervisor for assignment to the technicians. Neither Cotto, nor Santiago, nor the assistant manager, nor any other Puerto Rico-based supervisor testified to support this tes- timony. Benitez denied that after 1980 she had the power to evaluate employees, authorize overtime, discharge or dis- cipline employee, attend supervisors' meetings, assign work, schedule the work of SOC employees, excuse ab- sence (especially for Switchboard Department Supervi- sor Lucy Cotto), or engage in any other supervisory function. Moreover, the evidence shows that while the employer evaluated Benitez as a supervisor in the period up to May 1980, it evaluated her as an employee as late as 25 May 1983 (Tr. 28 August 1984, pp. 157-158). Further- more, she does not have an office and occupies, like other SOC employees, one of the six desks (occupied by morning and afternoon part-time) in the SOC area (Tr. 14 August, p. 287). On the other hand, as above noted, even the alleged supervisor in SOC has no office in the area. Indeed, the undisputed evidence is that neither the switchboard department nor SOC has an office at all. Thus, the switchboard supervisor (Cotto) and Benitez, if office, and came to the SOC two or three times per day. It would appear, therefore, according to Benitez, that SOC was the only depart- ment without its own resident supervisor Benitez testified that the work in SOC is so routinized that no one gives day-to-day instructions and that any changes in the work are authorized by supervisors from other de- partments (Tr 28 August 1984, pp. 149-150). The parts department is physically separated from SOC (Tr. 14 August 1984, p. 250). There is no evidence, moreover, that the parts department is functionally integrated with SOC,, as are the switchboard and promotion departments There is apparently no dispute that only the Employer's personnel department had the right to hire, fire, discipline, promote, and establish wage rates for unit employees. These powers do not reside in the various department supervisors who are Otherwise admitted by the Employer to be supervi- sors within the meaning of the Act Personnel Manager Morales testified (Tr 14 August 1984, p 246- 247) that, on average, in the 2-year period 1982-1984, there were 12 to 15 full- and part-time employees in the SOC Ayala testified (Tr 14 August 1984, p 287) there were about nine employees in SOC. Annette Guada- lupe, general clerk in SOC, testified there were six or seven in addition to Benitez. she is a supervisor, both occupy desks among their de- partment employees (Tr. 28 August, p. 131). The record does not show the rate of pay or gross pay differential, if any, between Benitez and the SOC employees or be- tween Benitez and other acknowledged supervisors, like Cotto. The evidence (G.C. Exhs. 8, 8(b), 9, and 10) shows that at the time of and before the 16 September 1983 election, Benitez sent written estimates of repairs to cus- tomers. She testified without contradiction that other SOC employees used the same form letter for the same purpose. Benitez subscribed her signature on each of the letters with the title "Service Supervisor" (central serv- ice department). She also testified, with great emphasis, that the other SOC employees also signed their names to such letters with the subscription "Service Supervisor." In view of the matter being placed at issue, the impor- tance apparently attached to the matter (the Employer's direct examination of Benitez), and in view of Benitez' testimony, I, at the time, directed the Employer to there- after produce copies of any letters signed by any of the SOC employees that carried the additional subscription "Service Supervisor." No such letter was produced nor was there any explanation for failure to produce (Tr. 28 August 1984, pp. 145-147). Benitez was asked by the Employer to be the Employ- er's observer in the first election; she volunteered for the same job in the second. She denied being against the Union. The Employer, through its president, has repeat- edly expressed its gratitude for Benitez in two elections acting as its loyal observer (U. Exhs. 4, 5, 6). In support of Benitez, the Employer produced Evelyn Silva Hernandez (sometimes called Hernandez) who, like Marilyn Ayala, is employed in the switchboard depart- ment under Supervisor Lucy Cotto. She testified that Ana Benitez never substituted as a supervisor for Lucy Cotto on Saturdays (Cotto works only on alternate Sat- urdays) or on Cotto's days off. Rather, other supervisors substitute for and perform Cotto's functions, not Benitez. In addition, she testified that Benitez was a "regular em- ployee" in SOC for the past 3 years (Tr. 29 August 1984, p. 244) and that she has not observed that Benitez au- thorized or excused absences, illness, time off, or late- ness. Requests relating to such matters, rather, go to the secretary to the unit manager, as well as requests for per- mission to leave the building. On the other hand, Her- nandez admitted that she did not work every Saturday and did not know who was in charge of the switchboard on such days; and she also did not know what functions Benitez actually performed in SOC (Tr. 29 August 1984, pp. 255-246). Hernandez testified she was not against the Union. The other supervisors who allegedly substitute for Supervisors Cotto were never named or produced. The Union's witness, Marilyn Ayala, testified that Ben- itez wrote estimate letters to customers, did filing, but also established and arranged the SOC employees' work schedules and she, alone, changed their work hours if they were unable to work according to the previous schedule. In addition, on the Saturdays that Supervisor Cotto was not present, Benitez would supervise the switchboard department and, on one occasion, author- 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ized overtime work for an employee. According to Ayala, Benitez excused lateness and would be the person notified if an employee desired to leave the work area and request a pass from the office. Benitez authorized the departure of the employee to go to the office, and grant- ed Ayala herself an excused absence due to illness. Ayala testified that, at the present time, Benitez receives in- structions from Supervisor Santiago. Only Benitez, after Supervisor Diaz' departure, due to illness, like other su- pervisors, made changes in the dates of service for the customers (Tr. 15 August, p. 330). Supervisor Cotto, who might have affirmed or denied any regularized Saturday and day-off supervision ar- rangement, whether formal or otherwise, between herself and Benitez in the switchboard department, was not called as a witness. Ayala's testimony, contradicted by Employer witness Annette Guadalupe, was that SOC employees who telephoned a request for excused absence would initially reach the telephone (switchboard) opera- tors, including Supervisor Cotto and would ask them, in- cluding Cotto, to bring Benitez to the phone to grant the excuse (Tr. 15 August 1984, pp. 340-341). Testimony of Victor M. Verqtnlla Veguilla was employed by the employer from 1971 to March 1983. From 1975 to 1983, he was a promotions department manager and assistant manager supervisor over 50 employees. He was discharged on 17 March 1983 (i.e., approximately 6 months before most of the events herein) and was succeeded by Supervisor Donis. He testified with respect to circumstances in the period within 6 months of his termination. At the time of his testimony, he was plaintiff in a legal action against the Employer for money damages for his allegedly being wrongfully discharged. He testified that at least as late as Christmas 1982 and into 1983, more than 2 years after Benitez allegedly ceased being a supervisor, Center Manager Paul Unlde would call service center supervisor meetings, which both he and Benitez would attend; 12 that she was known to him and others as the SOC supervisor; that she direct- ed the SOC employees to place the service calls into the appropriate zones for service and thus regularly assigned them their work; that Ana Benitez often supervised em- ployeees in the switchboard department; that Switch- board Supervisor Lucy Cotto, in Benitez' absence, would enter the adjoining SOC and direct the employees' work there; that when Benitez beheved that overtime work was required, she would get authorization from Center Manager Paul Unkle and then direct the employees to work overtime. Veguilla testified that Benitez adjusts and excuses minor lateness on timecards; that, along with higher management officials, she engages in disciplinary interviews with employees over whom her supervisor exists; and that Benitez' job functions, including her su- pervision of SOC, did not change after the name of the department was changed contemporaneously with the 1980 installation of computers. 12 Unkle did not testify nor was any other witness called who was present at supervisor meetings to contradict Vegmlla on this point Similar to Ayala's uncontradicted testimony, Veguilla testified (Tr. 28 August 1984, pp. 106-107) that in the period after March 1982 (about 1 year before he was ter- minated), Supervisor Lucy Cotto, for a month, was on sick leave from supervising the switchboard department, during which period Benitez was the supervisor of both SOC and the switchboard department. Finally, the employer called Annette Guadalupe, pres- ently employed as a general clerk for 2 years in SOC. She testified, supporting Benitez and Hernandez, that Su- pervisor Diaz made out the work schedules. And she further testified that, in his absence, the employees them- selves scheduled their work. In the absence of Diaz, the work schedules originated by employees would be ap- proved by the Assistant Center Manager (Marrero). She stated that Diaz excused absences for illness or no one did—merely a message left with one of the employees. Similarly, no one was asked to authorize employees to leave their work places. If an employee left the building, the employee received a pass from the secretary in the center manager's office. Guadalupe denied that Benitez had any of these powers over SOC employees and denied that Benitez ever substituted for Lucy Cotto in the switchboard department or disciplined employees. Benitez, according to Guadalupe, was consulted on work problems due to her long experience. Similarly, supervi- sors authorized overtime work, not Benitez. Guadalupe testified that she was not opposed to employees being represented by the Union. B. Discussion and Conclusions; Benitez' Supervisory Status The regular exercise, with independent judgment, of any one of the powers defined in Section 2(11) of the Act 13 by a person in the service of an employer, confers the mantle of "supervisor" over the person exercising that power, thus often binding the employer to unauthor- ized and unlawful acts. See NLRB v. Dillon Stores, 643 F.2d 687 (10th Cir. 1981); NLRB v. McEver Engineering, 784 F.2d 634 (5th Cir. 1986). In addition, the statute provides, in Section 2(13), that: In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be con- trolling. The facts, based on uncontradicted and credited testi- mony, are that Benitez, employed for 18 years, was an admitted supervisor for 8 years ending May 1980. The Employer failed to thereafter announce that Benitez was 13 Sec 2(11) of the Act (11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off recall, promote, discharge, assign, reward, or discipline other em- ployees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. SEARS ROEBUCK DE PUERTO RICO 269 no longer a supervisor." Consistent with this failure to announce that Benitez was no longer a supervisor, she attended supervisor meetings and employee disciplinary meetings, as late as early 1983, a time long after, accord- ing to the Employer, she ceased being a supervisor; and as late as August and September 1983, at the time of the 16 September second election, she openly and consistent- ly—alone among the six or more employees in SOC—so- licited employer customers as "Service Supervisor" (in the central service department). On the appointment of Santiago (to replace the ailing Diaz) as supervisor in the parts department and in SOC, in the spring of 1984, Ben- itez told employees that she was no longer supervisor in the SOC. Lastly, if Benitez was not a supervisor during Diaz' regular and frequent absences, and after his being placed on medical leave, there was no supervisor at all in SOC. In addition, on contradicted evidence, I nevertheless find that in the period 1983 to the early spring of 1984, between the onset of serious illness and departure of Su- pervisor Diaz and the appointment of Santiago, Benitez regularly assigned the work in SOC, from time to time excused absences, adjusted timecards, as to minor laten- esses, referred SOC employees to the unit manager for resolution of major problems, directed the employees to work overtime (after receiving authorization from higher authority), and acted as a supervisor both in the pres- ence, and later in the absence, of Diaz, thereafter acting as the sole supervisor in SOC in 1983 and 1984 while training Santiago. It also appears that Parts Department Supervisor Diaz (and thereafter, Santiago) maintained no office in SOC and merely visited several times per day from the parts department. Furthermore, I find that, on a regular basis, on alternate Saturdays, vacations, and other absences by Supervisor Lucy Cotto, Benitez not only supervised the employees of SOC, but also supervised the 15 or more employees in the adjacent switchboard department (where she had been originally trained). In resolving the conflicting testimony relating to the above facts, I was confronted on the one hand by Ayalia, a forthright and otherwise facially believable wit- ness, presently employed by the Employer, whose credi- bility was necessarily evaluated through the prism of her obvious devotion to the Union; by the testimony of ex- supervisor Veguilla, whose termination in March 1983 resulted in his private lawsuit against the Employer for unlawful discharge (which was not resolved when Ve- guilla was testifying), thus giving rise to an inference of bias steming from malice; and, on the other hand," the testimony of Benitez, which suffers from self-interest, and whose feigned neutrality was incredible; the testimo- ny of Hawkins who was not a witness to the actual daily functioning of the various departments; of Evelyn Silva Hernandez (in the switchboard department), who, though admitting that she knew nothing of Benitez' func- 14 Thus, that the Employer, in 1983, was no longer evaluating Benitez as a supervisor, on this record, was unknown to the employees 15 I do not credit the testimony of Supervisor Morales or Donis except insofar as such testimony constitutes admissions against the Employer's interest, Where they were not directly untruthful, I found their testimony to be evasive and unreliable. tions in SOC, testified with assurance and apparent candor regarding Benitez' lack of supervisory functions in the switchboard department; and of Annette Guada- lupe, a general clerk in SOC, whose testimony supported Benitez and Hernandez regarding Benitez' lack of super- visory function. As noted above, the Employer failed to call various supervisors to deny Benitez' attendance at supervisor meetings when she was allegedly no longer a supervisor and to prove that they supervised SOC. Nor did the Employer produce requested documents to show that other SOC employees used the title "supervisor." My observation of the demeanor of Hernandez and Guadalupe and the vigor of some of their testimony indi- cated that, contrary to their testimony, they were not fa- vorably disposed to the Union. Benitez' testimony that she was not necessarily against the Union, in conjunction with her having volunteered to be the Employer's ob- server, struck me as extraordinary, given her 18 years of employment and the Employer's repeated written expres- sions of gratitude acknowledging Benitez' "loyal" devo- tion in twice acting as its election observer. Ultimately, I was left with witnesses on both sides whose testimony regarding Benitez' functions were rea- sonable but, under the circumstances, not susceptible of being characterized as merely mistaken. On the other hand, however, there was considerable uncontradicted evidence and testimony, certainly sufficient to make sev- eral substantive findings and, more significant, to grant insight for purpose of credibility resolutions. It is mainly on this uncontradicted evidence that I relied in resolving the testimonial contradictions: (a) there is no dispute that the Respondent failed to announce, at any time, that Benitez, for 7 years a supervisor, was no longer a super- visor; (b) there is no denial that in 1983-1984, in the period during Parts Department Supervisor Diaz' inter- mittent presence and following his departure, and Super- visor Santiago's assumption of supervisory status, there was no regular SOC supervision; Benitez trained San- tiago to take over Diaz' duties, after which she an- nounced that she was no longer a supervisor; (c) it is of little consequence that Benitez had no office in SOC and works directly among SOC employees since Lucy Cotto, an admitted supervisor of the switchboard department, also works directly with and among the department em- ployees and has no office; (d) because with no hesitation, Benitez testified that she and other SOC employees regu- larly sign their names, in letters to customer, as "Service Supervisor," and in view of the matter being placed di- rectly in issue (Le., whether other SOC employees sign letters as "Service Supervisor"), the Employer neverthe- less failed to produce, though expressly requested, to do so, any letters signed by SOC employees as "Service Su- pervisor"; in addition, (e) although former Supervisor Victor Veguilla's testimony was entertained with skepti- cism as that of a possible disgruntled ex-supervisor, his undenied and now credited testimony was that as late as early 1983 (i.e., well after May 1980, when Benitez was allegedly no longer a supervisor), she attended supervi- sors' meetings concerning discipline of employees under Center Manager Paul Unkle's control; and (f) there was Veguilla's testimony denied by Guadalupe and Benitez 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (undenied particularly by the absence as a witness of Su- pervisor Lucy Cotto) that Benitez and Cotto, in the ab- sence of the other, acted as supervisors in the switch- board department and SOC in assigning overtime to switchboard employees, adjusting employee timecards, and establishing time schedules of eployees. In this latter matter, I do not credit Benitez', Hernandez', and Guada- lupe's contrary testimony. I conclude from the above evidence, including the ab- sence of the regular exercise by others of daily SOC su- pervisory authority, and Benitez being the sole supervi- sor in Diaz' absence, that Ana Benitez, with independent judgment, exercised a number of powers enumerated in Section 2(11) of the Act in the period surrounding the second election and thus regularly discharged the duties of a supervisor, and was the Employer's statutory super- visor in and about September 1983. The facts, above, fur- thermore demonstrate that switchboard department and SOC employees had justifiable cause to believe that Ben- itez was acting for and on behalf of the Employer when she performed the acts appearing in the above text, whether or not Benitez was a "supervisor." Betts Baking Co. v. NLRB, 380 F.2d 199 (10th Cir. 1967). Moreover, regardless of whether she was a supervisor, she was at all material times clothed by the Employer, by attending supervisor meetings, openly using the title "Supervisor," and otherwise, with the trappings of the Employer's su- pervisor. Thus, I also conclude that, if not a supervisor, she was the Employer's "agent" in September 1983 within the meaning of Section 2(13) of the Act. Medical Center Convalescent Hospital, 247 NLRB 586 fn. 5 (1980). To hold that the parts department supervisors, Diaz, and later, Santiago, were the sole SOC supervisors, or that other persons were SOC supervisors, is contrary to the facts and would leave the SOC employees without daily, regular supervision. NLRB v. Dillon Stores, supra, espe- cially during Diaz' 1983 illness, his extended absences, both intermittent and final, and the period when, on un- contradicted evidence, Benitez trained his successor." 16 I therefore accept and credit Ayala's particularized credible testimo- ny (Tr. 14 August, pp 292-298) that Ana Benitez made out work sched- ules for SOC employees, authorized overtime (after receiving permis- sion), excused lateness, granted time off for sickness, adjusted timecards, and issued the daily work instructions to SOC employees This was in September 1983 (Tr. 14 August, p. 286) There is no dispute that Supervi- sor Santiago did not appear on the scene until the spring of 1984 and Matteo Diaz had been regularly absent for long periods for almost 2 years. Thus, there was no regular, daily supervisor except Benitez (Ti. 14 August, pp 289-290). Diaz was apparently too ill to testify; Santiago's failure to testify was unexplained In accepting Ayala's testimony, I also credit Veguilla both to the extent coroborated. by Ayala and to the extent his testimony was not controverted. As noted hereafter in the text, I found the testimony of Evelyn Silva Hernandez to be forthright and con- vincing on the supervisory issue concerning Benitez in the switchboard department In view of the above findings, however, I reluctantly do not credit Hernandez Guadalupe did not impress me due to her obvious dedication to the Employer's position I have chosen to credit Ayala, notwithstandmg her dedication to the Union, over Hernandez, where the testimony is contradictory even on the question of Benitez' supervisory status, because of underned testimony of Ayala and Veguilla on Benitez' activities and functions, and because surrounding circumstances have caused me to conclude that Hernandez' testimony did not disclose the extent of Benitez' authority. I was especially impressed by the Employ- er's failure to call Supervisor Unkle to deny Benitez' attendance at super- visors' meetings in 1982 and 1983 (long after the May 1980 date when she allegedly ceased being a supervisor) relating to disciplining employees, In its memorandum of law, the Employer cites, inter alia, various cases in which the Board and court draw conclusions of nonsupervisory status, e.g., George C. Foss Co. v. NLRB, 752 F.2d 1407 (9th Cir. 1985). Whatever else can be said of cases of supervisory or ageny status, it is clear that each must ordinarily be decided on its own facts; the variations are almost infinite. Here, for in- stance, there is little support for the Employer to rely on cases involving leadman in the contruction industry. Similarly, here, none of these admitted department super- visors, like Lucy Cotto, had the power to hire, fire, sus- pend, lay off, recall, promote, grant wages increases, or effectively recommend some. Those powers, in this case, all reside in the Employer's personnel department. Thus, aside from the power to schedule working hours, which Benitez possessed, the citation of NLRB v. First Union Management, 777 F.2d 330 (6th Cir. 1985), in which the "chief engineers" had none of these powers, is not only distinguishable but, broadly, not analogous. Benitez' Alleged Objectionable Conduct As the employer's agent, through supervisory status or otherwise, Ana Benitez, according to union witness Mar- ilyn Ayala, in September 1983, came into the switch- board department (Tr. 15 August, pp. 347-348; Tr. 14 August, p. 300) about 4 p.m., 2 weeks before the elec- tion. She often acted as switchboard department supervi- sor. Working at the switchboard, taking phone calls, were three named employees (Rosa, Sanchez, and Silver, i.e., Hernandez) and three whose names Ayala did not remember. The employees were speaking of the ap- proaching election when Ana Benitez walked in. Benitez asked one of the employees (Maria Rosa) if she had any doubts that Benitez could clarify and then told her that it would not cost Sears anything to give the service depart- ment work to a subcontractor, and leave Puerto Rico (Tr. 14 August, p. 301..)" Benitez also allegedly asked the employees why pay [dues to] the Union if Sears was a good employer. She also recalled that at this time two promotions department employees (Catillo and de Juan) discussed a union leaflet that had mentioned a former su- pervisor (Tr. 14 August, pp. 302-303). Ana Benitez testified that she participated in a conver- sation in the switchboard department with employees (Rosa, Silver-Hernandez, Sanchez, and Ayala) in Sep- the failure to call Supervisor Cotto to deny Benitez' regular substitution on Saturdays, vacations, and holidays as switchboard supervisor (while continuing as SOC supervisor) and the failure to deny that not only was Benitez, alone, supervismg SOC (and the switchboard department) during protracted absences due to illness, but that Benitez trained Santiago as a supervisor in SOC in 1984. Thus, the Employer's failure to advise em- ployees that Benitez was no longer a supervisor takes on added signifi- cance in light of the above undemed evidence '7 The Employer asserts (memorandum of law, p 7) that Benitez' statement is "ambiguous on its face and is subject to a broad range of Interpretations," but the Employer fails to suggest meanings other than a threat to give the work to another employer and then leave Puerto Rico. This is a clear threat to the employees' jobs. But assuming, arguendo, that there is some ambiguity lurking in the statement, the Employer is liable for the double entendre because the employees being addressed are neither law professors nor grammarians. The statement constitutes an ob- vious, objectionable threat Pacific Telephone Co., 256 NLRB 449 (1981), citing Turner Shoe Co. 249 NLRB 144, 146 (1980), and cases cited there- in. SEARS ROEBUCK DE PUERTO RICO 271 tember 1983, before the election. She did not state, and was not asked, at what time of day the conversation oc- curred, but she recalled that the discussion related to medical plans in general, the employer's plan in particu- lar, that the word "union" was not mentioned and that nothing was said in that conversation regarding the Em- ployer leaving Puerto Rico (Tr. 28 August, pp. 159-163). Evelyn Silva Hernandez, whom I found as previously noted to be an impressive witness, recalled a conversa- tion at the switchboard as did Ayala, on Friday, 2 Sep- tember 1983 (thus, 2 weeks before the 16 September election and within the proscribed period), involving Benitez, Rosa, Ayala, and herself, but, contrary to Ayala, supporting Benitez, testified that the word "union" was not mentioned; that the subject was medical plans—thus again corroborating Benitez—but she made no denial or even mention of the participation of two promotions de- partment employees; and she placed the conversation as occurring at the switchboard, as she and the other women were returning from their lunch (Tr. 29 August, pp. 256-257). She admitted working the phones during the conversation, but asserts she paid full attention to what was being said (placing phone calls on "hold" during the conversation). Ayala, on 2 September, told Union President Juan Maldonado of the alleged Benitez statement (Tr. 15 August, p. 342), and about the same time, she also told Union activist, employee Pedro Orona. Orona, the next day, sought out Supervisor Ray Hawkins, asked him if Benitez' statement was the Employer's position, told him that the employees were "nervous" about the closing of the Sears operation (Tr. 28 August, p. 241), and asked for, and was refused, an employer-sponsored employee meeting to "clarify" the employer's position on the Beni- tez statement. Hawkins is a Chicago-based supervisor re- sponsible for representing management in labor relations and is opposed to the Union representing the Employer's employees (Tr. 29 August, p. 210). On the basis of AyaIa's report of the Benitez state- ment, the Union, through President Maldonado, caused to be printed and disseminated, on 9 and 13 September, two leaflets (R. Exh. 9 read into the record, Tr. 28 August, p. 50) citing Benitez' alleged 2 September state- ment regarding Sears' closing down, inviting an employ- er response, and noting the distribution of the leaflet. Last, there is no dispute that Benitez came to Hawkins and denied making the statement being circulated in the handbill (Tr. 29 August, p. 225); that Hawkins accepted the denial at face value (Tr. 29 August, p. 230), and did not inquire of other employees whether the statement was made. When, as above noted, employee Orona later asked him for the Employer's position and an employee meeting, Hawkins told him that Sears had no intention of closing down, that it was just another crazy rumor, and that there would be no meeting. D. Discussion and Conclusions; Benitez' Statement Ayala's version of the Benitez conversation does not mention medical plans, but asserts that Benitez men- tioned the Union and the Employer closing down; that the conversation occurred at 4 p.m.; and that two named promotions department employees appeared and spoke of conflicting union statements concerning former Supervi- sor Veguilla. Benitez denied making statements about the Union or Sears closing down; and she and Evelyn Silva Hernan- dez, present at the switchboard, testified that they dis- cussed the virtues of competing medical plans and never mentioned the Union. Hernandez placed the conversa- tion as occurring on the employees' returning from lunch. Nothing in Hernandez' or Benitez' testimony men- tions the promotions department employees. The above obvious distinctions raised by current em- ployees, Ayala and Silva-Hernandez (Benitez' testimony is suspect), concerning the time, subject matter, and the presence (or absence) of the promotions department em- ployees at the conversations to which they testified, lead me to conclude, as I do, that there was more than one conversation. While Hernandez identifies Ayala as being present at the "medical plan" conversation and Ayala identified Hernandez as being present at the "Sears clos- ing-down" conversation, I ascribe such inconsistent iden- tification to the same source: two conversations. Further supporting the conclusion that there was more than one conversation, the record shows, for instance that em- ployees from the promotions, switchboard, and SOC de- partments (all three mutually interdependent) were in each other's work spaces on at least several occasions during the day. Even if one grants, arguendo, that Silva- Hernandez, admittedly receiving phone calls during the conversation she described could, and did, give her full attention to every phrase in her conversation, the same employees nevertheless appear to have been present at two distant conversations. The subject matter, time, and appearance of other employees are substantially incon- sistent in the Ayala-Hernandez renditions and this leads me to credit Ayala without necessarily discrediting Her- nandez. I would discredit Benitez to the extent her testi- mony conflicts with Ayala's. I do this particularly on the grounds that (a) uncontradicted evidence contradicts her testimony concerning her supervisory functions, and (b) her testimony was unnecessarily evasive on whether she opposed the Union. Her lack of credibility is under- scored by her testimony that, as a volunteer observer for the Employer in the second election, she merely liked acting as an observer rather than helping the Employer against the Union (Tr. 28 August, pp. 193, et seq.). The Employer had requested her to act as its observer in the first election, said it expected her presence as observer to have an impact favorable to the Employer and against the Union, and wrote her letters of appreciation for her acting as its legal observer in both elections (Tr. 190, et seq.; Tr. 29 August, pp. 217, et seq.). This is not a case where an employee acts as observer merely because she is asked. See Lemon-Drop Inn, 269 NLRB 1007, 1008, fn. 1 (1984) (Chairman Dotson dissenting). In view of this evidence suggesting almost boundless loyalty to the Em- ployer, I conclude that her reticence to admit, and her denial of, corresponding, perhaps reasonable antiunion feelings unnecessary masked a bias that made her overall testimony untrustworthy. It must be noted that Ayala, openly prounion, presently employed, was testifying in the presence of, and directly against, her hostile employ- 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er, Georgia Rug Mill, 131 NLRB 1304, 1305 (1961). This circumstance adds some weight to not discrediting Ayala. In sum, I conclude that as supervisor or agent, Benitez in a conversation with several employees, about 4 p.m. on 2 September 1983, stated, in substance, as it appears in Objection 4(A), that if the Union were successful, Sears would subcontract the work of the service department, close down, and leave Puerto Rico. This statement became the subject matter of union leaflets distributed to employees about 9 and 13 September. The Employer, before the election of 16 September, on learning of Beni- tez' denial, neither further investigated the matter (to de- termine from employees the truthfulness of the denial) nor sought by repudiation, to avoid responsibility for the remark whether or not it was uttered. Hawkins' discus- sion with Pedro Orona, refusing an employee meeting, and describing the event as a "crazy rumor" are not the equivalent of open repudiation required by Board rules. Passavant Memorial Hospital, 237 NLRB 138 (1978). It would appear that Benitez' statement was made di- rectly to about five other employees and then widely cir- culated by the Union and never repudiated by the Em- ployer. The Employer's determination that Benitez did not make the statement did not relieve it of responsibil- ity. I have found that the statement was made and that the Employer made no effort to inform its employees that Benitez' statement, widely disseminated by the Union, did not represent its policy. See Betts Baking Co. v. NLRB, 380 F.2d 199 (10th Cir. 1967), and cases cited. On the above facts and conclusions, relating to Objection 4(A), whether that objection is viewed in isolation or in conjunction with other objectionable conduct found herein. I further recommend that the second election be set aside and a third elecion held. Cf. Clark Equipment Co., 278 NLRB 498 (1986). With regard to the other objections on which the Re- gional Director's second supplemental decision ordered a hearing, I conclude that either the consolidated record has no evidence or insufficient evidence to establish the necessary preponderance for the support thereof. With particular regard to Objection 6, I was unable to find that the Union submitted such preponderant, credible evicence that would lead me to credit Maldonado's testi- mony over Hawkins' denials, thereby establishing that the Union timely asked for the replacement of Benitez as the Employer's observer in the 16 September election. It is recommended that these objections be overruled. In view of the above supplemental findings and con- clusions, there is no reason to depart from my recom- mended Order of 10 October 1984, which is repeated and incorporated.