Progress Industries

694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Progress Industries and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America. Cases 18-CA-9700 and 18-RC-13951 10 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 23 June 1987 Administrative Law Judge Robert G. Romano issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Progress In- dustries, Newton, Iowa, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. i The Respondent does not except to any of the judge's findings and conclusions, only to the recommendation that the marketing and sales co- ordinator classification be excluded from the unit, though earlier includ- ed, and that the Union be certified in the event that a revised tally of ballots in Case 18-RC-13951 reveals that a majority of ballots have been cast for the Union We find no merit in the Respondent's exceptions Robert V Johnson, Esq., for the General Counsel. Albert L. Harvey, Esq. (Davis, Grace, Harvey, Horvath, Gonnerman & Rowenhorst), of Des Moines, Iowa, for the Respondent Employer Polly Connelly, Esq., of Chicago, Illinois, and Mr. David Neil, International Representative, of Waterloo, Iowa, for the Charging Party Petitioner. DECISION STATEMENT OF THE CASE ROBERT G. ROMANO, Administrative Law Judge I heard these consolidated cases in Des Moines, Iowa, on 29-31 October and 24-26 November 1986.' International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, the Charging Party) filed the original charge in Case 18-CA-9700 on 12 June (amended 24 July) against Progress Industries (PI, Respondent Employer). Complaint issued on 30 July ' All dates are in 1986 unless otherwise stated alleging that Respondent Employer has committed multi- ple violations of Section 8(a)(1) of the Act on certain days in the months April through June On 2 May UAW (the Petitioner) filed a petition in Case 18-RC-13951 On 5 June the Board's Regional Di- rector for Region 18 issued a Decision and Direction of Election (DDE) determining an appropriate unit for the conduct of an election, but which, on the basis of insuffi- cient evidence appearing on record, left undetermined the status of Public Relations Coordinator Betty Wilcox and Development Coordinator Joan Tyler, and directed that Wilcox and Tyler be allowed to cast challenged bal- lots. On 12 June, the Petitioner filed a Request for Review of the Regional Director's inclusion of Market- ing and Sales Coordinator Bill Lien, and for a review of certain exclusions. The Board subsequently amended the DDE to permit Lien (thus, along with Wilcox and Tyler) to vote under the challenge, but otherwise denied the Petitioner's requested review of the other unit exclu- sions. On 17 July an election was conducted in the deter- mined appropriate unit. The tally of ballots shows that of approximately 56 eligible voters, 25 have cast votes for, and 21 have cast votes against, the Petitioner. There were seven challenged ballots, which are in number suf- ficient to affect the results of the election In addition to Lien, Wilcox, and Tyler, who cast ballots challenged by the Board agent, three individuals (Kristi Beeler, Rory Larsen, and Evelyn Sherod) were challenged by the Pe- titioner and one (Winifred Barwegen) by the Employer. On 23 July, UAW Petitioner filed 12 objections to the election. On 4 August, UAW Petitioner requested with- drawal of six objections, which was approved by the Re- gional Director in a Supplemental Decision and Order, order directing hearing (on the remaining six objections and seven determinative challenge ballots), order consoli- dating cases, etc., dated 6 August. On the entire record and my observation of the de- meanor of the witnesses, and after careful consideration of the briefs filed by the General Counsel on 30 Decem- ber, and the Charging Party and Respondent Employer, timely, on 13 January 1987,2 I make the following FINDINGS OF FACT I JURISDICTION The complaint alleges, and Respondent Employer by answer admits Respondent is an Iowa corporation with an office and place of business in Newton, Iowa, where it is engaged in the operation of a sheltered workshop and otherwise provides comprehensive programs in serv- ice to and care of handicapped individuals. During a 12- month period ending 31 December 1985, Respondent de- rived gross revenues in excess of $1,700,000 of which in excess of $50,000 was derived from the Federal Govern- 2 The General Counsel's brief addresses complaint allegations only, The Charging Party's brief addresses the issues on the challenge ballots (only) with general confirmatory observation that the Petitioner's objec- tions are essentially encompassed in the complaint's allegations The Em- ployer's brief fully addresses complaint allegations, the Petitioner's objec- tions, and the issues of the determinative challenges 285 NLRB No. 99 PROGRESS INDUSTRIES ment, and,, in the same period, Respondent provided services valued in excess of $50,000 to enterprises located within the State of Iowa, each of which annually pur- chases and receives at its Iowa facilities goods and mate- rials valued in excess of $50,000 directly from points lo- cated outside the State of Iowa, or sells and ships goods and materials outside the State of Iowa. The complaint alleges, Respondent admits, and I find that Progress In- dustries is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and UAW is a labor organization within the meaning of See- tion 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The origins of Progress Industries and P.I. Foundation There are two nonprofit Iowa corporations whose ac- tivities and purposes are interrelated. Progress Industries (PI), the corporation named in the complaint, is essential- ly the operations corporation. In contrast, PI Foundation (PIF) holds title to all the developed major assets, e.g., to . workshop and shelter buildings, residential group homes and apartments, vehicles, etc., that PI operates in its provision of various services to handicapped individ- uals. PI actually operates on a fiscal year basis 1 July to 30 June; and currently has a $2 million budget. PI gener- ates a certain amount of its operational moneys from fees charged, and from payments made to PI for production performances under certain work contracts that PI solic- its and obtains through sales negotiations conducted with private businesses/individuals who have available suita- ble labor intensive work and who have an interest in aiding the handicapped in that manner. PIF, however, is the corporate entity to which all the more basic and sup- portive Federal, state, local and private fundings, grants, or bequests are directed; and PIF, in turn, then adminis- ters the funds and assets, in an accountable manner, and in the best interest of attaining the mutual goals of PIF and PI in their primary service to the handicapped . Cer- tain funding is made available for certain services provid- ed to the elderly (e.g., transportation). To accomplish their related but separate ends, PIF and PI each has its own board of trustees which are composed in the main of volunteer local businesses and other community lead- ers. Robert J. Mather is currently employed as president of P1. Mather is the day-to-day chief executive and/or operational officer of PI; and Mather reports directly to PI's board of trustees. From the time of the initial char- ter, Mather has also apparently served as 1 of 13 trustees recruited to serve on the board of trustees of PIF. In any event, Mather (and certain other individuals) periodically report on PI operations to both boards of trustees. PI also has periodic assistances of certain trustee commit- tees. Trustees of both boards are assigned to serve on certain committees that have provided specialized busi- ness expertise and other guidance to PI, e.g., in produc- tion, funding, and public relations. This is in addition to 695 the trustees' governing activities on the respective boards. Mather has apparently been the president of PI since its incorporation on 23 January 1979. Mather wrote PI's charter and bylaws -following his hire on 1 December 1978 by an Association of Retarded Citizens Group (ARC), which even at that time-was apparently running a day program at a county home, with the aid of an en- dowment from a will of a deceased president of a major corporation that has its central facilities located in Newton, Iowa.3 Mather has considerable education and work experi- ence in the rehabilitation field. Mather owns a bachelor's degree in industrial arts education from Kent State Uni- versity (KSU). After initially pursuing an advanced degree in school administration, Mather redirected full time to obtain a masters degree in rehabilitation counsel- ing from KSU. Mather has various and substantial relat- ed work experiences. Prior to earning his masters degree, Mather had worked as a manual arts therapist with neuropsychiatric disabled vets in a V.A. Hospital. Subse- quently, Mather obtained additional and varied work ex- perience at a large rehabilitation facility located in Cleveland, Ohio, progressively: as a work adjustment specialist (training a handicapped individual's work skills, habits, and attitudes in a shop floor environment) for 6 months; as an educational director on a 2-year grant (in- volving'the training of others as supervisors in the devel- opment of handicapped work skills, in administration of a ,rehabilitation program, and in the retraining of people from all over the world in these areas); and with 8 years' subsequent service there as the associate executive direc- tor of a staff of 160 (composed of occupational and phys- ical therapists, counselors, production workers, etc.) servicing some 5Q00 handicapped in that large facility. After a number of interviews by ARC, Mather was hired to develop a comprehensive rehabilitative program to be established in the Midwest, at Newton, Iowa. The declared mission and/or goals for the agency (PI) were to provide a varying and comprehensive range of serv- ices to help handicapped individuals achieve an inde- pendence and increased productivity in the least restric- tive environment for them that is age appropriate and to which they can move with dignity. Mather's commis- sion/plan for the rehabilitation program was essentially to encompass provisions for comprehensive services to the handicapped, which would include not only a work- shop for development of some work training opportuni- ties for handicapped individuals in Newton, Iowa, but also would include a plan for development of some resi- dential services within the city of Newton itself, rather than as was at the time seemingly isolated in the county. The plan made provision for the development and in- tegration of the successfully trained handicapped into the 3 The endowment was from the will of a deceased president of the Maytag Corporation Officials and/or management of the Maytag Corpo- ration in Newton, inter aha , have in the past, and presently do, serve as trustees of PI Employees employed by the Maytag corporation in Newton are themselves represented by UAW Local 997 Max Tipton, an individual who was a former president of UAW Local 997 and subse- quently an International representative of the UAW, had also served as a trustee of PI, though Tipton had resigned prior to the time material 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD community of the city of Newton, and of transport of handicapped to job and residence This aspect, however, is itself to be distinguished from PI's overall rehabilita- tive services presently made available to the handicapped in a broader area from support of present Federal, state, and local (Jasper County) public funding. PI presently services not only handicapped in Jasper County, but also some of the handicapped in surrounding counties (PI's long-range plan envisions further growth application in surrounding counties, with PI's public relation funding efforts in the future to be extended in those locales ) The record refers to PI serviced handicapped individ- uals as clients, as will this decision hereafter. In general, PI currently provides a broad range of services to cli- ents The process involves first, an ongoing mechanism (essentially founded in public relations) for making known to the public, and for effectuating an acceptance and support on the part of the public of the services that PI is able to provide clients, and second, an identification of prospective clients in the community that can benefit from the services that PI is presently able to make avail- able The latter service provision involves an indentifica- tion and (seemingly) a pragmatic evaluation of the pano- ply of clients' needs, as they are disclosed from parents, state and local governmental agencies (e.g , Department of Human Services (DHS) and vocational rehabilitative agencies), doctors and physicians, and schools. PI currently operates sheltered workshops at its main facility, where it also maintains its principal offices. Re- habilitative work activity is performed there for DHS. Labor intensive work is also performed there for private concerns under contract with PI At the main facility, in addition to administrative offices, there is a large confer- ence room, a break area used by clients, and a subarea used by staff There is also a smaller conference room for meetings. Management and staff utilize common rest- rooms PI also provides living arrangements for 8 clients in each of 3 separate group homes and for 12 in one 12-unit apartment complex These residential buildings circu- mambient the main facility at some distance, but within the city of Newton Essentially described are two basic operational programs of rehabilitation, one vocationally oriented and one residentially oriented It is to be under- stood that not all accepted clients are able to advance successfully all the way to the desired and end goals of self-sufficient work and residence in the Newton commu- nity itself. Some do, and many are otherwise benefited in varying degree Managers and employees alike involved here are all strongly motivated individuals and, in the clear main, are dedicated in their occupational service provided to cli- ents Credibility determinations have been frequently ren- dered thereby only the more difficult Wherever appro- priate, in resolving conflicting recollections, I have relied heavily on inherent probabilities arising from more read- ily discernible facts Occasions of clear conflict are re- solved with special view to internal and external consist- ency, and to weight of corroborative evidence. 2. PI management in material times a. Statutory supervisors and agents President Robert Mather, Vice President Dale Sherod, Home Services Manager David McClurg, and Group Home Managers Rory Hill and Danny Beeler are al- leged, conceded to be, and I find are statutory supervi- sors and agents of Respondent. The complaint alleges that they (and no others) have engaged in the conduct that is alleged to be violative of Section 8(a)(1) of the Act Respondent defends none of the above have com- mitted unfair labor practices John Bartello is PI's production manager (at PI's main facility). Bartello is similarly an alleged, conceded (and I find) statutory supervisor and agent of P1. In more mate- rial time, PI employed Dave Westin as apartment manag- er until Westin resigned in April 1986 PI hired Elroy Van der Ley initially to replace Westin Van der Ley is currently (overall) residential manager Westin and Van der Ley similarly occupied positions of a statutory super- visor, though Westin at time of giving testimony as the General Counsel's witness at hearing, was no longer em- ployed by P1. Transportation Manager June Anderson is a statutory supervisor. The remaining group home man- ager is Rick Huffman, also a statutory supervisor. The complaint does not allege that Bartello, Van der Ley, Huffman, or Anderson has engaged in any conduct vio- lative of the Act, and only Anderson has testified in this proceeding. b Conceded managers' education, training, and assignment PI has employed Dale Sherod as its vice president, now for a little over a year PI initially hired Sherod in July 1983 as residential manager, in which position Sherod served until July 1985, at which time he became vice president. Sherod's current duties as vice president essentially are in overall operational supervision of the day-to-day programs conducted at PI's facilities Sherod has 2 years of college, and completed a rehabilita- tion/administration course(s) from the University of San Francisco Sherod attended a Salvation Army seminary in Chicago for 2 years, and he thereafter served as a pastor in the Salvation Army for 15 years Sherod also progressed, over a period of 7 years, from a group home parent to residential director of a group home operated at Hope Haven, Rock Valley, Iowa, before his employ- ment began with PI PI employed David McClurg as its human services manager on 19 August 1985. At that time McClurg man- aged both PI's vocational program, and its residential program for clients, under Sherod. In general, the resi- dential program is one of progress from group home living to apartment living. In material times PI's residen- tial program under McClurg included a Follow Along Program (FAP) which had been commenced by PI the prior month, and which continued as McClurg's overall responsibility until the (basic) FAP program reverted back to (Jasper County) Department of Human Services (DHS) effective 1 July at DHS direction, and with very limited FAP employment continued thereafter at PI PROGRESS INDUSTRIES under private pay circumstances to be additionally ad- dressed infra. The purpose of PI's FAP program was to provide a staff person to go out into the community and follow up on clients who were then living in their own apartments in the community. The program is designed to periodi- cally help clients, in that less-supervised environment: to manage their money; ensure by remindance and direction that they take care of (houseclean) their apartment; and assistant in specialized areas, e.g., in grocery shopping, etc., all to enable the client to continue to live more in- dependently. Essentially under the FAP program P1 pro- vided someone to come out once, twice, or three times a week to help clients in that environment, with some aid provided in their own individualized specific areas of continued needs. In general, but not exclusively, FAP was a followup on clients who had successfully ad- vanced enough through rehabilitative training, and pro- gressively, from the more supervised group home living to less supervised apartment living, and then from PI su- pervised apartment living to PI FAP-supported apart- ment living while on their own in the community. (1) Residential managers excluded from the unit In managing the residential (and FAP) program, McClurg thus essentially supervised the managers of the three group homes (Progress East, West, and North), and the manager of the one (PI) apartment building (Progress South). Managers of these group homes/- apartment buildings have from time to time changed and/or transferred. Except where shown to the contrary and (seemingly) serviceable for consideration (at least) in most of the times deemed material here, Rory Hill was the manager of group home Progress East, Danny L. Beeler of Progress West, and Rick Huffman of Progress North. Westin was the manager of Progress South (the PI apartment complex) until Westin resigned in April. In May PI employed Elroy Van der Ley, initially as Progress South manager, and apparently 3 weeks later (in June) as residential manager, placed in overall charge of the residential program. From that point McClurg has had no further responsi- bilities over the residential program, except, as noted, McClurg had retained responsibility for the FAP client's program through 30 June and supervision of limited re- mainder thereafter. McClurg testified in that regard that some time in June, the DHS notified PI that DHS was going to readminister FAP (effective. 1 July) because they felt they could do it with the least expense to the taxpayers. Prior to 1 July, PI has employed one lead trainer (Mike Stech) and a trainer (Kristi Beeler) in PI's administration of the FAP program After 1 July Jasper County DHS employed Stech and Beeler in FAP as ad- ministered by the county. As is to be discussed further infra, in connection with the UAW-challenged ballot of Krisl.i Beeler, FAP service has not been wholly eliminat- ed at PI. What remains is performed by Kristi Beeler. Human Services Manager McClurg's responsibilities otherwise included, and are now essentially limited to, vocational management McClurg's formal education is a bachelor's degree in psychology and a master's degree in counseling obtained from the University of Iowa at Iowa 697 City. Before employment at PI, McClurg had obtained continued work experience in the field viz, 2-1/2 years with the Iowa department of social services, and 7 years of service as a rehabilitation manager at mid-Iowa work- shops, a sheltered workshop located 50 miles northeast of Des Moines. It is observed in passing that Mather, McClurg, and Van der Ley each have a master's degree. (2) Vocational programs McClurg's current duties are to manage the people working in PI's vocational programs. The vocation pro- grams include work activities, which service approxi- mately 25 clients. McClurg more broadly manages case managers or counselors, persons who provide vocational counseling, instructors. Currently reporting to him are five case managers; one work therapy specialist (who works with, people who are mentally ill, in work ther- apy, or cope areas); and one employment specialist, who (along with three other employees who work in conjunc- tion with the employment specialist) basically works in placement of clients in jobs in the community. In times more material to the election (17 July) Mather has clari- fied that PI had at that time employed but four case managers. Mather described the position of a case man- ager as being, in layman's language, an individual hired to develop and implement ' an Individual Program Plan (IPP) that will be used in the rehabilitation of clients. (3) Case managers included in the unit The highest salaried of the four case managers, Debor- rah Ferrone has a bachelor's degree in education and psychology from, William Penn College, and has earned 12 graduate credit hours at Drake University. Prior to being employed by PI, Ferrone had varied work experi- ence, some teaching, but much seemingly not related to human services field, certainly not in the handicapped service field. For 6 of her 7 years of employment with PI, PI has employed Ferrone in the position of case man- ager evaluator intake, coordinator In her intake coordi- nator function, Ferrone obtains all referral information on a client and submits it to an intake committee, which reviews the information to ensure the prospective client would be properly served by PI. Ferrone handles all the correspondence with an incoming person. In her evalua- tion function, Ferrone brings all new people (clients) in and works directly with them for the first 30 days, during which period she performs formalized testing pro- cedures. On completion, Ferrone writes up a report which is submitted to her supervisors, to other case man- agers, and to funding sources. In her case management function, Ferrone works with 10 clients who have a di- agnosis of mental illness. Ferrone otherwise works with staff just in programing times though she holds meetings where she receives input from staff about client activities or performances. Ferrone does not receive overtime; is allowed to take compensatory time off; and she normally works 39 hours a week. Ferrone testified, without contradiction, that a license as a client advocate, or in rehabilitation, is not re- quired of a case manager. Ferrone occupies an uncon- tested nonsupervisory, nonmanagerial position. 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD PI has employed Carolyn "Kelly" Decker as a case manager for 7 years. (Decker worked for the organiza- tion (ARC) that formed PI, and she has been actually credited with 10 years' service with PI) Decker has a 2- year associates degree from Des Moines Area Communi- ty College, and has completed 1 additional year in spe- cial education at Drake University Prior to employment at PI, Decker had mixed work experience, part clerical, but some work experience (practicums) in special and el- ementary education Decker currently manages certain affairs of 34 clients with physical or mental handicaps. PI has employed Patricia J Glasford for 7 years, the last 3-4 years as a case manager In 1965 Glasford ob- tained a degree in education, following which she taught school for 5 years Since then, and prior to employment by PI, Glasford had mixed work experience PI initially employed Glasford as a secretary before employing her as a case manager Glasford testified that as case manag- er she supervises clients not employees, though acknowl- edging she will discuss problems, new techniques, or a new program with other employees. Glasford denied au- thority to discharge, and although exhibiting some degree of defensiveness on further inquiry on authority to recommend, the record as a whole presents no evi- dence that would support possession or exercise of au- thority to recommend discharge Each of the four case managers has a separate office (with desk and own phone extension) in the main facility. The case manager functions essentially as a client advo- cate. The case manager reviews the initial report on a client that results from the PI initial evaluation and intake review preparatory to acceptance. The case man- ager, to whom an accepted client is thereafter assigned, then reviews all other available documentation (medical, referral, case history, and social agency reports). The case manager essentially conducts the review to deter- mine the individual client's strengths and weaknesses, and that review includes an interview of the client The case manager will then put together what the case man- ager feels is the best approach to bring about a positive change in personal behavior Illustrative of insight to PI approach Mather has observed the fact that the client is retarded is not the problem, the fact that the client does not get to work on time is the problem. The IPP ad- dresses specific problems. Though the case manager ex- ercises independent judgment, in its regard, the IPP is re- viewed by a case committee, with seeming initial approv- al by McClurg, though Sherod has clarified that the IPP is established by an interdisciplinary team (which in- cludes a person from DHS), and it is the team which has the ultimate control of the IPP. Case managers are on call 24 hours a day, and they set their own schedule. Of the above four case managers, three have bachelor degrees (Although Jill Dursky, the fourth case manager, did not testify the record estab- lished she had obtained a degree) In continued linkage to clients, parents, and funding source, PI views case managers as quality control people. They appear paid in the salary range of $13,000 to $15,000. Case managers are included in the unit (4) Residential managers PI hired Dan Westin in September 1983 as a supervi- sor; and he functioned essentially as the original manager of Progress East When Progress East suffered a fire, the extent and cause of which does not appear on record, PI reassigned Westin to the position (essentially) of manager of the supervised apartments. PI added FAP to his re- sponsibilities, though FAP (at least) shortly thereafter, came under the supervision of McClurg, to whom Westin reported. Westin has testified that he resigned in April because of stress and emotional problems brought on by his workload On cross-examination Westin testi- fied, I find credibly, that at that time he was the only manager with 20 clients, the only manager who was ad- ditionally a case manager of 4 clients, and the only man- ager (effectively) running two programs. Westin had pre- viously gone to McClurg to try to reduce his workload, but was unable to do so Despite Westin's additional candid acknowledgment that he (at some point) became involved romantically with Janice Sellers who for a time had worked under his supervision until transferred to an- other job (and who is one of the employees who initially contacted the UAW about seeking union representation), I conclude and find that Westin resigned from his man- ager position, as he has testified, essentially because of personal stress and emotional problems brought on by his workload. In so finding I do not discount the likelihood that Sellers would have been generally aware of the cir- cumstances existing at the time of Westin's resignation from his managerial position Indeed General Counsel's witness Stech testified on cross-examination that after Westin ceased being an active manager, he became active in the Union's organizational campaign Rory E Hill obtained a degree from the University of Northern Iowa in December 1979, with a major in man- agement. PI employed Hill initially as a lead trainer at Progress South. In September 1984 Hill moved to Progress East as group home manager. (Progress East is located on the east side of Newton) Hill could not recall if his group home manager job description had required a BA degree, but he has otherwise testified that it was not necessary, but that the ideal candidate for manager of a group home would either have a BA, or some type of management experience or work experience in the human service field As Progress East group home man- ager, Hill relates he had responsibility for the programs of clients living in the group home; for everything at the group home working mechanically; and for general upkeep of the building, and outside grounds Hill attend- ed IPP meetings, and he also attended periodic all-staff meetings that were held (presumably to train staff) to steer clients to more independence These all-staff meet- ings are to be distinguished from a certain management meeting held every Wednesday morning, to be discussed more fully infra. As Progress East group home manager, Hill supervised a staff of five PI employed Danny L Beeler as group home manager of Progress West from November 1984 through 3 No- vember 1986, at which time Beeler became group home manager of Progress East Thus in all material times, PI employed Beeler as the group home manager of Progress PROGRESS INDUSTRIES West. (Progress, West is an all-female'group home unit located on the Westside of Newton.) Beeler has de- scribed his responsibilities at Progress West were to see to it that the group home was run in accordance with state chapters (regulation); that the clients' IPPs were met; and that the home is clean. Beeler reported to McClurg until Van der Ley became his supervisor. As group home manager of Progress West, Beeler super- vised a staff of five. (5) Employees supervised In material times PI employed other employees at the group homes/apartment complex in positions of lead trainer, tialner, overnight aide(s), and part-time aide(s) whom the managers supervised and evaluated. A trainer is in charge of four clients out of eight (at group home). The trainer is responsible to see the client's total pro- gram of care (IPP) for the day is done; and the trainer ensures at the group home that, the clients are assisted in cooking and cleaning and that they are taken to and picked up from a location as needed, e.g., to get a hair- cut. According to Westin a trainer usually worked 3 to 11 p.m.; and the trainer was responsible for training a client pursuant to the client's IPP, which would include getting the client bathed; with client's help, getting supper ready; and generally providing supervised in- house cleanup. Westin described the job of lead trainer as a position he took to Sherod, developed and helped to write. Ac- cording to Westin, the lead trainer was the most knowl- edgeable and qualified to train; and was thus made second in charge to a manager, and responsible in the manager's absence. The lead trainer essentially also did a lot of the training of clients. Beeler confirmed that a lead trainer had the same job as a trainer, except they had delegated authority to be in charge of the group home whenever the manager was not present. They were re- sponsible for reporting back anything that went on, and for documentation of a problem area. According to Westin an overnight aide was mainly a cleaning position, which started at $3.50 an hour; and was someone who was present (overnight) in case of a problem developing with a client. Apparently at the apartment complex an overnight aide (in the morning) would clean apartments 6-7 a,m. In the group homes they worked 6-9 a.m., during which time they would get the group home clients up, gel breakfast prepared, and get the clients ready for work, A part-time aide is (materially) to be distinguished from an overnight aide. Beeler relates that part-time aides kind of do what a trainer does when the trainer is not there. However, they most often work on weekends. Beeler explained PI schedules activities for clients on at least two weekends out of the month. Beeler's part-time aide regularly filled in on the weekend schedule so he would have enough coverage to take clients wherever they would want to go. In case of (other) special activi- ties, the part-time aide might sometimes work (seeming- ly) on any given day throughout the week, kind of on call, but regularly. They would also similarly fill in for one who was sick, or on vacation, or (absent for) what- ever. 699 Beeler testified (and 1-Hill substantially corroborates) that the hours of an overnight aide (at least) at group home, at 11 p.m. to I a.m, during which period the aide is responsible for cleaning. The overnight aide then sleeps between 1-6 a.m., but is, as noted, available in case a problem develops with a client overnight. At 6 a.m., the overnight aide prepares breakfast for clients, makes sure the client's cleaning is done, doublechecks things, logs, and leaves by 9 a.m. The overnight aides es- sentially clean, and are overseers. On cross-examination Beeler credibly reaffirmed there is a difference in the job description between a part-time aide who assists trainers in IPPs, and an overnight aide which is essentially one of cleaning. In general, I so find. (6) Production manager PI employs John Bartello as production manager at the main facility. Materially, PI has employed Deborrah J. Braaksma in production as an extended employment supervisor since May 1986 (at $5 per hour). Overall PI had employed Braaksma for 6-1/2 years. PI employed Braaksma initially as an extended employment aide, and thereafter as a work adjustment aide, and as a micro- graphics supervisor (training clients in handling film, process, and jacket loading) before retransfer to extended employment aide work in 1984. PI has employed Linda Bollhoeffer for 4 years; for 2-1/2 years in the main facili- ty; and in material time, PI employed Bollhoeffer as an extended employment aide (at $4.33 per hour). (PI also currently employs work activity program instructors and specialists.) Essentially Bartello informs Braaksma of the (produc- tion) work schedule for the coming week. Braaksma as- signs clients to various jobs, and she essentially makes sure the work is done, and that clients perform the work. In regard to work, Braaksma has testified that she makes sure, like a floorlady, that there are no problems, and that the work (product) for other companies is what it should be. Braaksma testified that she has an aide work with her; that they make counts, figure times on client timecards, and figure productivity for the day. Braaksma has also testified that they mainly work on the floor. Braaksma, however, is also included in the group that is involved in setting up the IPP, goals that they (clients) need to accomplish. Braaksma testified that 5-10 percent of her time is spent in assigning the aide (related) duties to work with the clients; and that the rest of Breaksma's (own) time is spent working with the clients. Aide Bol- loeffer confirmed that she essentially supervises clients on the production work floor, and helps train them in jobs and work skills. Both Braaksma and Bolloeffer are unit employees. PI also employs a redemption driver in its work pro- gram. A redemption driver essentially drives to stores and gas stations to pick up cans and bottles; and the driver initially then returns them to PI. PI makes appro- priate counts of the collected materials, and returns the material to base user, e.g., Pepsi. 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (7) Transportation manager PI has employed June Anderson since PI began its op- erations in 1979, and since 1980, PI has employed Ander- son as manager of transit or transportation Operating on a normal workweek of Monday-Friday, PI daily trans- ports not only the clients resident at its group homes and the apartment complex, but other clients residing in other locations all over the county Thus a transport of clients is regularly provided in the morning from a group home, apartment complex, or other county location to PI's main facility, and in the afternoon the client is re- turned to point of origin Any required transport on weekends is provided. PI additionally operates a (gov- ernmentally funded) 24-hour demand/responses service for some 2000 elderly (over 60 years of age) On request PI will also occasionally conduct tours of its facilities with its own paid drivers as part of PI's public relation effort, for which direct charge is not made, but donation is solicited. Essentially Anderson is responsible for that availability of the required number of drivers, and for all related scheduling to provide the varied transport serv- ices. Anderson will otherwise spend the day handling demand response reservations. Anderson is a high school graduate who has continued her education at Des Moines Area Community College, completing courses there in psychology, administration, and certain other courses related to "Senior Citizens" and individuals in different handicapped conditions. An- derson, an excluded supervisor, supervises a staff of six (or more) PI employees, namely, three full-time drivers, two part-time drivers, one full-time scheduler-reception- ist (and apparently on occasion, one or more others part time). Most notably, PI employed Mike Maston as a full- time bus driver in material times. Anderson (transporta- tion) reports directly to Sherod, as does McClurg (voca- tional), Van der Ley (residential), and Bartello (produc- tion) Sherod reports to Mather 3. The scope of the complaint and objections In general the allegations of the complaint encompass certain alleged interrogations and threats and/or coer- cive remarks covering loss of employment benefits, less flexible and/or desirable working conditions, withheld wages, and changed layoff practices and procedures, all asserted as related to employees' engagement in union organizational activity The above interrogations, threats, and coercive remarks are alleged to have been made by one or more of the following President Mather, Vice President Sherod, Home Services Manager McClurg, and Group Home Managers Hill and Beeler Although the complaint allegations in some respects relate to lay- offs (as do two of the challenged ballots, Winifred Bar- wegen and Rory Larsen), the complaint alleges state- ments as violations of Section 8(a)(1) only. At the outset it is thus warranted to observe that the complaint does not allege, the General Counsel has not contended, and the record makes clear the parties did not raise, intend to, nor have fully litigated any issue of 8(a)(3) discrimination or 8(a)(1) discharge in regard to the Employer's elimination of certain jobs, and a concur- rent layoff of some 12 individuals (generally) on 8 June. (Because of varying service and/or job needs and consid- erations certain layoffs though announced to be effective 8 June, occurred effectively after 8 June.) Neither does the complaint place in issue, for the same reasons, in any respect, the Employer's selection of specific individuals for layoff, or other assignment. The issues presented by the complaint and resolved here are of alleged 8(a)(1) in- terference, restraint, and coercion of employees, as they are alleged to have arisen out of communication between the above managers and employees during the Union's organization campaign, and prior to the election con- ducted on 17 July. The General Counsel observes and, in general, I agree that the Petitioner's remaining objections as directed for hearing (essentially) track the complaint' s allegations, and to the extent they do not, the burden of proof rests on Petitioner Union. However, it is further observed at the outset that however broad may be viewed the lan- guage of certain objections, objections are not properly to be construed as raising any issue of discriminatory dis- charge and/or layoff, or discriminatory selection of indi- viduals for layoff, which is exclusively in the statutory province of the General Counsel's complaint issuance Only in that sense may the scope of the objections' elec- tion interference be reviewed for extension beyond the complaint allegations, if any, and remain the burden of the objecting petitioner-UAW 4 The scope of the challenges The DDE of 5 June described the following as an ap- propriate unit- All full-time and regular part- time non-professional employees employed by the Employer at its Newton, Iowa facilities, including lead trainers, follow along lead trainer, trainers, production work- ers, aides, specialists, drivers, maintenance/- warehouse employees, micrographics specialist, re- demption center specialist/manager, marketing and sales coordinator, and case managers (client advo- cates), excluding clients, nurse, office clerical em- ployees, on-call/casual employees, professional em- ployees, guards and supervisors as defined in the Act. There are seven determinative challenged ballots Per- tinently, the DDE, as amended by the Board , directed that Development Coordinator Joan Tyler, Public Rela- tions Coordinator Betty Wilcox, and Marketing and Sales Coordinator Bill Lien be permitted to cast chal- lenged ballots Lien, Tyler, and Wilcox have cast ballots that were challenged by the Regional Director's agent conducting the election. Like Sherod, Lien, Tyler, and Wilcox each report di- rectly to President Mather Petitioner UAW contends each is a professional or management employee, they do not have community of interest with other unit employ- ees; and it urges the challenge to their ballots be sus- tained, and their votes not be counted. PI argues each is neither a professional (within the Act's use of the term) nor management ; contends they do have community of interest with other unit employees , and accordingly the PROGRESS INDUSTRIES 701 Employer urges their ballots should, be opened and counted. Additionally the Employer has challenged the ballot of Winifred Barwegen , ' and the Petitioner has chal- lenged the ballot of Rory Larsen, both of who present layoff-related issues. Finally, the Petitioner has also chal- lenged the ballots of Evelyn Sherod (wife of Vice Presi- dent Dale Sherod) on the basis of being a close relative of management , with special status and without unit in- terest, and Kristi Beeler (wife of Group Home Manager Dan Beeler) on similar basis of being a close relative of management, but also questioning her employment status with PI . Essentially the Employer contends that Evelyn Sherod and Kristi Beeler are employees, who have unit interests, and they are not close relatives with interests so aligned with management that they should be disquali- fied from voting. 5. Decisional structure The unfair labor practice allegations are treated first, and with analysis, resolved in part II,B, of this decision. Objections are treated immediately thereafter, and re- solved in part II,C. In general, the facts relevant to the determinative challenge issues are marshaled in part II,D, except in a (layoff) instance (e.g., in regard to Winifred Barwegen) where it appears more convenient to develop all related facts at one place, viz, in part II,B. Resolu- tions of conflicting evidence on the determinative chal- lenges for I he most part are made in part II,D. B. The Unfair Labor Practice Evidence A. Union Activity 1. Initial employee contact The UAW has employed David Neil as an Internation- al representative since January 1983. Neil relates that it was the latter part of March that he was contacted by some (unidentified) PI employees. Progress East lead trainer Janice Sellers has testified that she was one of the employees who contacted the Union, but appears to have neither confirmed nor disaffii med an initial contact in March. FAP lead trainer Michal Stech has testified that he first became active in the union campaign in mid- to later March. However, bus driver Mike Maston, who op- erated out of the main, facility, recalled that his first awareness of the Union was approximately 25 April; and that he thereafter became active in getting union cards signed. Extended employment aid Bollhoeffer, who worked in the main facility, testified similarly that she first became active for the Union approximately the last week in ,April. 2. Initial company awareness President Mather testified that he first became aware of union organizing on the day of the Maytag stockhold- ers' meeting, which he thought was either 26 or 27 April. Mather relates that he was told by an unidentified staff member that union activity was going on among staff; and that cards were being signed to have an orga- nizing attempt. As there was only one major union in Newton, Mather assumed it was the UAW. Mather re- lates he inquired if Sherod knew anything 'about it, but did not recall what Sherod said, Mather had no prior ex- perience with a union organizing campaign. Mather (I find) first contacted the_ chairman of the board of trust- ees, Wayne Creegan. (Creegan is vice president of labor relations for Maytag.) Creegan instructed Mather that if the Union presented a letter to him he was to receive it, but not open the letter. Creegan also instructed Mather that if Mather did receive a letter from the Union, Mather was to call Creegan immediately. 3. UAW contact of Mather At 8:30 a.m. on 29 or 30 April, but more likely on 30 April4 (a Wednesday) Neil went to PI's main office to deliver a letter to Mather. This letter essentially stated that the UAW was conducting an organizing drive at PI, and that NLRB rules governed it. Neil did not know Mather at this time. However, UAW International Rep- resentative Max Tipton, and Willowby Newton, presi- dent of UAW Local 997, did; and they accompanied Neil to Mather's office. Mather has confirmed that he knew Tipton whom he had met in May 1978. At that time Tipton served on a (PI) planning committee. Mather confirmed that Tipton had thereafter been a charter member, and served as a trustee for 7 years before resigning (about 6 months earlier). Mather also confirmed that Tipton's wife had been Mather's execu- tive secretary for 7 years until she resigned, seemingly about the same time Tipton resigned as'trustee. Mather also knew Willowby Newton, president of UAW Local 997, which represents employees of Maytag. UAW Local 997 is located in Newton. Neil testified that he introduced himself to Mather, and stated they were conducting an organizing drive of PI staff; and Neil then presented the envelope to Mather. Mather's recollection is that the union officials said they were going to organize to represent our people. Neil's version otherwise is that: Mather stood up and asked ev- erybody in the room ' to make sure they saw the letter. Mather then backed them out of the room into the hall; Mather asked a secretary to get a brown manilla enve- lope; and Mather then said that he did not know any- thing about this (letter), and he was going to seal it. Mather put the Union's letter in the manilla envelope, and he sealed it, without reading the Union's letter. Mather essentially confirms the above, adding, that he said he was not going to read the letter. He dated and sealed it in another envelope, and he asked the union of frcials to sign. Mather also recalled that the union offi- cials said they were looking forward to working with him, and they left. Neil testified that his next contact with Mather was through Board process of the UAW's petition for an 4 Neil testified that the Union's visit to the Employer's premises was on 30 April Mather initially thought it was on 29 April, though he ap- pears to relate certain union handbillmg, which occurred on I May, as occurring on the next day Employee Bollhoeffer testified she started to wear a union pin, or button, the day the Union's letter was delivered, which she recalled as 29 April However, I conclude that weight of cred- ible evidence would more indicate 30 April as the day of the Union's first visit to Mather 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD election On 2 May UAW filed petition. On the same day the Union requested recognition by letter In the interim Mather had immediately called Creegan Creegan told Mather that they needed to have a meeting, and Creegan instructed Mather to call the (other) trust- ees and inform them Mather testified that a special meet- ing of the trustees was called, and held, and that the Board took a firm stand that the Union was not neces- sary or appropriate for PI Pursuant to direction, Mather hired a labor consultant According to Mather there then began a series of meetings about what PI could and could not do 4 The union organizing committee and uses of union buttons Certain employees served on a UAW organizing com- mittee and wore two (or more) type buttons that so iden- tified them. Progress East lead trainer Sellers wore both types of union buttons or pins. Sellers also testified that she and Progress East part-time aide Regina Frahm served on the UAW's organizing committee Frahm tes- tified that she wore a UAW organizing pin every day she worked from the last of April until after the election. Sellers spoke openly on union matters in company meet- ings with employees about the Union, most notably in the meeting of 1 May. Sellers also served as a union ob- server in the election conducted on 17 July. FAP lead trainer Stech testified that he wore a union button; that he got other employees to sign union cards; and that he remained active for the Union, though with his com- mencement of FAP work for Jasper County on 1 July, in addition to continued PI employment, he was not thereafter able to attend all the union meetings. Extended employment aid Bollhoeffer, working at the main facili- ty, wore a union button until after the election Boll- hoeffer also served as a union observer Bollhoeffer has testified that she, Sellers, and Stech were wearing pins in the 1 May meeting of that the Employer with employees about the Union. Busdriver Maston, working out of the sheltered workshop at the main facility, also served on the organizing committee, and he wore a union button every day Maston otherwise testified that he had first become aware of the Union on 25 April, and he thereaf- ter became quite active for the Union. Maston also spoke openly at company meetings with employees about the Union, most notably in a meeting held with transit or transportation employees on 12 May I conclude and find that General Counsel's witnesses Sellers, Frahm, Stech, Bollhoeffer, and Maston were from the start of the orga- nizational campaign openly active for the Union. Stech (alone) appears to place the first company meet- ing with employees about the Union in the latter part of May. However, as found above, I am wholly persuaded on the clear weight of evidence of record that the first company meeting with employees about the Union oc- curred on 1 May as Mather, Sherod, and a number of others witnesses have more convincingly recalled. More- over, I am convinced and I find that the three company meetings with employees that are material to consider- ation of specific complaint allegationss (regarding Mather and Sherod conduct) occurred on 1 and 5 (and 12) May, respectively. There were a number of staff meetings in which the Employer, in an ongoing manner, addressed union-related matters with employees, including one in the latter part of May at which an individual from Abili- ties and Goodwill, at Mather's invitation, appeared and spoke to PI employees about his (unfavorable) strike ex- periences with another union . It appears none of the events or circumstances of these meetings have been made a subject of the complaint allegation To the extent the General Counsel would appear to rely on third-party strike discourse presented in 29 May meetings, on this complaint and record, the same is without merit As to the 1 May meeting, Mather otherwise convinc- ingly recalled that when he came to work on 1 May, a number of people were handing out flyers announcing there would be a union meeting that night (General Counsel's witness confirms a meeting was held that evening.) Mather promptly spoke with Respondent's re- tained labor consultant, and they decided the Employer should have an immediate staff meeting with employees on the union matter that day at 2 p.m. Mather recog- nized they would not be able to have all staff present. (PI staff works on a 24-hour period; and drivers, e.g., were taking people home at the time the meeting was scheduled) Resultingly, the Employer recorded attend- ance (via use of sign-in sheet); and Sherod was directed to follow up on those absent Sherod did so meeting with the remainder of employees (apparently primarily resi- dential) on 5 May, and with transit employees, separate- ly, on 12 May. Mather did attend the (second) 5 May meeting, but did not attend the 12 May meeting with transit drivers. It is warranted to note there were no questions raised by employees in the second meeting. Mather testified that before the (first) meeting he and Sherod spent considerable tame going over what they could and could not say at a meeting with employees. Sherod testified that he prepared handwritten notes (or comments) on what he would say (as corrected with the aid of a consultant) and he asserts he thereafter read the notes verbatim, at each of the 1, 5, and 12 May meetings. Mather corroborated that he followed Sherod, as Sherod read the comments they were instructed to say at the first meeting . Sherod further testified that he followed the same comment format at the 5 and 12 May meetings with (only) one exception that he acknowledged on cross-examination, viz, that relating to the Company's claimed initial (1 May) nonawareness of whom UAW de- sired to represent (clients and/or staff). Sherod conceded his own awareness by 12 May that the Union desired to represent staff (only), but remained with unsureness if that had been determined by the 5 May meetings. Given Niel's testimony, and Mather's acknowledgement of an earlier report by a staff member of staff organizational effort, I do not find the Employer's claimed lack of knowledge of the UAW's organizational intendment to be very substantial, e g , being maintained only with strain, to the Employer's (unspecified) purposes in de- clining to open the Union's letter, delivered on 30 April. However, distinction may be made, in that regard, from what Mather and Sherod knew, or had reason to know, and what they actually said to employees. PROGRESS INDUSTRIES 703 C. The 1 May Staff Meeting 1. General circumstances Mather and Sherod held this first meeting with em- ployees in the large lunch or breakroom at the main fa- cility. Although this room accommodates 150, there were only 20-30, or about one-half, of the employees present for the meeting. The meeting started at 2 p.m., and lasted anywhere from 30 to 60 minutes, but more probably 45 minutes. Present at this meeting were staff employees who worked at the main facility, some rest- dential employees, but no drivers. (Sellers, e.g., was noti- fied at home by Bollhoeffer that the meeting was to take place, and came in early to attend.) In general it is undis- puted that Mather opened this first meeting with a few remarks, and promptly turned the meeting over to Sherod; that Sherod made several comments (of the order covering about eight points); and then Sherod opened the meeting to employees for a general question and answer session. Both the General Counsel and Respondent have pre- sented a great amount of testimony on this first meeting through testimony, of a significant number of witnesses. There are instances of record confusion, in certain re- spects traceable to whether an opening comment of Mather or Sherod was pursued with further comment in question and answer. There are a fair number of incon- sistencies in recalled details. There are major contradic- tions and conflict in the material evidence presented on the complaint allegations related to 1 May. 2. Sherod and Mather complaint allegations The complaint alleges that on 1 May, at Respondent's Newton office and workshop facility, Vice President Sherod• (a) threatened that employees would lose their employment benefits, and threatened (b) an employee and (c) employees,, with less flexibility in scheduling work, if employees chose to became represented by a union. The complaint also alleges that on 5 May, in a meeting held at one of the Employer's group homes, Mather and Sherod threatened employees with layoff, strikes, and loss of flexibility of working conditions, if employees chose to be represented by a union. It appears Mather started the (first) 1 May meeting by either speaking to employees about the recent union offi- cials' visit, or by addressing the union flyer distributed in the morning of 1 May. According to Sellers (and others), Mather said that three gentlemen from the UAW had walked into his office a couple of mornings before and laid a letter on his desk. Mather told the employees that he' had not opened the letter, and he did not know what was in it. Whether Mather started with this comment, it is clear of record that Mather discussed the first letter delivery, and its unopened status, at some point in the meeting. Not only have Sellers and Bollhoeffer testified thereon in essentially mutually corroborative fashion, but Respondent's witness Group Home Manager Hill con- firmed that in this meeting he had (later) asked why they had not opened the letter, and that Mather replied he had been advised by someone not to open the letter In that regard Sherod also recalled that Sellers and Hill had asked the same question in the question and answer ses- sion; and he (Sherod) responded, we had been instructed not to open the letter. There is difficulty however, in a further acceptance of Sellers' recollection that Mather also said that they (the union officials) informed Mather that his staff people were wanting to organize UAW. The same appears un- corroborated by other employees, and it is simply made the less plausible in context of other corroborated cir- cumstances. In that regard, Respondent established that Bollhoeffer in a prior affidavit of 19 June, thus much closer to the event, there had recorded recollection, "At this meeting Mather said they had received a letter from the Union, but they didn't know who the union wanted to represent, clients or employees." The second num- bered point in Sherod 's notes is additionally corrobora- tive to the extent that Sherod said that "Employer had no knowledge who the Union is trying to represent, staff, clients, both-or whom." Sellers also appears uncor- roborated in her recollection that after several inquiries were made on why (Mather did not open the letter), that Mather finally said, he did not care what was in it. I do, however, credit Bollhoeffer's additional recollection that in making (if not pursuing) his inquiry, Hill had said, maybe if they opened it (the letter), they would have more information, but that they (Mather and Sherod) stated again they were told not to. Mather's recollection of the start of the meeting is that, while holding a union flyer in his hand , Mather said, "many of you received , this (flyer) when you ar- rived." Mather proceeded to read the flyer to the em- ployees. Although union flyer subject appears in Sher- od's notes as an initial subject and Mather on at least one occasion related generally that he did not cover the points :contained in Sherod's notes that Sherod was to cover, Sellers had (generally) confirming recollection that Mather had mentioned that there was going to be a union meeting that night; and Sherod confirmed that Mather spoke about the 1 May flyer. (The union meeting was announced in the Union's flyer.) Mather further tes- tified, without contradiction, that he told the employees) that if they wanted to go (to the union meeting) that was their choice. However, Mather then said that there were some things that they (employees) needed to be aware of to know about (union) organizing activities. Mather told the employees that Sherod would go over them; and Mather then turned the meeting over to Sherod . Mather did not recall, and/or was unwilling to relate from memory what Sherod had said to employees without looking at what they were instructed to say (in Sherod's notes). Sherod asserted that he could not recall details of Mather's comments on the flyer. Employees relate that Sherod said he had seven or eight points he wanted to cover with the employees. Sherod testified that the agenda of what he was to say is contained in his own handwritten notes, the original of which is in evidence as Respondent 's Exhibit 10. Sherod has asserted that he read his notes verbatim; and Mather has confirmed that he had a copy, and he followed Sherod as Sherod did so; and that Sherod did not ad lib anything. The General Counsel argues from the nature 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the notes in evidence it is unlikely that Sherod read his notes verbatim It does appear therefrom unlikely that Sherod read his notes exactly There are general re- minders, or stress instructions, in the notes, e g , to use, "In my opinion and probably" that may, have been used each time with each of the points subsequently covered In certain other instances what is written down is more illustrative of captured thought than a stylish expression of the thought designed for speech delivery. Some state- ments are disjointed Be that as it may, I am nonetheless convinced on weight of evidence, particularly in light of certain confirming recollections of General Counsel's witnesses, that the notes, much more probably than not, fairly reflect what Sherod initially had to say on a sub- ject covered in his written remarks to the employees I am even more persuaded that the order of the points covered, beginning with the reason for the meeting to- night being the first subject covered, viz, "I Sign Au- thorization cards," and continuing with the order of what follows, is very likely the structured order of the points Sherod made in delivering his initial comments. On the basis of above and what follows, I so find The subjects are consequently treated (essentially) in that order Sellers has recalled that Sherod explained a little bit about the green cards that it (the Union) would be trying to get people to sign that night at the union meeting; and that Sherod said he hoped they (employees) did not sign them Bollhoeffer though exhibiting some degree of con- fused recollection in the matter, nonetheless did recall that Sherod started with the green cards, what they were, and she also thought Sherod said something to the effect he wished we would not sign them Apart from a reference to the Union need to have the union cards signed in order to meet a Government rule to have an election, and an admonition in the margin to "Read Cards Carefully," Sherod comment numbered "1 " con- firmingly provides, "we'd be hopeful people will not sign the cards + there will be no union election at P I." Moreover essentially at the end of the comments, and before the meeting was opened to question and answer there appears additional related comment, "for these rea- sons we are not in favor of having a union; Can't see how it can be a mutual benefit to you or employer" Mather recalled that there were questions (later) raised about union cards, what they meant, and could an em- ployee get a card back Mather has testified that he re- sponded he did not know, and that he made no other re- sponse However, I credit Sellers that at some point in the meeting, and on the basis of Stech's testimony, prob- ably early, Mather told employees that he did not favor the Union Sellers also recalled that Sherod said, beware of the promises the Union would make to people. Respondent has established that in Bollhoeffer's prior affidavit there appears simply as statement made, "The Union will make us promises " Sherod's third note however reflects he (essentially) told the employees, "if you go to the meet- ing, or any time, be aware of promises the Union makes " Although the same might in other context have the ear- marks of a well-turned phrase, in present context deliv- ered, and even as understood by Sellers, it contained no threat Sellers testified that Sherod said with a union there was still layoffs There were still disciplinary procedures, and (initially) it (sic) would be a reduction in benefits. Sellers testified that Sherod also said "with the Union there is strikes, and they had the right to hire people if they were on strike However, on cross-examination Sell- ers then related that Sherod said that if there was a union, there could still be layoffs and reductions in bene- fits, and things of that nature. When asked pointedly whether Sherod did not say it would happen-Sellers re- plied she was not sure how they said it Bollhoeffer testi- fied that Sherod said, with unions there are layoffs and strikes and that during strikes they have the right to hire (replacements) Stech's recollection was that Sherod said where there are unions, there are layoffs and strikes, and there is still disciplinary action taken by management Mather denied that he said anything about strikes, lay- offs, work stoppages, if the Union came in but acknowl- edged Sherod may have It is clear that Sherod spoke both of what still could occur and a view of what ac- companied unions. Thus, Sherod's fourth noted comment reflects in its entirety 4 Even where there are union [sic], there are lay- offs, employee discipline which can result in em- ployee (crossout) discharge-There are reduction [sic] in wage rate and benefits. Sherod's notes contain later reference -where there are union [sic] [crossout] strike and pickets occur -where an employee strikes it's legal for (crossout) PI to hire a (crossout) replacement for their job As well as disrupt Clt service There were other general comments made about union dues, dues amounts, decline of union membership, and a union interest in organizing then probably related to a desire to get more money (Sherod denied one employ- ee's recollection that Sherod additionally said the Union would fine an employee for nonpayment of dues. The statement is not in Sherod's notes. I credit Sherod's denial) There were expressions by Mather and/or Sherod, but on weight of evidence (I find) more prob- ably made by Sherod (only), raising to employees (essen- tially) a question of the propriety of UAW, a factory or machine union, representing a human services industry or program like PI Stech (alone) has testified that Mather and Sherod ad- ditionally said that their books were open, and even if a union came in and demanded wage increases, that the books would show that the Employer would be unable to pay the wage increase As noted Mather has denied (generally) making response other than to union card question(s) Sherod does not appear to directly address this particular statement insofar as attributed to him His notes do not reflect it Even assuming, without so find- ing, that Sherod and/or Mather made the latter state- ment, in response to a question in this meeting, there is no violation of the Act alleged, or shown in its regard PROGRESS INDUSTRIES On the basis of all the above evidentiary findings, I thus preliminary conclude and find that the Employer did not by Mather and/or Sherod's opening or initial re- marks and comments, threaten employees with either a loss or reduction in benefits, or threaten employees with less flexibility in their working conditions, if they chose the Union to represent them, as alleged in the complaint. Neither did they threaten employees with layoffs or strikes. Rather the opening comments of Mather and Sherod more reasonably appear as essentially but permit- ted expressions of their own varied arguments, viewpoint and opinion of the unsuitability, undesirability, and lack of need for a union at P.I., a human care industry, pro- gram, or facility, and/or that certain other specifically described (undesirable) events or circumstances (layoffs, discipline/discharge, and reductions in wages and bene- fits) could still occur, even if there was a union. As shown expressed above, which is (at least) representative of the evidence presented, both Mather's and Sherod's opening remarks and comments (I conclude and find) were well within Section 8(c) permitted employee ex- pressions of argument, viewpoint, and opinion and free of any threat or force or promise of benefit. Thus, if the instant complaint allegations under consideration are to be sustained, support for same must be shown to have arisen in the Employer's subsequent remarks made in the question and answer session that followed. In these re- spects there is simply considerable conflict in the evi- dence. a. Threatened loss of schedule flexibility At the outset it may be observed that it appears un- contested that employee Deborrah J. Braaksma has a handicapped son, and that it was her current practice to go home at a certain time (3 p.m.) everyday and help her son off the schoolbus. Braaksma would thereafter usually return to work. Sellers' recollection is that Braaksma asked if we (employees) would lose some of the freedom and flexibility that we now have, because it was her prac- tice at a certain time every day to go home and help her handicapped son off the bus. Bollhoeffer's recollection confirmed (more simply) that Braaksma asked if she would be able to get her handicapped son off the bus, like she usually does. Stech initially recalled more broad- ly that Braaksma asked if it was a regular practice for her to pick up her handicapped son at a certain time every day and she was released from work, if a union came in, if she could still have that option to do that and, if a union came in, would she still have the flexibility to go get her son at this certain time. On cross-examina- tion, Stech relates more succinctly that Braaksma asked, if a union were to come into Progress, would she still be able to go and pick up her son. Recollections about actual use of the word flexibility varied. Apart from con- tested recollection of whether the word "flexibility" was actually ever used in either question or answer, there is a major dispute of fact about Sherod's reply. Sellers' recollection is that Sherod said he was not sure but as far as from what he knew about it, that he thought we would lose that (flexibility). According to Stech, Mather and Sherod said that with a union there is very little flexibility in the hours, and they thought no, she would 705 not be--able to do that. On cross-examination, Stech re- called that Sherod had first responded, but Stech could not then recall exactly what Sherod had said. His best recollection in the end was (Sherod said) with a union in a facility, there is a lot less flexibility and (it) would not be likely that she would be able to go and pick up her son. Stech's recall at the time of giving a prior affidavit in June was that Mather and Sherod replied they thought the flexibility would not be there, once a union came in and that Sherod also said that with a union in there would be no flexibility regarding schedules and that schedules would remain the same and not (be) subject to change. Bollhoeffer's recollection was that Sherod (simply) said no,,he did not think it would be possible. Bollhoeffer did not recall if Sherod said why. In a prior affidavit of 19 June Bollhoeffer had there recorded as her recollection, "During this meeting a question was raised about flexibil- ity, specifically Deb Broxsnaa [sic] asked Sherod if she could continue to leave work to get her handicapped son off the bus at her home (which is a half block away) after the Union came in. Sherod said he did not think so." The General Counsel's witnesses' accounts regard- ing to reference to flexibility continued to vary widely. Sherod's recollection was that Braaksma asked a ques- tion concerning her leaving (PI) facility if the school would call and her child needed assistance-could she leave the building to go and take care of that situation, if the Union were to be organized at PI. Sherod was aware that Braaksma's child was a handicapped child. Sherod testified that he replied he did not know, and that he thought it would have to be negotiated in the contract; and whatever the contract said, "that's what we would have to go by." On cross-examination Sherod confirmed a recall of the question having a reference to a pickup of children off a bus; and Sherod testified that his response was that he did not know, but more than likely (it would' be) negotiated in the contract. Sherod flatly denied that he told employees they would have less flexibility in scheduling work if they chose to be represented by the Union. Mather denied that he threatened any employee with a loss of flexibility in working conditions if employees chose to be represented by a union; nor did he hear Sherod tell employees that. Mather confirmed that Braaksma had asked whether she would have release time to help her child off the bus; and that Sherod re- sponded that at this point "we do not know, that will have to be negotiated if the Union comes in." Mather also corroborated Sherod, that Sherod did not tell em- ployees that they would have less flexibility in schedul- ing work, nor did Mather. There is conflict between the General Counsel's wit- nesses Sellers, Bollhoeffer, and Stech on the one hand, and Mather and Sherod on the other. There are some significant inconsistencies in the above accounts of the General Counsel's witnesses, although the accounts of Mather and Sherod appear on the surface the more con- sistent and mutually corroborative. Respondent has additionally presented testimony of a number of other employees in support of Sherod's dis- claimer of threatening employees with a loss of schedule 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD flexibility. Braaksma, who had previously worked at a school for cerebral palsy children and young adults, but who at this time was an extended employment aide for PI, testified that she believed she asked Sherod, if the Union wouldn't (sic) be voted into PI, if she would still be free to get him (her handicapped son) off the bus at 3 p.m., and then return to work. According to Braaksma's recollection, Sherod said, at this point in time he did not know, and that it would be something that would have to be brought up in negotiations. On cross-examination Braaksma testified (credibly) that it definitely was pretty important to her, and that the Employer gave no indica- tion (it would) have to change. Additional cross-exami- nation established that Braaksma had attended a union meeting early in the campaign. Braaksma testified that she believed that she asked the same question (there) and received the same answer. Thus Braaksma recalled the Union's president had asked Braaksma if she were doing it now; and that when she said yes, he said it will prob- ably have to be in negotiations; that at this time he did not know, and it had to be in negotiations. Braaksma did not recall any other statements made of the effect on flexibility of the Union coming to P.I. Case Manager Glasford, a witness also called by Re- spondent, on cross-examination related there probably were questions with regard to flexibility, but then Glas- ford could not recall how any were stated. In contrast, Case Manager and Evaluator Intake Coordinator Fer- rone did not recall the word "flexibility" discussed in the first employer (or any other) meeting she attended. Fer- rone's recollection otherwise confirmed that Braaksma had (simply) asked the question, would she still be able to leave to get her son off the bus, that she left at 3 p.m., and would that be able to be "continuing" (sic), because that was a concern to her. According to Ferrone's recol- lection also, Sherod said that he did now know, and that if a union ever' came in that would be something that would be negotiated, and he just did not know at this point. Though Group Home Manager Hill testified addi- tionally on this matter, his testimony on this Braaksma matter was so generalized and/or vague in delivery as to be deemed not to add significantly in resolution of the matter of an alleged threat of loss of flexibility. Nonethe- less the testimonies of Braaksma and Ferrone have sub- stantially corroborated the testimony of Sherod and Mather, including the reference to related negotiations, which, in light of the greater inconsistencies in the Gen- eral Counsel's witnesses' accounts and other reasons to immediately follow, I find more reliable and credit. I conclude and find that weight of credible evidence does not support that Sherod (or Mather) threaten an employ- ee (Braaksma), or employees generally, with less flexibil- ity in scheduling work if employees chose to be repre- sented by a union. b. Loss of benefits Sellers recalled that someone also asked about benefits, what would happen to benefits if the Union got in; and that Sherod said, from what he understood they would go back to zero. Bollhoeffer relates that she believed it was (Case Manager) Pat Glasford who asked a question about whether the benefits would stay the same; and she also related at hearing that Sherod replied they would have to revert back to zero. On cross-examination Boll- hoeffer clarified she did not recall Glasford' s question word for word, but asserts she believes Sherod' s answer (was) they would revert back to zero. Respondent, how- ever, has established in cross-examination of Bollhoeffer that in her prior affidavit of 19 June, Bollhoeffer had not referred to this incident or remark at all; and Respondent established also that Bollhoeffer had talked with Sellers about the meetings before. Stech's recollection was that during the meeting a question was asked if the Union got in, would there be any change in benefits. According to Stech, Mather and Sherod said they thought it would eliminate the benefits; and Stech has Mather and Sherod say they would have to start from scratch. Stech amplified that Sherod an- swered first and Mather confirmed he thought that also. Though on cross-examination Stech also recalled that it was Pat Glasford who had asked the question, he then recalled the question asked was if a union came in would we lose all our benefits and have to start over, and that Glasford was the only one who asked about benefits. Stech on cross-examination then less convincingly relat- ed that Sherod responded first, and said (only generally) he thought it would have to, though he did not recall Sherod's exact words and Mather said the same thing. In contrast, in a prior affidavit Stech had there related, Mather and Sherod stated (unequivocally) that if a union would come in the existing benefits would be completely wiped out and everyone would have to start from scratch. There is thus significant variance in Stech's own recol- lection; and there are clear material inconsistencies be- tween his recollection concerning to start from scratch and the recollection of Sellers and Bollhoeffer of revert back to zero. In contrast, Mather recalled that it was Case Manager Kelly Decker who had wanted to know if the Union came in, will the benefits still be there; and how would that be handled, something to that effect. Mather testi- fied that he did not respond, and that Sherod (generally) said a lot of "I don't knows," and that those things will have to be negotiated. (Mather explained there were still other questions raised about what happens next, and when the election would be, things they just did not have any knowledge of.) However, Mather specifically denied that he made any indication of this (first) or any meeting, or at any time, that benefits would start from ground zero, or go back to zero in connection with the union campaign, and he testified neither did anyone else say that in his presence. Mather specifically denied that he or Sherod (in his presence) told employees that employees would lose their employment benefits if they chose to be represented by a union. Sherod has also denied that he told employees in the 1 May meeting that they would lose their employment bene- fits if they chose to be represented by the Union. Sherod confirmed that it was Kelly Decker who had raised a question concerning benefits recalling the question was asked, what would happen to benefits if and when the Union was organized at PI. Sherod testified that he re- sponded that would be the issue that would be discussed PROGRESS INDUSTRIES in negotiating the contract; and on cross-examination (es- sentially) reaffirmed he answered that they (benefits) would be negotiated in the contract if the Union orga- nized. Sherod further testified specifically that neither he nor anyone else told employees at the (first) meeting that benefits would go back to zero if the Union came in, nor did he say anything about benefits and zero. Sherod fur- ther testified that neither did they say or suggest that bene- fits at PI would go back to, or start from scratch, or that negotiations with respect to benefits would start from scratch. Braaksma recalled that there was a question raised about benefits and insurance because she also had a con- cern of that, and she believes it was (raised) in the first meeting. Braaksma did not recall who asked the ques- tion. However, Braaksma recalled that Sherod (again) said, "I don't know," and said there will have to be ne- gotiations. Braaksma had no recollection of Mather ever responding to a question about benefits. Case Manager Glasford recalled (generally) that man- agement said if the Union came in, negotiations would have to take place. Although affirming a question was asked about benefits, Glasford did not recall if she had asked the question about benefits, or was thinking about it (e.g., at time someone elese did). However, Glasford otherwise recalls the question as asked was, if the Union did happen to become voted in at PI would we lose our benefits, or would we have the same benefits. Glasford's recollection is that Sherod said, they were in a` learning experience just like the employees were; that they had not dealt with union things; and that it would have to be negotiated, or talked about, or worked out. Ferrone however testified that she believed it was Kelly Decker (thus corroborating Mather and Sherod) who asked if a union came in would she still maintain her benefits; and Ferrone recalled that Sherod answered, that they did not know, and it a union ever came in, that would be something that would be negotiated. Like Braaksma, Ferrone also recalled no response by Mather to the question. Case Manager Kelly Decker testified affirmatively that she had posed a question with respect to benefits. Al- though Decker has testified it might have been in the first meeting, but she was not sure, Decker has othewise described circumstances of the Employer's first meeting, sufficient to convince me that it was raised by her in the first 1 May meeting. Decker testified that she has current benefits consisting of 20 days' vacation, half of which, if unused, can extend to the following year. She also has 'life and disability insurance and health insurance for her- self and for her family that she pays for. In the latter regard Decker further explained that she had a son who has a congenital heart defect, and she needs the insur- ance coverage for her son. I find Decker's testimony is particularly notable. Decker recalls she asked, if the Union was formed at PI would we lose benefits, or start over with benefits. According to Decker, Sherod an- swered "we don't know, we've never been through this before, " and it might be something that would be negoti- ated. On cross-examination Decker reaffirmed they said they did not know. 707 Case Manager Glasford did not think anyone in the Employer's I May meeting indicated that benefits would start from ground zero if the Union came in; and Glas- ford did not think that benefits would start from scratch was ever said. Glasford has also testified that with her 7 years on vacation time accrued, sick time, life insurance, and two daughters on health insurance, and dental insur- ance covering herself and children, benefits were of spe- cial interest and importance to her. Even more material- ly, Glasford, who attended no union meeting, relatedly testified that if someone had said benefits would be start- ing from zero, or ground zero, she definitely would have remembered that, or if someone had said benefits would be starting from scratch, she would have recalled that. Braaksma similarly testified, it would have been impor- tant to her if someone said at one of these meeting that the benefits would start at ground zero. Braaksma did not recall that; and she testified that she would have re- called that, if said. Braaksra also did not recall a state- ment made on start from scratch, and on cross-examina- tion testified definitively that that could not have been said as she would have remembered it. Decker, who no- tably testified that she did not remember missing any all- staff meetings, also testified that if someone had said ben- efits would go to zero, that would have been important to her; and similarly, if someone had said (benefits would) start from scratch, she would have remembered that. Decker otherwise testified that she did not recall Mather or Sherod say at any meeting that she attended that benefits would revert to zero or start from scratch. Ferrone also recalled no reference to ground zero, start from ground zero, or start from scratch statements that she also believed she would have recalled, if they had been made. Candidly, and only the more persuasively, Ferrone also testified that she recalled no related state- ments were made by Sherod either that the benefits would remain the same pending negotiations or that they would negotiate in good faith; reaffirming however that they had (only) said they did not know, that would be something that would be negotiated. Decker has additionally testified, that she thinks she also asked the question (about benefits) at a union meet- ing; and that (in any event) she knew it was asked there. On redirect Decker recalled that they (the Union) also said we could negotiate anything we wanted to into our contract. Bollhoeffer has confirmed that she attended the union meeting that night; that someone asked about the benefits; and that Neil answered that they (benefits) would not revert back to zero; that they would negotiate; and they (benefits) would remain the same. Bollhoeffer did not recall it said at any time that for someone to say it (benefits would revert back to zero) was illegal. Analysis The weight of credible evidence above has wholly convinced me that neither Sherod nor Mather made any reference to benefits starting from ground zero, or from scratch, nor any 'similar derivative reference. Given the above-observed significant variances and/or inconsisten- cies in the accounts of the General Counsel's witnesses Sellers, Bollhoeffer, and Stech on the one hand, as com- 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pared with the essentially mutually corroborative and consistent testimony of the Respondent 's employee wit- nesses Ferrone, Decker, Glasford, and Braaksma, who have testified in manner providing convincing support to Sherod's and Mather's above mutually corroborative de- nials, the General Counsel's offered evidence (at best) does not prevail on weight of credible evidence consider- ations in establishing that either Sherod or Mather at any time in the first meeting of 1 May threatened employees with a loss of benefits, by statements that benefits would revert back to zero, or have to start from scratch, if em- ployees chose to be represented by the Union. Rather the weight of the credible and corroborative evidence persuades me that Sherod informed the employees on an inquiry about benefits (essentially) that at this point he did not know, and that benefits would be a subject of ne- gotiations if the Union came in. However, even if I were to selectively credit Decker's account, it would then appear that to a question posed by employee Decker of whether employees would lose, or start over with their benefits, Sherod (at best) an- swered (only) they did not know, as they had never been through this before, it might be something negotiated; and Mather (at best) at some point may have added "we do not know if this is the procedure ."5 Even if it be con- cluded there was no firm reference to benefits being a subject of bargaining in the response to this precise ques- tion, in context, there was no violation. Decker's account of Sherod's disclaimer of knowledge on the matter (or Mather's stated lack of knowledge of the procedures) neither by itself, nor in supplemental context of the Em- ployer never being through this before , constituted a direct or reasonably implied threat by the Employer to employees that employees would in fact or probably lose their benefits if the employees chose the Union to repre- sent them. Cf. Monterey Drilling Co., 255 NLRB 494, 496 (1981). Neither does a further consideration of the other evidence offered by the General Counsel concerning the Employer's subsequent meetings held on 5 or 12 May convince me otherwise, or independently establish a vio- lation occurred at either of those times. There is some conflict in the evidence about Sellers' prounion prominence in this ( 1 May) meeting. Sellers tes- tified that when both Mather and Sherod had said they did not know who the UAW was after to organize, Sell- ers said the UAW was not after anyone, and stated that certain staff from PI had gone to it (UAW). According to Sellers, Mather walked up a little bit closer to her, a couple of feet away and looked at Sellers. Mather said, "Yes, but we don't know who those staff people were- are yet." Mather appears not to have addressed this matter. Sherod denied he had a discussion with Sellers; and he also denied there was a discussion with respect to who the staff was that was involved in the union organi- zational campaign . Sherod further testified that he did not see Mather walk up (close) to Sellers. Respondent, however, did establish that in the prior Bollhoeffer affi- 5 This issue continued as a matter of campaign addressment Maston confirmed that in the minutes kept on the Mather meeting with employ- ees on 9 July, Maston recorded that Mather told employees, We never said that everything would start from scratch if the Union came in " davit Bollhoeffer then recorded that at the end of this meeting Sellers had told the employees that if they had any questions that they should attend the union meeting that was going to be held that evening. There is no con- trary evidence of record . Thus, I have no doubt in any event that Mather, Sherod, and Group Home Manager Hill (who otherwise effectively concedes if) were well aware of Sellers' strong and declared prounion sympathy and activity, from 1 May on, if not before. 3. The 5 and 12 May staff meetings General Counsel's witness Winifred Barwegen , a (pro- bationary) trainer in a group home at the time, testified that she attended a meeting on 5 May at 9 a.m. at which Mather and Sherod appeared and spoke negatively about the Union . Barwegen had recollections of a similar (clearly permitted) statement being made about union fees; that unions do not guarantee job security ; and that the employees should beware of union promises . Barwe- gen apparently recalled (only) a statement made that "Unions bring layoffs." Otherwise Barwegen had but generalized recollection that flexibility could be a ques- tion, as far as lessening of it, but no definitive statement in that respect is attributed by her to either Mather or Sherod, who have testified as noted above (at least as broadly) in denial that any related threat was made to employees on loss of flexibility of their working condi- tions, a loss of benefits , or layoff, if they chose to be rep- resented by a union. Sherod confirmed he held a second meeting on 5 May, at Progress West; and that there were approximately 15 (principally) residential staff present. According to Sherod, he presented the same (handwrit- ten) comments to this group , as he had to the first group. Thereafter, he asked for questions and answers and, as he recalls, there were no questions raised by this group. Barwegen confirmed that there were no questions asked. The evidence offered as to the 5 May meeting is simply wholly insufficient to establish any violation of the Act. Sherod held a third (related) meeting for transporta- tion department employees on 12 May, in the large con- ference room at PI 's main facility. Mather (I find) was not present at this meeting . The meeting was conducted by Sherod . June Anderson, transit manager, who had at- tended the first 1 May all-staff meeting, was also present at the 12 May meeting , along with all the transportation employees that she supervised. Sherod again presented his comments; and there followed a question-and-answer session. During this session driver Pender, but principally and foremost (then) bus driver Mike Maston, made vari- ous comments favorable to the Union . Apart from obser- vation Maston posed questions about the nature of the payments made to PI's labor consultant, to which, Sherod replied (essentially) that PI did not favor a union, and what would he (Maston) did, otherwise only certain of the questions posed by Maston and answers he has at- tributed to Sherod, would appear of further material consideration. At the outset it may be appropriately observed, as the Employer does in brief, that there is no complaint allega- tion of a Sherod (or Mather) threat made to employees on 12 May, though scope of certain objections would ar- PROGRESS INDUSTRIES guably extend their coverage to this meeting. Maston re- lates that he had talked to Sellers earlier in the week. According to Maston, in the 12 May meeting, Maston said that notes were taken by another organizer in a pre- vious meeting (that he had not attended); that somebody said that "we would start from ground zero" concerning medical insurance; and Maston asked Sherod if that was true. Maston i(at hearing) has Sherod at first reply, "No, no one made that comment," or statement, in that (earli- er) meeting. Maston relates that he again looked at his notes and said that he had been confronted with two other people, that this statement was made. According to Maston, Sherod right ' away said, "no" again; and Ander- son this time said, "No that wasn't no, no, no." Maston relates that he then said, "well according to the months [sic, but in context clearly notes] that I have, that some- body in that meeting made that statement", and Maston said, "it was either you, or Bob Mather." Maston relates that Sherod again said, "No, no one did", and Anderson reaffirmed that she,did not remember anyone saying that. However, according to Maston, he persisted, and (essen- tially) said, "I have got it right down here on paper that somebody said it during that meeting, and [later] that two other people told me it was said." Maston's version has Sherod then say, "Well now that I think about it, Bob Mather did mention that." Maston relates that he then said, "That's against federal law, and that we would start where we are at right now"; and (later) that he said, "we would continue with all existing policies until a contract was settled." At time of hearing Maston was employed by Maytag as a driver, and no longer em- ployed by P1. The General Counsel has offered no cor- roborating witness in support of Maston's above account essentially of a Sherod admission of a prior Mather threat. Neither Sellers' nor any other employee's testimony is specifically supportive that Mather or Sherod in an earli- er meeting had said that employees would start from ground zero specifically concerning medical insurance. At hearing Maston also could not recall anything else said about losing any benefits. Maston kept notes of the meeting of 12 May, which the Employer has introduced into evidence as Employer's Exhibit 5. In contrast with hearing recollections that the (Mather) statement was that "we would start from ground zero concerning medi- cal insurance," and in contrast with his hearing nonrecol- lection of any other statement of loss of benefits, Maston's notes in pertinent part reflect that Dale Sherod or Rob Mather had said at the prior meeting, "If a Union is voted in, we would lose all Medical Ins." In contrast with the General Counsel's witnesses' recollections in earlier meetings, and his own initial concurrence, Maston also asserts that Sherod in his meeting of 12 May said (essen- tially,) where there is a union there are always layoffs, always strikes. The variances in the Maston attributed statements, in my view, are substantial; and I observe only in general that certain of Maston's other testimony when given at hearing was simply not then impressive nor, on review, is it now found persuasive. In contrast, Sherod candidly confirms that at the 12 May meeting Maston asked Sherod if Sherod had made a (prior) statement at the 1 May meeting that benefits 709 would start at scratch or zero, whatever the statement was. Sherod confirms that he denied it; and he confirms that Maston repeated the question; and that Sherod denied it again. According to Sherod, that was it. How- ever, Sherod thereafter again candidly affirmed that Maston also did say he had notes from someone who at- tended the meeting, without identifying that person. Sherod specifically denied he told Maston that at the I May meeting that Mather had said that benefits would start from zero if the Union came in at PI; denied specifi- cally that he (Sherod) said to Maston, "Well now that I think about it Bob did mention that"; and Sherod denied that Maston made any statement that anything was against the Federal law, and they would start (bargain- ing) from where they are now. Anderson testified about the 12 May meeting, though it will be appropriately recalled she was also present at the I May meeting. Anderson initially recalled that Maston asked if we would lose all our benefits that we have presently, and that Sherod said, "At this point in time we don't know, it would be one of the things that would be negotiated in making the contract " (Anderson also recalled that in response to a question raised about (use of) a timeclock by Pat Burrel, Sherod said at that point in time "we didn't know, it would be one of the things that would be negotiated.") Anderson specifically denied that Sherod indicated that in a prior meeting that Mather had said they would be starting from ground zero with respect to insurance benefits; and she also did not remember Maston say in her presence, that it was against Federal law; nor did he (Maston) say they would start where they are at right now. Given the major in- consistencies between hearing testimony and his notes, which render Maston's uncorroborated recollections less reliable in the face of Sherod's corroborated denials, I credit Sherod. I thus further conclude and find that Mas- ton's recollection do not afford support for the earlier considered complaint allegations. Accordingly it will be recommended that all the com- plaint allegations be dismissed that respectively assert that President Mather and/or Vice President Sherod var- iously threatened employees on 1 and 5 May, that em- ployees would lose their employment benefits, or threat- ened employees with less flexibility in scheduling work, or threatened employees with layoffs and strikes if em- ployees chose to become represented by a union. 4. The alleged interrogation of an employee by Group Home Manager Rory Hill on 2 May Sellers at this time was employed by PI as a lead train- er at Progress East, and paid a rate of $4.90 an hour. Sellers was under the direct supervision of Progress East Group Home Manager Rory Hill. Although as lead trainer Sellers would be regarded as second in charge of Progress East group home, as earlier noted, Sellers was a nonsupervisory employee. As a lead trainer Sellers pri- mardy trained clients, handled their money, cooking, grocery and other shopping, and generally taught the cli- ents to perform as many of these functions as possible. Since September 1985, PI employed Regina Frahm as a part-time aide at $3.43 per hour at Progress East, thus 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also under the direct supervision of Hill. Frahm relates she worked 28 regular hours as a part-time aide. Frahm assisted the overnight aide at Progress East _ in that Frahm's weekday schedule at Progress East was 6 to 9 a.m., Monday through Friday (15 hours). Frahm also worked on Saturday from 9 a.m. to 10 p.m. (13 hours). Primarily (during weekdays) Frahm helped the clients to perform their IPP personal tasks, e.g., in initial cleaning, fixing breakfast, and getting chores done and ready for work. Interrogation The complaint alleges that about 2 May, Group Home Manager Rory Hill interrogated an employee about em- ployees' activities for and on behalf of the Union. Frahm has testified that she had a conversation with Hill about the Union around 2 May. Frahm recalled more precisely that it was the morning after the union meeting (held on 1 May). Frahm has acknowledged that she was wearing a union organizing committee pin at the time; and that they were just talking casual. Frahm relates that Hill opened the conversation, and he asked Frahm if she had attended the union meeting the night before. Frahm said yes. According,to Frahm, Hill then asked how many were there. Frahm said 20-30. Frahm relates that Hill then asked Frahm if Frahm knew any of the people there; what was said; and how long it lasted. Frahm told Hill that she did not really know many of them because most of them were from in-house (main facility), and she was not familiar with a lot of them because she did not work with them. Frahm further testified that Hill then asked Frahm who had attended from the group home that she did know. Frahm told Hill only the ones from their own group home, naming Sellers, Stech, Tracy Walker, and Jennie Adams. (On cross-examination Frahm reaffirmed naming only the same, adding, if there were anymore, she did not remember them.) According to Frahm, Hill also asked her what the reasons were for wanting a union. Frahm told Hill the main reasons were: -better quality care for the clients; staff having more say so in job bidding; and better pay and benefits, if the funding was there. Hill testified that Sellers and Frahm were good em- ployees; and he affirms that they got along well together. Hill testified that he had first become aware of union or- ganization 1 hour before the all-staff meeting (held on 1 May). Hill had come out early for the staff meeting in order to do some other things; and he recounts someone in the mailroom told Hill what the meeting was to be about. At first Hill denied a conversation with either Sellers or Frahm when he asked questions about who at- tended union meetings Hill went on to clarify that he probably did not discuss it with Sellers because he knew Sellers was involved with the Union and they seldom discussed it. On cross-examination Hill clarified he knew Sellers was very active for the Union, from things she said; and he confirmed Sellers wore a union organizing button. In contrast, Hill testified that he did not feel Frahm felt as strongly the need for the Union. Hill ac- knowledged that Frahm had also worn a union button. Although Hill testified he was not sure Frahm wore an organizing committee button, I have found Frahm did. However, I also conclude and find that Hill believed that Frahm was not as strongly prounion as Sellers. On other occasion Hill acknowledged that he had discussed union organizing activities and their meetings occasionally with Frahm; but again related that he did not remember dis- cussing the attendance at union meetings with Frahm. Hill has otherwise acknowledged having general talks with Frahm about the Union; and, on cross-examination, asserting there were about 15 such occasions. Hill has confirmed questions were asked why Frahm felt she needed one (a union); what good she thought it would do the residents and staff at the group home; but he also revealed that they had discussed staff meetings and how different people reacted. On cross-examination Hill re- called (confirmed Frahm) that Frahm's first (stated) re- sponse was to help residents for whose welfare she was concerned; but that in later discussions it was more di- rected to the staff, and less to residents, recalling state- ments made by Frahm that the staff was unhappy; and that they should be getting pay and benefits, vacation. Hill has denied that he ever specifically asked anyone to name the names of people who attended union meet- ings. Hill subsequently recalled he had asked an employ- ee, Kelly Davis he thought, if there were 5 or 105 there; but as he recalled, Davis had worked that evening and did not attend, or know. (It appears inherently likely that Hill also interrogated Davis at this time; and there is no evidence presented that Davis was an open or pro- claimed union supporter.) Hill has otherwise admitted that he had knowledge of who attended, but asserted it was dust from what em- ployees said, further asserting that on occasions other employees told him who attended. Although at first not recalling who had told him, Hill then related another (named) employee had kicked it (which people attended) around, and that probably friends of his had given Hill the information. Although Hill has denied he specifically asked Frahm who had attended, Hill has acknowledged that basically it was Frahm who told him what the people who were attending were interested in achieving, which was to get more benefits and to correct some (in- specified) problems. On cross-examination, although ini- tially relating that he did not remember asking Frahm how many (employees) attended, Hill later conceded that he may have asked Frahm for an approximate number (of employees attending), but reasserted he did not ask Frahm for specific names. In this instance the testimony of Frahm is clear and consistent. In many substantial respects it is supported by Hill's testimony (and where not, Frahm's testimony ap- pears the more plausible in the total circumstances of this conversation). Finally, concerning this conversation, in contrast with others, Hill's testimony appeared strained, and slow to evolve, indicative of a lack of initial candor, if not evasiveness. I am in the end persuaded that Frahm's recollections as to the nature and scope of this initial conversation with Hill on 2 May are to be wholly credited. This includes Frahm's testimony (essentially) that Hill had pressed in an early probe for the names of other employees in attendance, to extent Frahm knew them, and was willing to identify them. Moreover, from PROGRESS INDUSTRIES the nature of all the above questions (I find) that Hill asked Frahm, the continued questioning constituted a probe well beyond any projected reasonable openness by Frahm to discuss her own reasons or interests in being active for the Union. Hill's questioning of Frahm encompassed impermissi- bly a probe of the identity of, and the sympathies and in- terests of, other employees, as evidenced by the ques- tions directed not only at the number in attendance at the union meeting, but the pressed probe of who the others were, to extent known by name; what (essentially) were the stated interests of employees at the meeting; and how long the meeting had lasted, itself reasonably indicative of the extent of employee interest and degree of initial involvement with the Union. Thus, I further conclude and find that Hill's probing interrogation of Frahm (at least) in the areas of other, employees' inter- ests, sympathies, and activities for and on behalf of the Union, reasonably tended to interfere with, restrain, or coerce employees in the exercise of Section 7 rights, and occurred in violation of Section 8(a)(1) of the Act, as al- leged in the complaint, cf. Southwire Co., 282 NLRB 916 (1987); Fimco, Inc., 282 NLRB 653 (1987); Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). 5. The alleged threats made to employees on 16 May by Group Home Manager Rory Hill The complaint alleges that about 16 May, at a group home, Group Home Manager Rory Hill threatened em- ployees with less desirable and less flexible working con-, ditions, and threatened that employees would not be al- lowed the work flexibility that they currently enjoy, if employees chose to become represented by the Union. At the outset it is observed that, as set forth in PI's handbook, an employee who regularly works 30 hours is considered full time, which then entitles the employee to benefits (e.g., insurance, vacation, etc.). Frahm relates that in March-April Frahm was taught how to do the budgeting for the group home. In performing this work, Frahm asserts she began working a couple of hours extra (over her initial 28 and later 29 regular hours). Accord- ing to Frahrn it was in April that she made an initial oral request to Hill to receive benefits. Frahm relates that she had another conversation with Hill about the subject of her reclassification, on 16 May, a Friday, in the Employer's Progress East group home. On this occasion Frahm had come in to pick up her check. Sellers was on duty. According to Frahm, Frahm opened this conversation, asking Hill if any decision had been made about her being reclassified. Frahm related that because she had been working full time (30) hours and not getting benefits, that she had been waiting on an answer to her (prior) question (raised) on the possibility of Frahm to be reclassified full time, and receive bene- fits. Frahm testified that on this occasion Hill said she would not be; and that when Frahm asked Hill, if Hill could tell her why, Hill said he would not. (Sellers has essentially corroborated Frahm's above account, except Sellers' recollection was that Hill said he could not tell her that.) Frahm (without corroboration by Sellers), next 711 relates that she asked Hill why Hill would not tell her, and that Hill then said that Mather had told him not to tell her. At the time of hearing, Hill was employed as a fitness instructor (only) at the YMCA and no longer employed by PI since 31 October. In regard to this incident, Hill's testimony was much more open, and resulting more con- vincing. Hill testified that part-time aide Regina Frahm was scheduled for 29 hours of work Hill asserts she oc- casionally worked over 30 hours. Hill explained that the reason Frahm worked over 30 hours occasionally was because they were short an on-call person. They had an on-call list, but were down to one available on-call person. When an employee was occasionally sick, had an appointment, or could not come to work, Frahm was always available and willing to work. However, Hill tes- tified that he had told Frahm that it was her option (to work) when not scheduled. Nonetheless Hill confirmed that Frahm had wanted to be reclassified full time, in order to be paid more and to get some benefits. Hill saw nothing wrong with Frahm's request, but testified that he told Frahm that he would have to talk to his (then) Su- pervisor McClurg. Hill did; and McClurg told Hill that because of the tight financial situation ite was inappropri- ate "at this time" to reclassify, and pay out additional money. Hill testified that he relayed that information to Frahm; and he recalled that at the time he did, he did not know of union organization, or if Frahm was in- volved, thus clearly prior to May. On cress-examination Hill reaffirmed that he was told by Sherod or McClurg, and he (then) told Frahm that PI was in a tight financial situation, and that, because of that, we could not reclassi- fy her from part time to full time. Hill testified on other occasions, but in a manner that had the ring of truth to it, that initially he believed it (the reason) that she did not go full time was the finances, and that he had had no problem going to Frahm, and telling her that. Hill testi- fied categorically that there absolutely was not a refer- ence to the Union in that (first) conversation. Although a corroborative inquiry was not made, and Sherod and/or McClurg thus did not corroborate Hill on this particular matter, Frahm did not subsequently refute Hill's testimo- ny that she had received an initial answer on her request before the advent of union organization. I credit Hill in that regard for the above, and other reasons to follow. Thus Frahm testified that she asked in the 16 May conversation if one of the reasons was due to budget cuts and no funding for it; and (inconsistently) that Hill then said partially. (In contrast, Sellers' recollection was that when Frahm asked if it had anything to do with financial reasons, Hill said he could not answer that either.) Ac- cording to Frahm, she then asked Hill if it had anything to do with Frahm being involved with the Union; and that Hill hesitated a little, and said yes. According to Frahm (only) Hill then said, "Well really it doesn't make any difference whether you are involved with the Union or not, because people don't have time to worry about this; they have other things on their mind." According to Frahm (again without Sellers' corroboration), Frahm told Hill that if Hill told her, it would go no further, be- 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause it really did not concern anybody else (The same would appear a wholly inconsistent utterance for Frahm to make in circumstances of Sellers' continued presence.) Frahm relates that Hill said he did not know that be- cause the way people stab you in the back, it would be around town in no time at all; and that Hill then said he could be fired for telling Frahm why they would not re- classify her, when he was not supposed to. In these respects, Sellers has (essentially) confirmed Frahm only to extent of recalling that Frahm asked how much it had to do with her union involvement. Howev- er, Sellers has further testified in a manner wholly con- tradictory to Frahm assertions, namely, that Hill did not answer at all then. Frahm relates that Sellers asked Hill if there was anybody that could tell her why, and Hill said no one. (Sellers corroborated Frahm that Sellers next said, "If you can't tell her the reason, who can"; and that Hill said no one.) Given the above major discrepancies between Frahm and Sellers' accounts, particularly the inconsistency of Frahm's version of a confidential request made of Hill, with known leading union adherent Sellers present, and Sellers' substantial contradiction on the matter of the Frahm-asserted Hill affirmation to Frahm's question of union causation in the Employer's refusal to grant Frahm full-time status and benefits, I conclude neither was stated in this conversation, and I place no reliance there- on. Neither do I speculate as to any similar occurrence at some other conversation between Hill and Frahm, not made subject to complaint allegation, nor directly evi- denced otherwise. Moreover, these clear discrepancies only serve to render the more questionable Frahm's (but not necessarily Sellers') other recollections as to what otherwise occurred in this meeting, especially where un- corroborated, and in conflict with more plausible and consistent testimony of Hill. On the other hand certain of Sellers' own related testimony was less than convincing, e.g., her apparent vacillation as to her own understand- ing of what Hill meant when he said to them that he could not say why Frahm would not be reclassified full time. Hill testified that it did seem that Frahm had asked (about'being reclassified) at least one time later. Howev- er, Hill did not recall telling Frahm on that occasion that he could not give her a reason why she was not reclassi- fied, asserted it was because she already knew the reason (the tight financial situation). Hill also testified that (even) months before Sellers became lead trainer, the group home and apartment managers had been told that the Company was in a very bad financial situation, and that they might have to take some steps to help cut down expenses, including layoffs or a cutback in hours. Hill was sure they ' had discussed the possibility of there being some type of action taken in the future to try to help cut down expenses. Hill recalled an occasion of tell- ing Sellers (albeit othewise left indefinite as to time) that if the responsibility were left up to him he would prefer to cut back all the hours rather than lay off someone. (Sellers did not subsequently refute this testimony of Hill.) According to Hill, it was no secret that things were tight, although a lot of people did not know the specific dollar amount, or just how bad things were. I conclude and find Hill's testimony, in these regards, is persuasively supported of record. Group Home Manager Beeler's testimony (arising in other context) is supportive of Hill that there were early management discussions about developing tight fiscal re- straints. Beeler testified that in such a discussion at a group home managers' meeting in January or February, at which time they discussed a possibility of layoffs, Beeler had asked why they just could not go ahead and cut hours again, as they had (sometimes) in the past, so they did not have to lose staff that they spent a lot of time training. According to Beeler, Sherod said, "We just can't do that this time because of how much money that we are losing out [on] this year due to the Gramm- Rudman cuts." (Beeler explained that his own under- standing was that the Federal Government had cut state funding; the State cut the county; and the county itself was not cutting back.) Hill's testimony of Employer's long-deteriorating fiscal position is fully supported of record. Mather has testified (I find) more precisely that it was in early 1986 that they began to learn of continued reductions from the State of Iowa (contrary to Mather's hope in prior year that there would be some upcoming state relief). Mather testified that probably by May it was evident that they would have to take drastic steps to reduce their expenses. PI ended fiscal year June 1986 with a $20,000 deficit, which was made up from reserves. However, the Em- ployer documents placed in evidence further corroborate that, as of "5/6/87" (sic, but apparently prepared 5/6/86), for fiscal year starting July 1986 and. ending June 1987, PI projected a short fall of $185,250, 73 per- cent of which was based on lost income, and 27 percent arose from increased (fixed) expenses. In dollars, PI's projected lost income amounted to $135,500, 75 percent of which is shown as direct result of public state and county governmental reductions, which Mather noted PI did not control. (There was a $20,000 lost funding of FAP.) The remaining 25 percent was a result of lost in- dustrial opportunities from the private sector. PI asserts generally that both public and private sources of lost income were the direct result of a poor economy in Iowa. In the 16 May conversation, Frahm otherwise relates: Hill at this time was working on what looked to be new work schedules; she asked are we getting new schedules, and Hill said he could not say; and Frahm then asked Hill "are we getting our hours cut," and Hill said that he would not say that either. (Sellers has substantially cor- roborated Frahm in the above respects, in testifying: Hill was making out new work schedules; Frahm asked Hill why he was, and if there was going to be a reduction in hours; and Hill said he could not say.) Sellers recalls and Frahm essentially corroborates that Sellers then said she really did not think hours were of any importance or an issue at this time, it was not the subject. According to Frahm, Hill said, "Well, not now anyway"; and he then said, "hint, hint." Sellers corroborates, Hill said, "Well, they're not yet, but that's not saying that they won't be down the road. Hint, hint.") Hill testified that he did not remember a discussion of loss of hours, or saying "hint, PROGRESS INDUSTRIES hint." In regard to Hill's reworking of schedules, and a related question of reduction in hours and cryptic com- ment of Hill, as mutually corroborated by Frahm and Sellers, I credit their accounts. However, under the above circumstances I find no violation of the Act oc- curred there. (In passing I observe there is some indica- tion of the record that the scheduling conversation oc- curred later, e.g., on 29 May, in Hill's recollection that he was instructed to prepare new schedules after the layoff, and Sellers' `recollection that she was called into the office the next day and informed of her job elimina- tion, which clearly occurred on 30 May. However, the fact 29 May is a Thursday would contraindicate it.) According to Sellers initially, Hill next said he hoped "we hadn't got ourselves into something that we didn't realize we'were getting into by being involved in this or- ganizing committee with the Union." On another occa- sion Sellers relates that Hill said, "I hope you won't regret getting yourself involved in the organizing drive, or organizing committee; and he said, "somewhere down the road you may be hurting yourself worse than helping yourself." Sellers relates she asked Hill what he meant by that. Frahm's version is at somewhat still further vari- ance, viz, that Hill (simply) said he had hoped the Union "would not hurt us instead of help us." Frahm then re- called more directly, "We asked how he [Hill] thought it [the Union] would hurt us." According to Sellers' recollection, Hill then said, "You have a lot of freedom and flexibility now, whereas, if the Unison gets in, you may not have that; and you may lose that, for instance, you wouldn't be able to run home and check on your daughter if you needed to." Frahm's ini- tial recollection was that Hill said, "if a union came in, we would lose flexibility"; and (without Sellers' corrobo- ration) that Hill said, "We would have to punch a time- clock; and, that we would just have a lot less freedom than we do now; or did at the time." (Frahm subsequent- ly clarified that they never have had to punch a time- clock; and, that basically they are on a honor system, and just write in on their timecards the date and hours worked.) Hill testified that he did not remember a discus- sion, ever, about punching a timeclock. I do not credit Frahm's uncorroborated assertion that Hill said in this conversation (essentially) if the Union came in, employ- ees would have to punch a timeclock. Sellers related, in addition to Hill's reference to Sellers not being able to run home to check on her daughter, if needed, during work, which Sellers had done in the past, Hill also said, that if people had other family matters come up, they would not be able to go; and it did not make any difference if people were ill, or whatever, they would stay, because they were going to work their as- signed hours. Frahm otherwise confirmed that Hill had used an example of Sellers' daughter, and Frahm recalled that Hill said, that if she (Sellers) had an emergency at home, or her daughter needed something, she would not be able to go. Frahm also testified that the practice had been a lot more relaxed atmosphere; and, if two staff were working and something came up at somebody's home, they were allowed to leave. (Frahm gave a per- sonal example of previously being allowed to leave for a wedding and return.) 713 Sellers relates that she said that she felt that would probably depend on "what is in our contract, if we got the Union in." Sellers relates that Hill then said, "No, that's going to depend on what we let you have in your con- tract"; and that Hill further said, "As far as I, and other management are concerned, we're going to make sure you don't have that freedom and flexibility anymore." (Frahm corroborated essentially that after Sellers had said most of that would be decided on what we had in our negoti- ated contract, Hill said no, "It depends on what we let you have"! and Frahm further corroborated that Hill then said "that he and other management were going to make sure that we would not have the flexibility we have had in the past.") On cross-examination Sellers also testi- fied that Hill was angry, and he doesn't get angry often; that his face was red; and that she felt threatened by Hill's statement that' she would not be able to go home to her daughter. Sellers denied that she and Frahm were working on Hill at the time. Hill did recall a discussion about flexibility. Hill con- firmed it was on a Friday, and that he and Sellers were working in Progress East's office. Frahm was also present. Hill did not recall how the conversation began; and, although initially testifying that he did not remem- ber a discussion about full time for Frahm in this meet- ing, subsequently testified on cross-examination that Frahm could have spoken on that subject, and he (dust) did not remember it. Hill's earlier reference to initially having no reluctance about going to Frahm, and addi- " tional testimony of later not knowing what or who to be- lieve, imports later, reluctance to speak to the issue of Frahm's reclassification when Frahm again raised it. It tends to support as well Sellers' recollection (essentially) of Hill's noncomment when Frahm again sought to raise the issue. Finally it as well makes more plausible Sellers' and Frahm's recollections of the Hill remark that led their conversation into a further questioning of Hill (es- sentially) as to how he thought the Union might or would hurt them. On the subject of flexibility, Hill recalled that he told Sellers that as far as he know, if a union should come in, and 'a contract be drawn up, as manager of the group home he would be responsible to make sure the contract was followed. He said, if the contract provided that Sell- ers would work from 2 to 11 p.m., with no breaks, or whatever, then he had to abide by that contract. Hill ini- tially recalled that he told Sellers that if her daughter got sick at school, he felt Sellers would not be as flexible as Sellers was at the current time, as far as Hill allowing Sellers to leave. On cross-examination, Hill's recollection was that he said, if Sellers' daughter got sick, or Sellers had some personal business to take care of, that Hill felt he may not have that flexibility anymore to let Sellers come and go as often as Hill was at that time. Hill told Sellers that he would have to abide by what the contract said Hill flatly denied that he ever said that management was going to make sure things were more inflexible. Hill however significantly testified that he told Sellers that he thought things probably would be more inflexible, as far as he was concerned. According to Hill, Sellers replied 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that she was not all that concerned with flexibility if the Union came in and a contract was drawn up, she would abide by the contract. Essentially Hill's version is that his own statements were made in discussion context of a negotiated contract; were addressed to what might occur under governing terms of a contract; though he has (can- didly) acknowledged stating to Sellers that he thought things probably would be more inflexible, as far as he was concerned, thus (essentially) in regard to what he could allow them to do. According to Sellers, but without apparent corrobora- tion by Frahm, Hill also said that he felt since we had started the union drive, that staff people, people that worked together, were being torn apart by this. Sellers countered that she felt that people in residential (group homes) and people in-house (main plant or facility) were actually closer together than they had been before. Sell- ers relates that Hill then said, "Well, you haven't heard what other management people in Progress are saying about you, because none of them care too much for you anymore." Hill has flatly denied that he told Sellers that people did not care for her anymore. In this matter I credit Hill. Hill acknowledged that he knew that Sellers was one of the main, if not the main, driving forces behind the organizing effort, but testified he treated her no different on that account. There is no allegation or evidence oth- erwise of any harassment of Sellers by Hill. To the con- trary, on cross-examination Hill testified (and without ap- parent contradiction) that Sellers on several occasions had asked him why management was so afraid of the Union and the organizational effort. Hill said he honestly did not know; and he could not give her any valid reason why they were. According to Hill, Frahm, like Sellers, could not understand why everyone was so up- tight about the union organization activity, and why afraid. Hill also told Frahm he was not, but could not speak for anyone else. Neither Sellers nor Frahm has denied Hill's assertions in these respects. It is frequently a fine line to be discerned in distin- guishing circumstances warranting an inference that an employer supervisor and/or agent is merely advising em- ployees ahead of time of potential adverse contract con- sequences, beyond the employer's control, which may eventually flow from the employees' selection of a col- lective-bargaining agent for their proper consideration in making up their mind how they should cast their ballot, or whether the circumstances warrant conclusion that the employer's supervisor and/or agent has impliedly threatened employees with inevitable likelihood that ad- verse consequences will flow to employees in retaliation for their having selected the union as their collective-bar- gaining representative, cf. Pggly Wiggly, 258 NLRB 1081, 1092-1093 (1981), enfd. 705 F.2d 1537 (11th Cir. 1983). See and compare where that is found to have been no contract background in the discussion, Brunswick Corp., 282 NLRB 794 (1987); and see also Aero Tech Laboratories, 269 NLRB 705, 706 (1984). Here Hill's tes- timony was more than summary denial. It was in many respects plausible and candid. In contrast, in a number of instances Frahm's and Seller's testimony about content of this discussion has appeared demonstrably unreliable. In general, concerning content of this conversation, I have credited Hill. First I conclude and find that a contract was part of this conversation . Sellers has even asserted she brought it up. I further find that at first Hill told employees Sellers and Frahm (essentially) that if a union came in and a contract was drawn up, he would be bound by the con- tract's terms, as well they, and he may not under the terms of the contract have as much flexibility to let Sell- ers (and others) go to handle their personal matters and affairs as often as he was at the present time Moreover, in the face of an explicit Hill denial , I remain uncon- vinced that Hill spoke to Sellers and Frahm in terms of a flat declaration of the Employer's intended unilateral re- taliatory action to be taken, if employees selected the Union to represent them In that regard , I simply do not believe the central contrary assertion, and reject as in nature an exaggerated recollection or embellishment Frahm's and Sellers' recollections, specifically denied by Hill, that Hill said in regard to negotiation of such con- tract that he and management were going to make sure that employees did not have the flexibility they had had in the past. Yet I also find, essentially on Hill's admis- sion, that Hill did later state that things probably would be more inflexbile for him in regard to what he could contract changes, without a careful phrasing of the basis in objective fact beyond the Employer's control, Hill passed over the line of a supervisor's permissible person- al prediction as to what could possibly happen to employ- ees' on their selection of a union to represent them to an (essentially) coercive statement that under terms of a re- sulting contract, he probably would not have the flexibil- ity to allow employees to do the personal things that he had in the past; and particularly so, where as here, Hill had drawn Sellers' attention specifically to his previous accommodation of her work release needs as related to her daughter. Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 ( 1969). That is why Sellers, though a strong union adherent, has testified she felt threatened by the reference to her daughter, which testimony I add had the ring of truth to it, and which addressment accounts as well for Sellers' assertions of Hill's consternation in the discussion . By such Hill conduct on 16 May, and by that only, I conclude and find that Respondent has threatened and coerced employees that, if employees chose to become represented by a union, it would prob- ably not be able to allow employees under a resulting contract the personal work flexibility they currently en- joyed and, thereby, Respondent has interfered with, re- strained, and coerced employees in violation of Section 8(a)(1) of the Act. 6. The threats and coercive statements allegedly made by Progress West Group Home Manager Daniel Beeler a. More rigid, less flexible working conditions The complaint alleges that Group Home Manager Daniel Beeler, at one of the group homes in mid-April, date unknown, threatened an employee with more rigid, PROGRESS INDUSTRIES 715 less flexible working conditions if employees chose to become represented by the Union. PI has employed Georgia Carr for 3 years, initially as an overnight aide for 8 months; then as a trainer for 18 months; and next as a lead trainer (at $4.90 per hour) under the supervision of Progress West Group Home Manager Dan Beeler. Carr's position of lead trainer was eliminated, effective 8 June. Carr however continued to work as a lead trainer until an employee on leave of ab- sence returned to work (apparently) on 8 July. At that point Carr, who had (previously) exercised bump right under PI's layoff plan, thereafter worked for a month (or more) as a redemption driver (at $3.75 per hour). PI cur- rently employs Carr as a work activity program instruc- tor (at $4.33 per hour). Carr recalled that in mid-April, Carr had called Beeler (at work) to inform him that she was going to be late be- cause her babysitter was not at home; and Beeler said fine. Carr relates that when she got to work she and Beeler were alone in the office. According to Carr, Beeler said that if the Union was in, she would not be able to do that; and Carr replied, "I don't want to hear about the Union." Carr offered explanation that the Union's or ganizing committee had told her not to discuss the Union at work. On cross-examination, Carr acknowledged that she was not very good with dates; but she then (essen- tially) reaffirmed mid-April union activity, in asserting that it was about 2 months before her affidavit (given on 18 June) that she had signed a union card, and wore a union button to work, though immediately relating she did so, but once, and on occasion when Beeler was not at work. No other employee appears to have openly worn a button earlier than (as found) 30 April. Carr oth- erwise recalled that she was about 5 minutes late on the day in question. Beeler testified that he had first learned of the Union's campaign at PI in the last part of April. (Beeler's recall would appear more plausible on clear weight of credible evidence of record.) Beeler also testified that Carr had not worn a union button that he had ever seen. Other- wise, Beeler recalled: that he was in a meeting with Sherod one day when he received a call from Carr about 12:55 p.m.; that Carr informed Beeler that she was going to be late because her babysitter was not at home; and that he said okay. Beeler relates that he left the meeting with Sherod, in order to cover for Carr. Beeler's version is that Carr arrived about 17 minutes late; and Carr arrived hollering that her babysitter was not home, and that she would have to find a new one. Beeler told Carr, "You can't keep on coming in late be- cause of your babysitter"; and Carr replied, "Well, I'm not late that many times." According to Beeler, Beeler then said, "What would you do if you was on a time- clock"; and Beeler added, "I've got documentation on how many times that you've been late for work." Al- though Beeler relates he had documentation of Carr being late a few times, he also readily acknowledged that Carr was usually prompt. Beeler flatly denied that he mentioned the UAW at any point in this discussion. In total context Beeler's version appears the more plausible; and I credit it. b. Less desirable working conditions The complaint alleges that Beeler, in one of the group homes, in the first week of May, threatened an employee with less desirable working conditions if employees chose to become represented by the Union. Carr relates that in early May, Carr called Sellers on the phone to tell Sellers that Carr was not for the Union anymore because Beeler had been treating her very badly for quite some time since the -organizing began. Sellers did not corroborate Carr as to placement of such call or its content. Carr asserts, in other context, she had continued union interest and communication with em- ployees about the Union. Carr further relates that while at work, she called Beeler at home. Cross-examination clarified that (lead trainer) Carr had called Beeler at home about certain matters happening at the Progress West group home. Carr nonetheless asserts that in this conversation Carr also told Beeler that she was not for the Union anymore. On cross-examination Carr related that's when she brought the subjects up that she was not fitting in any- more; and that (co-employee) "Luanne" (sic) Schaeffer had talked her out of it. According to Carr, Beeler told Carr that he thought Carr was doing the right thing; and that she finally-got smart. Carr has Beeler next say, "By the way, you won't be able to go cash your paycheck any- more," repeating (and adding) that she would not be able to cash her paycheck anymore while she was on duty, if the Union was in. Carr explained in regard to paycheck cashing that she came to work at 2 p.m. on Friday; and Beeler brought back the checks at 3 p.m. If Carr completed the shift, the bank would be closed. However, Beeler would let Carr go cash her check, and come back, without being docked for the time. On cross-examination Carr affirmed that she was still for the Union after this conversation. Though testifying that she attended only one union meet- ing, Carr asserts that she talked with other employees about the Union. Beeler confirmed a call from Carr at his home, but places it after (the 30 May) notice of layoff (and lead trainer job elimination). However, Beeler otherwise ap- pears to have acknowledged there was an earlier occa- sion when Carr had told him that she was no longer for or active for the Union. -Beeler, asserts he did not know what to believe; and that he really did not respond to her statement at the time. In further support of Carr's version of the above con- versation, Carr initially testified Beeler and she used to get along real well; that when the (union) organization began, Beeler would not talk anymore, or carry on casual conversation; and that after (her call disavowing interest in the Union) they got along a lot better. On cross-examination Carr receded, and conceded that Beeler was treating her rotten a month before that. More significantly, on cross-examination Carr denied that as of 28 May she did not get along with Beeler, asserting she got a good evaluation from Beeler. The Employer, how- ever, introduced Beeler's contratestimony and supporting (Carr) evaluation (E. Exh. 4), which fairly reflects that although Carr's work was rated good, Beeler rated Carr 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD deficient in at least two areas, viz, an unwillingness to take constructive criticism and her attitude. Carr offered further explanation that she got upset when reporting to the group manager; and then asserted that she had received earlier good evaluations. Beeler, however, later testified that he has had problems with Carr ever since she started; and that the biggest problem was Carr's attitude. Although the parties have offered much evidence bearing on their different views of certain difficulties (multiple staff complaints) Carr purportedly had with employees, one material face bearing on Carr- Beeler earlier relationship appears undisputable, namely, that on 21 January 1986, Beeler had awarded Carr a letter of probation, which was approved by Human Services Manager McClurg. I conclude and find that Carr's various supporting assertions made of getting along with Beeler until the union organization, and being treated harshly thereafter until she renounced the Union to Beeler, must be simply wholly rejected. This is so, whatever may have been the actual facts as-to the under- lying January 1986 incidents, which are not otherwise of complaint issue here, and thus need not be addressed. Beeler has otherwise testified that he recalled discuss- ing the subject of check cashing (only) one time, but it was with another employee, Pauline Berger, not Georgia Carr. Beeler further testified that he did not think he ever brought up the subject of check cashing to Carr; and if he had a conversation with Carr about it, he simply did not remember it. In that respect Beeler asserts that it was not a general company practice that employ- ees could go to the bank and cash their checks. Beeler explained that it was just that when Carr came in to pick up her check, it would be late when she got off work. The bank would (not only) be closed for that day (Friday), but he knew her bank was closed Saturday as well. Beeler relates, just as a courtesy thing, he let Carr go cash her check, and would have her come right back. It appears Beeler would let others do so also. According to Beeler, Berger was in the office one day discussing how they were relatively free to run down, cash a check, and come back. (On cross-examination Beeler amplified that at the time Berger had said, "Geor- gia [Carr] doesn't seem to understand the flexibility we have now, we can just come and go as we please.") Berger spoke relatedly something (in contract) about a nursing home in Newton, where she had formerly worked. Beeler similarly had previously worked at Woodward State Hospital School in Woodward, Ohio, where employees are represented by (another) union, and where there was a timeclock. Beeler recalled telling Berger yes, and (essentially) the same thing, that "we [Woodward employees] just couldn't clock out whenever we wanted"; they weren't allowed to come and go as they pleased; they clocked in at a certain time, clocked out for dinner, and better clock back in when the half- hour dinner break was over; and they clocked out when it was time to go home. Beeler testified that he was just basing his statements on his own personal experience; and Beeler denied that he indicated to Berger that if the Union (UAW) came in, there would be a timeclock at PI. (Berger was not called as a witness by any party, and did not testify.) In regard to an incident with Berger, Beeler's account is not corroborated. More to the materi- al point, on the one hand, certain of Carr's assertions in support of her version are significantly weakened by her own inconsistency, and by reliable contradicting docu- mentary evidence, although Beeler, in this instance does not appear to have specifically denied ever telling Carr that she would not be able to cash her paycheck any- more while on duty if the Union was in, though he has testified to having no recollection of ever having brought up the subject of check cashing to Carr. c. Less flexibility in work schedule The complaint further alleges that Beeler at one of the group homes, on 19 May, threatened employees with a loss of flexibility in their work schedule, if employees chose to become represented by the Union. On review, I have been unable to discern any evidence offered in sup- port of the above allegation, at least none not already considered as appearing on the record more related to some similar allegation at other time; and the parties have pointed to none in their briefs, respectively. I shall recommend that this complaint allegation be dismissed. d. Withheld wage increases The complaint alleges that Beeler, at one of the group homes, 23 May, told an employee that wage increases had been withheld because employees engaged in activi- ties for and on behalf of the Union . With regard to this allegation it also appears the General Counsel 's offered evidence is deficient . In that regard it appears that only Respondent's witness, Program Instructor L. A. Schaef- fer has relatedly testified that there was an occasion when Beeler said that they could not do anything now; there could not be any raises or anything because of the union activity going on . Schaeffer did not recall whether that was said in the presence of Carr or not; but Schaef- fer recalled on cross-examination that it was said plausi- bly sometime after the Union has started , that everything was put on hold. It appears any such statement as Beeler may have made to Schaeffer (or other employees) not shown relat- ed to planned or announced raises, viz , that raises were being put on hold in context of the advent of union ac- tivity, did not violate the Act. Cf. NLRB v. Exchange Parts, 375 U.S. 405 (1964); and see also and compare At- lantic Forest Products, 282 NLRB 855 (1987). I shall rec- ommend that the complaint allegation that Beeler on 23 May told an employee that wages had been withheld be- cause employees engaged in activities for and on behalf of the Union be dismissed for lack of sufficient evidence appearing of record to support it. e. Allegations of the Employer 's statement of change of practice of layoff from the basis of productivity to seniority; and statement (essentially) that but for the employees' union activities employees would not have been laid off but would have worked reduced hours The complaint alleges that on 30 May, at one of the group homes, Human Services Manager McClurg told an employee that Respondent had changed its practice and laid off employees on the basis of seniority, rather PROGRESS INDUSTRIES 717 than on the basis of productivity , because of employees' activities for, and on behalf of, the Union. The complaint further alleges that, on 4 June, at one of the group homes, Group Home Manager Beeler told an employee that employees would not have been laid off but would have worked reduced hours if the employees had not en- gaged in activities for and on behalf of the Union. These are the last of the complaint's allegations, but the first to introduce layoff circumstances directly, and which also introduce facts bearing on certain challenged ballots of laid-off trainer Winifred Barwegen and laid-off Ware- house Maintenance Supervisor (unit employee) Rory Larsen. Some, but brief background of the nature and scope of the layoff (which itself is not in issue) would appear in order. Sherod testified that he was involved in the employ- ment reduction decision, and how it would be carried out. Twelve staff jobs were eliminated , as follows: the three lead trainer positions in Progress East, West, and North .(occupied by Janice Sellers, Georgia Carr, and Marlene Andrews); two FAP positions (lead FAP trainer Mike Stech and trainer Kristi Beeler); two program in- structors (Patty Hamilton and (seemingly) Angie Pleur); one production secretary (Brenda (Dee) Jones); one driver (Jim Holloway); one extended employment aide (E. Gilroy); one redemption aide (seemingly R. Babson); and one janitorial position (Dave Cooper). In all, 12 indi- viduals were to be laid off. According to Mather's testi- mony, the layoffs, as in the past, were accomplished by seniority. Sherod relates that the 12 least senior (full- and part-time) employees were identified. Individuals occu- pying the eliminated positions were afforded an opportu- nity, in accordance with their seniority , to bump into the 12 least senior (or open/new) full- or part-time positions (at least eventually).6 The layoffs as announced were scheduled to take effect on 8 June . Mather testified that the three lead trainer jobs were eliminated because it was believed that elimination of those positions, all positions, remained eliminated as of 17 July election day, except that the part-time FAP trainer position of Kristi Beeler, contin- ued under circumstances to be discussed infra, in connec- hon with her challenged ballot. (1) Unalleged statement of changed layoff practices Although Sellers testified that she thought she first learned of the elimination of her lead trainer job on 17 May, recalling it as the day following her earlier de- scribed conversation with Hill on 16 Hill on 16 May, clear weight of evidence wholly convinces me that the 6 There was one open and one new job However, apparently two em- ployees, namely, Monty Trotter, an overnight aide in Progress North, and Kermit Terry, a part-time aide in a group home, were initially inad- vertently left off the list dub to a clerical error On discovery , they were also made subject to the bump of those more senior whose jobs were eliminated Laid-off employee Winifred Barwegen was initially upset over the apparent escape from layoff of Trotter whom she viewed had less seniority than her Indicative that Employer had not ' learned of JCDHS cancellation of PI FAP (at least) much before June is the cir- cumstance that Kristi Beeler's part-time job appears on the list that was presented to employees as a bumpable join as of 30 May (E Exh 9). Equally clearly, however, Stech's lead trainer FAP job was eliminated that same day position eliminations and layoff procedures were first an- nounced by Sherod and McClurg to those employees af- fected on 30 May. McClurg, Hill, and Beeler became aware of the lead trainer job eliminations the day before, thus on 29 May. Sellers otherwise relates that she re- ceived a call (I find) on 29 May from McClurg to come in for a staff meeting the next day, which she did at 10 or 10:30 a.m. (30 May). Both Sherod and McClurg were present. Sherod informed Sellers that because of cuts in funding this year, they had decided to eliminate the lead trainer position. They showed Sellers a list of 12 posi- tions (3 of which had been already taken by individuals with more seniority than Sellers, including Carr and Stech). Sherod told Sellers that she would have to bump someone (of the remainder) or take a layoff. Sellers re- lates Sherod also said, this was the way they had to do it because of the Union. However, according to Sellers, the word productivity was not mentioned to her by Sherod or McClurg. Sherod denied he told Sellers he had to do the layoff that way because of the Union. There is no separate complaint allegation as to Sherod 's violation in this re- spect on 30 May, as there is on McClurg. Neither is there one concerning 17 May, in relationship to Sellers' recollection . In light of the above, and Sherod's and McClurg's credible testimony that follows, I do not credit Sellers' recollection as to a Sherod statement that this was the way they had to do it because of the Union. Sellers otherwise relates the jobs paid much less; and they were quite different than what she had been doing. Sellers also asserts that she observed that 3-4 of the jobs were occupied by client-staff, i.e., clients who had worked their way up . Sellers told Sherod she would not bump anyone, especially not a client . Sherod asked Sell- ers, "Are you saying you will take a layoff." Sellers re- plied, "No, I want you to make the decision, what you want me to do." Sherod said he would not make the de- cision. According to Sellers, Sellers said, "We have a problem then, because I'm not going to make it [the de- cision]." As Vice President Sherod is responsible for personnel matters. Sherod discussed layoff procedure with Sellers (and others) whose jobs were eliminated (but not those who were in turn bumped). The conversations were (generally) held in the small conference room at the main facility. Sherod established that the meeting with Sellers was on 30 May, with convincing documentation viz no- tation of Sellers' "bump" rejection, signed by Sellers, Sherod and McClurg on 30 May. Sherod' and such docu- mentation establish also that McClurg was present as (still) department manager of residential services. Sherod confirms Sellers' account of the announcement of her job elimination, and the scheduled layoff; a pre- sentment to Sellers of a list of available jobs; a bump op- portunity explanation; and Sellers rejection, except that Sherod relates that Sellers said that because it was man- agement's decision to eliminate her position , she would not (select) bump, and they (management) should choose one of these other positions for her. Sherod confirmed that he said he could not do that and the bump selection was her right as an employee. When Sellers continued in 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD her stated position, that she would not make the selec- tion, Sherod told Sellers that he needed to go on to the next person in seniority, and let them have a chance to bump. Sherod entered a confirming notation on the back of the list proffered Sellers, of Sellers' refusal to choose which is in evidence (as E. Exh. 9) Sherod has acknowledged that he told Sellers, "We tried to choose the way to be most acceptable to the Union, by order of seniority." Sherod further explained at hearing "we wanted to do it the best way possible not to have unfair labor practices charged against P.I." However, as noted earlier, Sherod denied that he told Sellers in this meeting that he had to do it that way be- cause of the Union; and Sherod further testified that he never told Sellers that PI layoff procedure had to be done the way it was being done because of the Union. McClurg essentially corroborates Sherod. McClurg testified that Sherod said one of the reasons "we had chosen seniority as a basis for laying people off was be- cause we believed it would be more acceptable to the Union." Significantly, McClurg also corroborated that there was no statement made by Sherod as to other methods (e.g., productivity). Mather generally denied that seniority was used in the layoff instead of productivity because there was a union active in trying to organize the employees at PI. Al- though Sellers testified she had never been involved in a layoff before, Mather testified that the last layoff there had been 2 years earlier (June 1984). That layoff, accord- ing to Mather, was based on seniority, with the Employ- er holding the belief that those there the longest were probably the most flexible. On cross-examination Mather acknowledged that PI did not have seniority written down, but nonetheless reaffirmed it had been followed in that those hired last in the layoff 2 years ago were the first to go; and Mather futher testified that to the best of his knowledge, the prior layoff included both full- and part-time, and that the full-time employee had bumped (into) part-time positions, and lost benefits. The General Counsel has not contracontended that the last layoff was not 2 years earlier; nor that it was not based on seniority; nor questioned the Employer's procedural application of seniority at that time. Indeed certain Stech and Maston evidence supports seniority (and job classification) were the Employer stated layoff factors, both previously, and presently, even if, as appears conceded, not stated as a layoff criteria explicitly in the Employer's written policy, infra. Group Home Manager Hill corroborated that the day before Sellers was informed (of lead trainer job elimina- tion), he was so informed. Hill testified in that regard that the group home and apartment managers were at that time brought together and informed that the lead trainer positions would be eliminated. Although certain of Hill's other testimony appears in part confused, e.g , on the point of people who occupied lead trainer posi- tions being laid off, it is clear of the (four) lead trainers affected that only lead trainer Sellers was actually laid off. Hill confirmed that there were no openings at his group home, and Sellers was offered positions elsewhere (2) Other layoff considerations relevant to challenged ballots Although Sherod has testified that as of election day (17 July) PI did not have any specific day within which (it planned) to recall any lead trainer, nor had any antici- pation at that time any lead trainer would be recalled, Sherod otherwise testified that (all) the layoffs were con- sidered temporary, and that PI was then anticipating each and every layoff position would be recalled in 6 months. On 3 June I find Sherod sent Sellers a letter stating that because she had not chosen a position, she opted by default to take a layoff. Sellers was laid off on 8 June. On 3 July Sherod sent Sellers (and sent or presented to others affected, including challenged voters Barwegen and Larsen) a letter advising of the Employer's estab- lished "Guides to Procedures" governing staff positions eliminated and staff layoffs The letter specifically in- formed Sellers (and other employees) of the Employer's written policy that. 1) Employees will be carried on the recall list for a period of one year following layoff. While on the recall list employees are required to report their availability for recall to the Vice President every thirty days. Employees who fail to check in with the Vice President or who fail to report to work within three business days after recall shall lose their recall rights, seniority, and shall be considered as having quit voluntarily. 2) Employees will be recalled in the reverse order of layoff. Notice of recall shall be sent by registered mail, return receipt requested, to the most current home address furnished by the em- ployee to the business office. Sellers (Barwegen and Larsen) conformed to the above notice requirements. Sellers voted in the election of 17 July, without challenge. Laid-off employee Barwe- gen voted and was challenged by the Employer, and laid-off employee Larsen voted and was challenged by Union. Sellers was recalled on 11 August, and at the time that Sellers testified at hearing, PI employed Sellers as a janitorial supervisor, a (stipulated) nonsupervisory (unit) position though there is some indication of record that she and Stech were no longer employed by end of hearing. (3) Alleged statement of changed layoff practices PI initially employed Winifred Barwegen in the summer of 1985 as a part-time overnight assistant (aide) in Progress North at rate of $3 50 Barwegen relates she was initially under the overall supervision of Dan Westin, and more recently Elroy Van der Ley During the same summer of 1985, Barwegen worked approxi- mately 110 hours for people on vacation. In performing this work Barwegen worked under the supervision of Progress East Group Home Manager Beeler. During the same summer, Barwegen had worked for Iowa State DHS in field placement work with sexually abused chil- dren. Barwegen managed a small caseload, in conjunc- PROGRESS INDUSTRIES 719 tion with other social workers. Barwegen (apparently) thereafter obtained a B.A. degree in social work from the University of Northern Iowa Barwegen readily ac- knowledged that her goal was full-time employment with Iowa State DHS, but at the time (presumably) of receiv- ing the degree, DHS had a freeze on employment. Barwegen obtained full-time employment at a youth center. Sometime thereafter, in March, Barwegen applied to PI for a full-time trainer position, but accepted a part- time (weekend) trainer position (at $3 50) which alone was available to her at the time. However, PI shortly thereafter offered Barwegen a full-time trainer position (at $4 33 an hour), which Barwegen promptly accepted, effective 1 April. On accepting this full-time position, Barwegen resigned from her other jobs At this point in time Barwegen was effectively and solely employed by PI as a probationary full-time trainer at Progress North, under supervision of Progress North Group Home Man- ager Rich Huffman The record reveals that Barwegen had less overall (full-time) seniority than Larsen Barwe- gen was not active for the Union until after her layoff. On 30 May Human Services Manager David McClurg came to Progress North and spoke with Barwegen in the office at 2 30 p.m According to Barwegen, McClurg in- formed Barwegen that her position had been filled by Marlene Andrews. It will be recalled that Andrews was formerly the lead trainer (an eliminated position) in Progress North. Barwegen said, "What?" and when McClurg repeated it, Barwegen again asked, "What do you mean." McClurg in turn asked, "didn't you get a letter " Barwegen inquired what letter McClurg told Barwegen she was supposed to have received a letter (essentially) explaining some of the things going on, the budget cuts, PI's financial difficulty, and reductions; and that her position had been filled by someone else Barwe- gen asked what would be her last day; and McClurg re- plied 8 June. In response to a leading question whether there was any discussion of seniority versus productivity, Barwe- gen then related that she asked McClurg why she had been laid off, and that McClurg said that due to budget cuts and financial difficulty, she would be eliminated from the position, but adding (layoff) clarification, some- one would take her spot According to Barwegen, McClurg then said, becaue of the union involvement, "we have to eliminate people by seniority " Barwegen recalls she replied, "That's only fair." However, Barwe- gen further relates that McClurg then went on to say, that if it was based on Progress' determining how to do this, people would be eliminated via productivity. Bar- wegen acknowledged that McClurg did not mention Barwegen's productivity. According to Barwegen this was the only time seniority came up (summarizing) based on the fact the Union was involved; it had to be done seniority of positions; the last 12 hired were affected, and if PI had its way, it would do it based on productivity McClurg confirms that he spoke to Barwegen on the same day (30 May) that they (earlier) notified approxi- mately 12 employees that PI had to eliminate their posi- tions McClurg confirms also that he went to Progress North and spoke to Barwegen privately in the office McClurg told Barwegen that because of budgetary prob- lems for the coming year, it was necessary to lay off some people, and she was one McClurg testified (plausi- bly) that Barwegen was shocked and surprised. McClurg relates he then told Barwegen that they were laying people off on the basis of seniority, that that was a good way to do it, a method acceptable to the Union; and (on cross-examination) one method to do it, probably the most, or more acceptable to the Union. McClurg has also acknowledged that he told Barwegen that they were not laying people off on the basis of performance How- ever, McClurg has flatly denied that he told Barwegen, respectively that the layoff procedure had been changed because of the union campaign or that PI had to elimi- nate by seniority or that, if PI had its way, layoffs would be by productivity. McClurg testified further that he did not tell any em- ployee of PI that PI had changed its position and laid off employees on basis of seniority rather than productivity because of the "Union's" (sic, but in context, employees') activities for and on behalf of the Union, nor anything like that, and neither did he say, if it were not for the Union, there might be other handling options available. On cross-examination, McClurg reaffirmed that he told Barwegen the method was by seniority and that one of the reasons for it was it would be acceptable to the Union, or PI believed it would be McClurg further testified, compatibly and consistently, that he was notified the day before who and what posi- tions were to be laid off/terminated; that the list was prepared by Mather and Sherod, that he was not aware of any PI-union discussions about the layoff (nor is there any evidence presented there were any); that there had been layoffs or reductions in available work hours in the past, but not since he was there (August 1985); and that although he testified he was not informed of what the practice had been, McClurg has also testified that it was his understanding that seniority was the basis of layoff in the past. McClurg had no recollection of discussing re- duced or cut hours with Barwegen I conclude and find McClurg's above testimony is internally consistent, com- patible with the clear weight of other determined facts of record, and credible. (4) Further evidence bearing on the challenged ballot of Barwegen It is convenient to presently address the remaining facts relevant to Barwegen's challenged voter status. Barwegen testified that she asked McClurg when she could anticipate being called back and that McClurg (no- tably consistent with Sherod's testimony) told Barwegen that things may pick up in December. Barwegen howev- er said, "I thought Summer was a good time for human services type things to pick up." Barwegen relates McClurg responded, but she could not recall what he said, explaining she was angry, and really was not listen- ing (Employer's witness Lou Ella Schafer has testified to her 6-year experience of the Employer's regular re- trenchment in the summer, though usually by reduced hours.) Barwegen however has recalled, and testified, that in this conversation McClurg mentioned some type of grant 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that was supposed to be coming up in the fall; and that (as she recalled it) five options were going to open up, one (materially) a casework-type position. Barwegen asked McClurg, "Do your current caseworkers have BAs or Masters' degrees"; and when McClurg replied BAs, Barwegen said, "Oh, that's right up my alley"; "I have a BA in Social Work." McClurg asked Barwegen if she had any experience. Barwegen answered, "yes, I do " According to Barwegen McClurg then said, "I'm not sure whether you are qualified." McClurg recalled (erroneously) that Barwegen was laid off effective the end of June McClurg otherwise tes- tified that Barwegen's work was satisfactory. McClurg confirmed that in the same (30 May) conversation, he spoke to Barwegen about three jobs opening up. Though McClurg could not recall if PI had already received notice (award), McClurg did further confirm that he told Barwegen they anticipated three positions on a grant written (apparently bid) in February, that she, hopefully, might look into McClurg testified the positions were: a case manager (apparently further described as a case worker or counselor); a work therapy specialist; and a community training supervisor McClurg also (essential- ly) confirmed Barwegen's recollection, in testifying, that he told Barwegen he was not familiar with her qualifica- tions, nor did he recall what they had put into the job descriptions. On redirect McClurg related that as of 17 July (elec- tion day), as manager, there was no reasonable expecta- tion that Barwegen would return to work there. McClurg has also testified that they ended up hiring a current in-house employee without a college degree, but extremely well qualified for the case manager position, before going to the layoff list However, McClurg has otherwise testified that the election had nothing to do with it, that he believes it was an open question (at the time) whether Barwegen would be recalled ; and she was still subject to recall McClurg explained his mention of the (potential) jobs to Barwegen , as being done because he was concerned about her being without a job, or posi- tion, and it would provide her with an opportunity to apply, if suitable, for an opening. The Employer has not established that Barwegen was not suitable by education, training , and experience for the job(s) The record does not identify the employee or what position that employ- ee occupied prior to assignment to the above (new) case manager position . In any event , such postelection devel- opments would appear immaterial. According to Barwegen, in the 30 May conversation, McClurg also offered Barwegen a (listed) sewing posi- tion at $3 43 an hour, but McClurg advised Barwegen that that job would be just a temporary job, a few weeks; and that Barwegen would also have to check on the sewing job with Production Manager Bartello. Barwegen told McClurg she might check into that; and she did, at least to extent of determining that the job offered was a staff job of sewing labels in caps, and her benefits would be (available) to her only through her last day otherwise. An hour after her conversation with McClurg, Group Home Manager Huffman hand-delivered to Barwegen a layoff letter dated 29 May After formally receiving the layoff notice, Barwegen requested and received an eval- uation of her work . According to Barwegen 's (seeming- ly) uncontested testimony, Barwegen received an excep- tional rating as a trainer. On cross-examination Barwegen acknowledged that she received a second job offer from Huffman before she was laid off Huffman asked Barwegen if she would be willing to work for people going on vacation . Barwegen inquired about the hours . Huffman told Barwegen it would be a total of 56 hours, limited to a week, or 7 days. Barwegen testified convincingly that the work was to take place in the period approximately 30 June to 8 July. Huffman also told Barwegen the pay rate would be $3.50 (instead of the $4. 33 Barwegen had been receiving) and no benefits Barwegen testified that she was angry because PI would not pay her $4.33 rate; and that she told Huffman she did not think it was quite fair, but she would think about it . According to Barwegen Huffman called her in the second week of her layoff (16-20 June), at which time she told Huffman no. As noted, Huffman did not testify . I credit Barwegen's account as to the cir- cumstances of the second job offer (essentially) limited to a total of 7 days' work; and that it was declined, effec- tively in the third week of June, or second week of her layoff. Moreover, I am convinced on the weight of cred- ible evidence that Barwegen was laid off on 8 June, and the second job offer was not only limited and temporary, but was not to start for 3 weeks. In the interim, indeed right after her layoff by PI, Bar- wegen began sending out resumes. She sent out 13 in 1 day. Barwegen also applied for a few positions through the Iowa State DHS. Barwegen initially obtained week- end (Saturday and Sunday ) employment through DHS on a 10-week pilot project involving an operation of a drop-in center for chronically mentally ill people. The project operated in Jasper County Barwegen recalled that she began working there on the weekend prior to the election, thus commencing Saturday , 12 July. (This DHS project was subsequently dropped after the com- pletion of the 10 weeks, for lack of funding.) More sig- nificantly, Barwegen's (essentially) best recollection was that she obtained this employment about the third week of her layoff (thus 23-27 June) About this same time, Barwegen also obtained an interview for another (full- time) DHS position , and the interviewer told Barwegen at that time (only) that it (DHS) would consider her for that position , and would let her know It may be ob- served in passing that the DHS pilot project work com- mencement would not have interfered with Barwegen's second temporary job offer from Huffman , had she ac- cepted it, nor likely with the first temporary few weeks sewing job. There is conflict in the evidence as to a third job offer that Barwegen has acknowledged she received, from Beeler. According to Barwegen, during the first week of her layoff (thus 9-13 June) she received a call from Beeler. Barwegen relates that Beeler offered her 20 hours of em- ployment per week to fill in on nonpermanent, vacation- type positions Barwegen inquired of Beeler if he had called others, and Beeler told Barwegen that she was on the bottom of the list Barwegen told Beeler that she did not know; and that she was getting the bad end of the PROGRESS INDUSTRIES ' 721 deal. According to Barwegen, Beeler told her, that if she did not take it, someone else would. Barwegen told Beeler that she would think about it, but acknowledges that she did not get back to Beeler. Barwegen offered plausible explanation that she felt with her education and background, she had a better chance going out to the community to find a job with better pay and benefits. Barwegen has testified that she had no job offer at this time, but (ambiguously) that she was waiting to be called to an open position. In a number of respects (pointedly timing and amount) Beeler was confused and/or unsure in his recollection about speaking to Barwegen. Although at first stating he bad a conversation with Barwegen about work before her layoff, Beeler subsequently recalled he had a conver- sation with Barwegen after her layoff, but then could not recall if it was in June, July, or (even) before the elec- tion, though he did recall it was on a Friday that he called Barwegen. Although initially recalling he had only a few hours available, Beeler later appeared to recall there was one to two, then seemingly more 4-hour shifts, in recalling there was one during the week, and one, then some on the weekend. Otherwise, Beeler re- called only that he had (indefinite) number of hours, but confirmed that the work available was to be scheduled for each week; that he called Sherod who told him that Barwegen was next in line for residential work, though he did not know why Sellers was not called; that he knew that Barwegen had been an overnight aide, and had worked for him on call, two to three times; that he told Barwegen the schedule over the phone; and that he did not know what Barwegen had been working. Under the circumstances of Beeler's apparent unsureness as to time of the conversation, and the details of the schedule of hours, I find Barwegen's recollections in these areas the more reliable, and I generally credit them. However, in contrast with the above areas of indefi- niteness, Beeler recalled much more definitively that when he spoke to Barwegen he had told her that he knew she was upset by what had happened, but he had some hours available if she wanted them; and (on cross- examination) Beeler acknowledged significantly that Bar- wegen said, "It depends on what it is." Beeler went through the schedules. Barwegen then said she did not know if she wanted them. Beeler told Barwegen to think about it over the weekend, but to please let him know by Monday or Tuesday, because he was going to need to fill the position for the next weekend, so he could have staff coverage. On the basis of above-credited accounts and job rela- tionships it appears more likely, and I fmd, that Beeler called Barwegen on 13 June (Friday), requesting that Barwegen let him know her answer on 16 or 17 June (Monday or Tuesday) as he needed to fill the position for the weekend commencing 20-21 June. Beeler testified (and Barwegen does not dispute) that Barwegen did not call Beeler back. Although Beeler initially denied that he told Barwegen that if she did not take it, someone else would, on other occasion Beeler acknowledged that he told Barwegen that she was next on the list to call; and that he needed to know if she wanted some time (essen- tially) working for him. Beeler then acknowledged that after: Barwegen said he did not know, he told Barwegen to do him a favor and give him a call back so he would know for sure; and on this occasion related that he also said, "Otherwise I'm going to have to go to someone else because I can't leave the position open." I am con- vinced and I find that all three jobs were offered and de- clined by Barwegen by no later than the end of June. The Employer appears to concede in brief that all were temporary. Barwegen testified that on 5 July (thus thereafter) she received (as did Sellers) a Sherod letter (in the mail) dated 3 July, setting forth the Employer's "Guides to Procedures" in regard to staff positions eliminated and staff layoff. Under Barwegen's understanding of its terms, she was eligible for recall for a year, provided, inter alia, she declared her continued availability for recall every 30 days to Vice President Sherod. As Bar- wegen was laid off on 8 June and received the letter 5 July, she felt she did not have much time to do so. Ac- cording to Barwegen, Barwegen immediately contacted others (laid off) to see if they had received the notifica- tion. Barwegen relates (generally) they had not, and she alerted them. Barwegen next typed up an appropriate (availability) letter; and she (and Sellers) delivered a letter(s) on 7 July to Mather because Sherod was on a trip. Barwegen's letter provides: "This is to verify that I, Winifred Barwegen have notified PI for my availability for employment and have followed the procedures of the recall/employment availability policy. Layoff June 8, 1986. Notification July 7, 1986." This letter, in evidence, confirms that Mather signed with date and time shown of "7/7 11:35 a.m." Barwegen ' cast a ballot challenged by the Employer through the Employer's observer, although Barwegen re- calls (only) it was the NLRB (field agent) who told her that her ballot was being challenged (presumably) in the presence of and response to the Employer's observer. Barwegen asked why; and the field agent told her it was because she already had a position somewhere else. Ac- cording to Barwegen, she replied that it was a part-time job; that she did not qualify for unemployment; and that she had to survive. The agent repeated the stated grounds of the challenge. Barwegen had no recollection of being told at the time who specifically had challenged her vote. Barwegen also testified that prior to 17 July no one had told her that Pl had no intention of recalling her; no one had said anything was wrong with her work; and no one had said her personal conduct was unsatisfac- tory. Barwegen testified that she started on the second (full- time) job for the DHS, on 25 July. According to Barwe- gen, it was a week prior that she had received a phone call from DHS that if she wanted the job, it was open to her. According to Barwegen this (job offer) came as a shock to her. Barwegen relates that she went back on 24 July to PI (thus after she knew the second full-time job of DHS was hers for the confirming) in order to get Sherod to sign on her original letter of availability, which he did. On the same evening, 24 July, Barwegen called DHS; confirmed (accepted) the offer, and was told to report the next day. Barwegen has testified firmly 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the offer of this second full-time job with DHS came after the day of the election, although admittedly only shortly thereafter. Barwegen has asserted that she was available for PI employment on both 17 and 24 July. On cross-examination, when Barwegen was asked if she was so angry with PI that she would rather have gone to work somewhere else, Barwegen responded by reciting what she had given up for the work she was laid off from; admitted that she was angry; and that she felt she had been treated badly in above-noted and other re- spects of record. Barwegen asked (rhetorically) why should she take something for minimum wage and no benefits However, Barwegen has also testified that if PI had offered her a full-time position, comparable to what she had given up, she would have accepted it Barwegen did not notify PI of her availability after 24 July; and she acknowledges it was because of the (full-time) job ob- tained 25 July At the time of the hearing Barwegen had been employed for 3 months in the full-time position with DHS. Barwegen has also (candidly) testified that during the period of time she worked for PI and her layoff period, her goal in life was a (full-time) state job, but there was a freeze on. In that regard Barwegen has relatedly testified that her thinking was that if PI had something to offer her, she would stay with PI, adding in summary that she feels PI has a lot to offer people who are mentally handi- capped, but she is very disappointed in the way she was treated. Although I have some reservations about Barwegen's actual availability on 24 July with her knowledge of the availability of a full-time Iowa State DHS job, I do not regarding 17 July. There is simply no credible evidence presented to offset Barwegen's testimony that she had not received the full-time DHS job offer as of election day, nor is there evidence of record to warrant rejection of Barwegen's further testimony that the full-time job offer of DHS came as a shock (essentially) unexpectedly. I conclude and find that clearly from 7 July through election day Barwegen was available for a recall to full- time employment by PI. (5) Alleged statement that , but for union activity, employees would not have been laid off Carr confirms that she found out on 30 May from Sherod in the small conference room that they were eliminating positions, laying off, and cutting hours and that she was losing her lead trainer job by its elimination. Carr confirmed a bumping list presentment and explana- tion . According to Carr , one person ahead of her had had a chance to pick one of the available positions. Carr tried to choose the warehouse maintenance position (then) occupied by probationary employee Rory Larsen but did not have any experience in it, and was deemed not qualified . FAP lead trainer Stech subsequently chose the warehouse maintenance supervisory position, and Larsen was thus bumped by Stech and laid off 3 July, under circumstances to be described infra. Carr initially chose a full-time sewing position at $3.50 (with an under- standing it paid benefits). Carr asserts that she also asked Sherod why trainers could not be eliminated and lead trainers take their posi- tion, and she just take a 40-cent cut According to Carr, Sherod said they were going by union bylaws, and the Union did not believe in bumping (Carr's testimony in this regard appears simply incongruous with her allowed and presently intended bump at this time of Lorrie Avey, a full-time (probationary) prod/sewer, as well as contra- indicated by Barwegen's account of former lead trainer Andrews employment as a trainer in Progress North ) On cross-examination by the Charging Party, Carr (initially) related that McClurg later called her and said there were no benefits with the sewing position Carr said she did not want it Carr relates that Sherod subse- quently gave her an option of overnight aide at the North group home, or redemption driver, and she was given 1 day to decide. Carr also (initially) testified that .4 days after she was notified by Sherod about the elimination of jobs, thus 4 June, she and Schaeffer were in the Progress West office with Beeler Carr did not recall how the conversation started, but believed Beeler brought it up. According to Carr, Beeler said, "if the Union had not organized, they would have cut hours, instead of eliminated jobs." On another occasion Carr relates she was alone with Beeler when the statement was made. On still another occasion, Carr relates that in early June, which she also identified was 4 June, she was called into the (Progress West) group home office. Sherod and Beeler were present. On this occasion Carr related that Sherod informed her the sewing job did not have benefits and Sherod offered her two different jobs According to Carr, Carr told Sherod in this conversation that she had found out the Union does believe in bumping, Sherod then said, did I say that, and Carr replied, "Yes you did." According to Carr, Sherod then said, "Well, if it wasn't for the Union trying to come m,,we would just be cutting hours instead of eliminating people anyway." This was not an instance of Carr madverently misspeaking, as Carr also testified that Beeler had made no statement on this occasion. The complaint does not allege that Sherod made such a state- ment at a group home on 4 June, but (only) that Beeler made a (similar) statement on that date. Sherod has confirmed that he went to the group home to inform Carr that there were no benefits with the sewing job she had selected. Sherod explained that he knew Carr had a child, and that she needed benefits Sherod gave Carr the opportunity to choose another po- sition (redemption driver aide) with benefits. According to Sherod, Carr said she needed to talk to her mother, and would let Sherod know the next day Carr called the next day, and took the job Sherod denied there was any other discussion about bumping. Sherod specifically denied that he told her that the Union does not believe in bumping, at that or any other meeting; nor did he tell Carr (or suggest to Carr) that PI would be setting (cut- ting) hours instead of people anyway, if it was not for the Union coming in At best Carr's recollections as to Sherod appear to have been confused, and at worst the indicated vacilla- tion supports grounds for conclusion of general unreliabi- lity. I credit Sherod's denial of the contested statements Carr has attributed to him about bumping; and I credit as PROGRESS INDUSTRIES well Sherod's denial that he told Carr that if it was not for the Union trying to come in, "we would be just cut- ting hours instead of eliminating people anyway." Beeler confirms having a conversation with Carr with Schaeffer present. Beeler plausibly recalled it was the same day that Carr had been called over to the main office by Sherod (May 30). Carr came back to the West group home office. Carr told Beeler her lead trainer po- sition was eliminated, and asked Beeler why her position was being eliminated Beeler asserts he told Carr it was because of the funding, there was no money to support the position, and they had to eliminate it. Although Beeler had learned of the elimination of the lead trainer position only the day before, as earlier noted, Beeler was long aware of developing PI financial strictures, and had learned earlier in the year of a likelihood of layoffs this time. Beeler has denied that he suggested in any manner that the cuts in staff instead of cuts in hours was due to the fact the UAW was trying to organize employees Beeler explained that he told Carr that they had discussed this (only cutting hours again), because we had done that at one point, but "we just couldn't do it [this time] because we had lost so much money because of the Gramm- Rudman cuts." Beeler later testified that he (specifically) told Carr, "I tried to see if hours could be cut instead of having a layoff"; that he told Carr he brought that up clear back in like January-February at a manager's meet- ing; and that they we were told "we just can't do it be- cause there wasn't enough money." Beeler this time (flatly) denied that he told Carr that PI would have cut hours instead of jobs if it had not been for the union campaign, or said anything similar Beeler's testimony, as we shall see, is not only plausible and consistent, it re- ceives support, in the end, from Louella Schaffer PI employed Louella A. Schaffer as program instruc- tor from August 1985 to August 1986; as a work therapy specialist thereafter for a short time; and since 3 Novem- ber as Progress West group home manager (At time of testifying Schaffer was thus a statutory supervisor, and excluded from the unit) In material time, even though a program instructor, Schaffer still worked every other Friday at the group home, helping clients with their budgets. Schaffer recalled a Beeler-Carr-Schaffer conversation, though initially acknowledging she did not recall it real well Contrary to that disclaimer, though her recollec- tion was clearly a developing one, I find her eventual full testimony both revealing and, in the end, conclude it is significantly supportive of Beeler. Schaffer recalled that Carr had received a layoff letter as lead trainer. It is observed 30 May was a Friday, and 4 June a Wednes- day. (I find this incident much more probably occurred on 30 May, Friday, as Beeler has recalled, and Schaffer presence would indicate.) At the same time Schaffer had had her own hours as a program instructor cut to 25 hours (In passing Beeler relates his own 50-odd hours were cut to a maximum of 45, and with PI instruction they wanted like to see his hours held to 40.) Shaffer re- calls that at this time Carr was real upset, and Schaffer was too, and that it was probably either Carr or Schaffer 723 that began the conversation with Beeler, because they were both angry Schaffer's recollections were initially somewhat clipped and disjoined. Schaffer however recalled that Carr wanted to know (from Beeler) why they had cut her position, and why could not they just cut hours. Schaffer at first did not recall exactly what Beeler said; though she initially related the gist of it, namely, that to the best of her knowledge, Beeler said they could not do that, and they just did it this way. When a subsequent question was put to her by Respondent as to her recol- lection of Beeler saying anything to the effect that be- cause of the union campaign they were going to cut em- ployees instead of hours, Schaffer replied, "No, not really " Schaffer thereafter testified (initially on her own) that she was upset, and verbal, and knows that she said that if all the union stuff would not be going on, maybe there would have been dust layoffs like there had been in previous years It was apparent to me in the latter reference to layoffs Schaffer was nervous and had clearly misspoke in referring to layoffs, because she concurrently explained contrarily, that she had been at PI for over 6 years; every year there is a cutback in the summer; and PI did not usually lay off people, it cut hours Schaffer (albeit again in confused and clipped manner) corroborated that Beeler had then brought up doing the layoff again, with the budget cuts and things. on cross-examination Schaffer testified in significant clarification that she had made a comment that in the past they had cut or reduced hours for people rather than laying them off, adding she had her own hours cut before Schaffer further recalled that Carr had asked why they could not have just cut back people's hours in- stead of eliminating jobs? Schaffer at that point then re- called (and in so doing, in the end, has essentially con- firmed Beeler) that Beeler responded that he had brought that up before (to the managers), but they could not do that because there was no money there, the budget would not allow it. Significantly Schaffer initially stated that she thought she (Schaffer) mentioned the Union; though when subsequently asked about that testi- fied that she did not remember the subject of union men- tioned. Schaffer had earlier testified she was tired of all the stuff that was going on, and asserted that she made a statement that if the Union does come in, we are not going to be able to do this or that, only to stop herself, relating she did not know what this (latter) conversation was. On the Employer's redirect (in both leading, yet fur- ther clarifying manner), with an assurance by Respond- ent that both Respondent and the Generl Counsel wanted to know about a statement by her that she felt it was be- cause of the union campaign that jobs were cut instead of hours, Schaffer testified (essentially a second time) that she is sure she made that comment; and probably when they were both upset and conversing with Beeler. Beeler's testimony is plausible and consistent. Carr's recollection, to extent of attributing the statement ( essen- tially) that if it was not for the Union, PI would have just cut hours instead of eliminated jobs, first to Beeler, 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and then to Sherod and not Beeler, on the same day, but serves to render both testimonial recollections further unreliable . Although I do not as readily find Schaffer's testimony convincing as I do Beeler 's in this matter, I do further observe it is at once both consistent with Beeler's denial of the statement attributed to him , and somewhat explanatory of the basis for a Carr misrecollection and misattribution of such a statement to Beeler In any event, given the above clear showing of unreliability in Carr's recollections in this and other matters , I do not credit Carr's assertion over Beeler's denial that Beeler told Carr if the Union had not organized they would have cut hours instead of eliminate jobs For similar and other related reasons , namely, Carr's favored assertions, e.g., as to the nature of her prior eval- uations by Beeler, as to the disproven origin and course of her established difficulties with Beeler erroneously as- serted as limited to her period of open union activity; her inconsistent and incongruous bumping assertions ; and fi- nally her vacillation in erroneously attributing certain statements to Beeler, and then to Sherod, in the end, I am resultingly constrained to conclude and find that Carr's recollections must simply be viewed as appearing in general to be unreliable , and thus not to be credited where not otherwise supported and found in conflict with Sherod's, McClurg's, and Beeler's more plausible and consistent testimony. Accordingly I specifically also do not credit Carr's recollection of an alleged mid -April (or any other time) Beeler statement made to Carr that if the Union was in, she would not be able to have (essentially) the flexibility to call Beeler and be late for work . Neither do I credit Carr's assertion of an early May Beeler statement (essen- tially) that if the Union came in, she would not be able to leave and cash her paycheck anymore when she came in on Friday . I shall recommend that each and all these complaint allegations be dismissed for lack of consistent credible evidence presented sufficient to sustain them. In summary , I have found supported by sufficient credible evidence only the complaint's allegation that in violation of Section 8(a)(1) of the Act: on 2 May, Group Home Manager Hill interrogated an employee (Frahm) about her and other employees' interest , sympathies, and activities for and on behalf of the Union, though with additional observation that the record reveals that Hill's interrogation of the employee (Frahm) was not isolated; and that on 16 May that Group Home Manager Hill ef- fectively threatened and coerced employees (Sellers and Frahm) by telling them that if the employees chose to become represented by a union , under a resulting con- tract, he would probably not be able to allow them the personal work flexibility that they currently enjoyed 111. THE OBJECTIONS The Union timely filed 12 objections, of which only Objections 1 through 5 and 9 remain outstanding These objections provide as follows: 1. PI interrogated and coerced employees about their support for the Union. 2 PI threatened to withhold wage increases in order to discourage employees from engaging in union activity. 3 Progress Industries changed layoff procedures and threatened to change layoff procedures to dis- courage employees from engaging in union activity. 4. PI laid off employees and threatened to lay off employees to discourage union activity. 5. Progress Industries threatened and reduced benefits in order to discourage union activity. 9. Progress Industries threatened to impose more onerous working conditions and threatened to bar- gain from zero to coerce employees from support- ing the Union. In light of the earlier findings that related complaint allegations are unsupported by credible evidence suffi- cient to sustain the allegations, and on the record consid- ered as a whole, it is further concluded and found that Objections 2, 3, 4, 5, and 9 are without merit, and ac- cordingly it will be recommended that these objections be overruled and dismissed also for lack of sufficient credible evidence presented to support them. As to Ob- jection 1, however, I have found that the related com- plaint allegations are supported by credible and weighty evidence that on 2 May Group Home Manager Rory Hill interrogated an employee (Frahm), inter alia, about other employees' interests, sympathies , and activities for and on behalf of the Union, in violation of Section 8(a)(1) of the Act, and that similarly, on 16 May, Group Home Manager Rory Hill effectively threatened and co- erced employees by telling employees that if employees chose to become represented by a union, under a result- ing contract , he would probably not be able to allow them the personal work flexibility that they currently en- joyed. The Board has long held that conduct that is found to be in violation of Section 8(a)(1) is, a fortiori , conduct that interferes with the results of an election, and the Board will generally direct a new election in those cir- cumstances unless it appears that the unlawful conduct is so de minimis as to make it virtually impossible to con- clude the violations could have affected the results of the election , cf Eskaton Sunrise Community, 279 NLRB 68 (1986); Custom Trim Products, 255 NLRB 787 (1981); Super Thrift Markets, 233 NLRB 409 ( 1977), and Dal-Tex Optical Co , 137 NLRB 1782, 1786 ( 1962). Here both UAW petition filing and the determined unlawful inter- rogation conduct occurred on the same day, 2 May, and the coercive statement on 16 May Both were within the critical objection period . Ideal Electric Co, 134 NLRB 1275 (1961) It is notable that the interrogation occurred on the very first day of the critical period and , otherwise, a co- ercive remark occurred on 16 May, 2 months before the election There has been no credible or persuasive evi- dence presented of any other unfair labor practice being committed thereafter , including none directed against those others named to the supervisor as active for the Union Here the coercive interrogation found violative, though directed at one employee, variously exposed PROGRESS INDUSTRIES 725 union interest of other employees, and the record reveals further that there were incidents of similar inquiries made of other employees, as well as continued conversa- tion with interrogated employee Frahm about related matters. In determining whether an employer's unfair labor practice conduct is de minimis with respect to affecting the results of an election, the Board takes into consider- ation the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors, e g, Custom Trim Products, supra. On size of the unit in relationship to number of violations, see Super Thrift Markets, supra, in which 3 individualized interro- gations were directed at 2 individuals in a 24-employee unit, but I of whom also had a coercive comment direct- ed at the employee by a high-ranking official, and where the election results were set aside, and compare Essex International, 216 NLRB 831 (1975), in which, in a unit of 325 employees, a supervisor's (assumed) interrogation of 1 employee about that employee's union views, activi- ties, and inquiry on the subject of desired improvements that would obviate the Union and another supervisor's (assumed) statement that a certain transfer was union re- lated were concluded in total impact as not so substantial as to warrant setting aside a (close) election conducted in a'unit of 325 employees Here the initial unlawful inter- rogation was of 1 employee (Frahm) by a supervisor, in a unit of some 50 employees. However, the nature of the interrogation not only probed that employee's interest and activities, but more broadly, the interests, sympa- thies, and activities of other employees Moreover the su- pervisor's own testimony has revealed there were a sig- nificant number of continuing conversations, some of which further invaded other emloyees' reactions to the Employer's ongoing campaign. The same supervisor later made a coercive and/or threatening statement to two employees On balance, I conclude and find the case cir- cumstances to be more governed by holding of Super Thrift Markets, supra, and accordingly conclude and find there is merit to Petitioner's Objection I IV THE CHALLENGED BALLOTS The seven challenged ballots were cast by Winifred Barwegen , Rory Larsen, Kristi Beeler, Evelyn Sherod, Bill Lien, Joan Tyler, and Betty Wilcox. Convenient groupings for addressment are Barwegen and Larsen; Beeler and Sherod; and Lien, Tyler and Wilcox A. Barwegen and Larsen Barwegen was laid off on 8 June. Barwegen's layoff circumstances are fully reflected supra, and they need not be repeated here The Employer challenged Barwe- gen's ballot; and the Employer has urged in brief that the challenge to the ballot of Barwegen should be sustained, essentially because Barwegen was mad at the Employer, refused three temporary jobs, and really was not interest- ed in a job at PI at all The Union argues to the contrary that at the time of layoff Barwegen had been told she could expect a recall in December as of election day, Barwegen had fulfilled all the Employer's requirements for a recall, she was then awaiting a recall, and had not accepted another (full-time) job. Accordingly, the Union urges Barwegen's ballot should be opened and counted. The Union challenged the ballot of Rory Larsen. (Union observer Bollhoeffer challenged Larsen's ballot, testifying that as far as she knew he had quit, and taken other employment) In brief the Union contends essen- tially that the challenge to the ballot of Larsen should be sustained because as of election day Larsen had quit PI to go to work elsewhere at Misner Electric. The Em- ployer urges to the contrary that it was as a result of a Stech bump that Larsen was laid off, that the Employer was anticipating a recall of Larsen (and others) in 6 months, December; that Larsen had evidenced that he wanted very much to return to work at PI; and that Larsen effectively maintained his recall status with the Employer until he returned to Minnesota to live (after the election) The Employer thus urges that Larsen's layoff was temporary in nature, and as of the day of the election Larsen had a reasonable expectation of recall to work with the Employer in the near future According- ly, the Employer urges that the challenge to the ballot of Larsen should be overruled, and that Larsen's ballot should be opened and counted On 14 March, PI initially employed Rory Larsen as its warehouse/maintenance supervisor at $4.75 an hour. Larsen more specifically described the job (essentially) as one covering: all shipping and receiving; a maintenance of related records; (light) maintenance of the main plant; and (general) mostly outside maintenance of the Employ- er's group homes and grounds Larsen had no staff under him, but testified that he could utilize clients in the work as needed, through request made to Production Manager Bartello, Larsen's direct supervisor PI employed Michael Stech initially in September 1983 In material times Stech worked as a lead trainer in PI's administered FAP with a prior high pay rate of $5.11 an hour Stech worked with the mentally ill in budgeting, groceries, grooming, and apartment mainten- ace According to Stech on 30 May, Sherod and McClurg informed Stech that FAP was to be discontin- ued, and would revert back to DHS on 1 July. Sherod relates he informed Stech his current position of lead trainer was to be eliminated. Stech testified the former FAP program is currently administered as a community interaction program of Jasper County DHS, which he believed was tied in to the Iowa State DHS. On Stech making application for this job, Jasper County DHS em- ployed Stech as of 1 July. PI did not employ Stech in FAP thereafter. It is clear, in any event, Stech was notified that his FAP lead trainer job was being eliminated On 30 May Sherod and McClurg offered Stech a choice of certain jobs at PI. In prior January-February, Stech had worked in-house and was somewhat familiar with the warehouse. Stech chose the warehouse maintenance supervisor job, which was essentially shipping and receiving. Stech started in this job as of 1 July, and was employed in it as of election day, 17 July As warehouse maintenance su- pervisor, Stech had no staff under his direction, confirm- ing that on request made of Bartello, clients were pulled 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD out of other work areas to perform specific tasks, when and as needed. In October PI employed Stech as a mi- crographics supervisor, working with mentally ill pa- tients, though there is some indication that Stech was no longer employed by PI at the end of the hearing. On Setch's selection or bump to the warehouse main- tenance supervisor position, PI gave Larsen notice (ini- tially) that he (as others) would be laid off in early June (8 June). However, Bartello promptly informed Larsen that that was not right because the person (Stech) taking over the job would not be available until the end of the month. During the last week or so of his employment, Larsen provided some training and/or orientation to Stech. On 3 July Sherod called Larsen into his office and pre- sented Larsen a copy of the same "Guides to Proce- dures" governing staff eliminated positions and staff lay- offs as were provided (by mail) to Barwegen and the other similarly affected employees, earlier laid off. Larsen signed and dated a copy for PI which Sherod re- tained Larsen relates that (at some point) prior to his break in PI employment that he had told Sherod, that if there was an opening and PI considered him for it, he would like to be asked. On 3 July, in speaking to Sherod, Larsen told Sherod he was very much interested in a recall to PI employment Larsen's last day of work with PI was 3 July In the interim, but clearly only after receiving the layoff notice, Larsen had become aware of a job opening from a coemployee. Larsen sought and secured other employment with the local firm, Meisner Electric, a week before he left PI employ. Meisner hired Larsen as a warehouse assistant at $4.50 an hour. Larsen began his employment at Meisner on Monday, 7 July. Larsen ac- knowledged that Sherod, Bartello, and many PI employ- ees (with certain of whom he had conversations) knew that Larsen had secured the other employment with Meisner, before his last day of work with PI Larsen ex- plained (plausibly) that when he learned of and obtained an available job (at Meisner Electric) that would provide money to support his family, he jumped at it, and, relat- edly, Larsen liked telling people about the exciting news that he had another job and would not be unemployed, without money coming in On 3 July Larsen wrote a note of thanks to PI staff, and (as he testified) to clients. The note essentially re- lates, "I would like to thank you all, because it has given me great joy and satisfaction working with you and for you, thanks for all the help & patience shown me I will miss you all." The note contained postscript, "I'll come & see you & say HI once & a while." Larsen placed this note in certain staff mailboxes. This note, together with Larsen's conceded request for, and securement of, full- time employment with Meisner before Larsen left PI employ, is urged by the Charging Party as establishing (essentially) that Larsen was not laid off but had quit (or, effectively, that Larsen had abandoned layoff status in seeking and taking a full-time employment with Meisner). On the totality of the above, and other facts of record, I simply do not agree. - The election was held on 17 July. Larsen had taken occasions to visit PI at least once in each of the 2 weeks prior thereto. Larsen testified (credibly) that during one such visit he made an inquiry of Sherod (brothers), in half-joking manner, asking Sherod essentially whether there were any openings that had developed (despite the little time passage), or if any of the others (retained em- ployees) were not working out. Even more to the point were the very circumstances under which Larsen voted his challenged ballot in the election. Larsen testified that he intended to vote in the elec- tion; and everyone knew that. Larsen voted some time between 9 and noon , 17 July. In that regard , Larsen re- lates that when he asked his superior at Meisner, while on duty at Meisner (essentially) if he could go vote at PI, Larsen was told (only) that they needed someone to cover there. A coworker (later) agreed to cover for Larsen for 15 minutes. Larsen left, and voted a ballot that was challenged by the Union, on the basis he was employed elsewhere. Apparently on 23 July, Larsen was informed that they (Meisner) were going to have to let him go because he took off from work, when he was told not to According to Larsen, Larsen was told (essentially) that he was also being let go because of a disagreement he had had with a coworker, and because his work was not good, which latter point Larsen disputes, along with Larsen claiming there was a misunderstanding as to the prior Meisner di- rection. In any event, Larsen asked if Meisner would write down as the reason for his leaving that he quit; and Meisner (at least initially) agreed to do so. According to Larsen, over the prior 3 days he and his wife had been discussing the question of going home to Minnesota. Larsen acknowledged relatedly that he prob- ably would not have stayed at Meisner because he did not like the hours or the atmosphere, which he asserts were not conducive to a good working attitude. Larsen also testified that in this period (of Mesiner employment) he had gone back to PI and asked if Bartello could find a position for Larsen at PI but Bartello could not right then. On the day that his employment terminated at Meisner, viz, 23 July, Larsen and his wife returned to Larsen's hometown in Minnesota, approximately 177 miles from Newton. Larsen secured other employment there for which he is paid at the rate of $8 an hour. Larsen has testified on cross-examination that at the time he voted, Larsen intended to return to work at PI if an opening became available, but (candidly) asserted it depended on what the opening was. Larsen testified in that regard that if they offered him a job in maintenance, he would have returned. Larsen had earlier testified, in regard to discussion with Sherod, that there were differ- ent departments he would be willing to work in. Larsen otherwise testified that if he were presently offered a job at $7 an hour, he would probably still do it, adding I really enjoyed the job. However, Larsen acknowledged he had not contacted PI (or Sherod) since going back to Minnesota. Clearly under PI expressed written layoff- recall policy, Larsen would no longer qualify for recall. Larsen was, I find, wholly qualified under that policy as of election day, 17 July, as was Barwegen The Board has long held that the test of eligibility is not whether laid-off employees have continued seniority PROGRESS INDUSTRIES 727 rights for a period (e.g., 6 months), but rather the test is whether there exists a reasonable expectancy of their em- ployment in the near future, Higgins, Inc., 1 i 1 NLRB 797, 799 (1955). Here the laid-off employees, particularly Barwegen and Larsen, not only had recall rights for a year pursuant to written company policy, conditioned only on a 30-day renewal notice of availability to Sherod, but as of election day, 17 July, the Employer an- ticipated recall of all laid-off individuals within 6 months, viz, by December. Barwegen as clearly had reasonable specific opportunity for employment earlier, namely, in the fall. In my view, the matter of layoff versus quit need not be belabored. On weight of evidence, I find both Barwe- gen and Larsen were laid off and that as of election day 17 July, both remained available, and had a reasonable expectancy of future employment with the Employer in the near future. The only remajning questions are the recall questions of whether Barwegen's anger with the Employer over the circumstances of her layoff and her interim rejection of three temporary work opportunities with PI have evi- denced an abandonment of any interest in any employ- ment by PI in the future, full time or otherwise; and, similarly, whether Larsen's fortunate procurement of an immediate full-time employment elsewhere in a seeming- ly substantial similar job and rate of pay, coupled with his (contended) "good by" note, actually evidenced an abandonment on his part before the election of any con- tinued interest in further employment by P1. Other deter- mined facts of record simply do not warrant such a con- clusion to be drawn, in either instance. As for Barwegen, Barwegen had a degree and was re- cently rated as an excellent trainer. Three jobs, albeit each temporary, were offered to her prior to the elec- tion. Each such job offer was extended to her in a volun- tary mode; and there is no contention advanced nor evi- dence to support any Employer-contended compulsory recall such as would have triggered the Employer's for- feiture provisions in its layoff-recall policy. Under these circumstances, it is not inconsistent for an employee in Barwegen"s position to decline voluntary temporary work, while holding oneself available for recall to the same position from which laid off, or for consideration of some other acceptable full-time position that may come open. Moreover, Barwegen had reason, as provid- ed to her by the Employer, to believe just such an ac- ceptable job opportunity might open for her well before December, namely, in the fall. Neither is it necessarily inconsistent with a continued interest in a recall by Em- ployer PI for Barwegen to seek part-time or full-time work with benefits elsewhere during an interim period of layoff. The short of the matter is that Barwegen and Larsen as well had affirmatively performed before the election all that was required of them by PI to establish their continued availability and interest in future employ by PI. It is accordingly concluded and found that as of elec- tion day, 17 July, Barwegen and Larsen were both laid- off employees who had qualified their continuing rights with the Employer for a recall from layoff; and both, as of election day, had a reasonable expectancy of further employment with PI in the near future, namely, both by December, and Barwegen with specific opportunity even sooner in the fall. Developments subsequent to the elec- tion are not determinative, cf. Data Technology Corp., 281 NLRB 1003 (1986). Accordingly, I shall rcommend that the challenges to the ballots of Winifred Barwegen and Rory Larsen be overruled, and that their ballots be opened and counted. B. Kristi Beeler and Evelyn Sherod Union observer Bollhoeffer testified that she chal- lenged Kristi Beeler as a relative of management, and be- cause the Union thought she was employed by someone else. The Union additionally urged at hearing and in brief that Beeler was essentially a contract casual em- ployee and as of 1 July, did not have a community of interest with the unit employees. Bollhoeffer testified that she also challenged Evelyn Sherod as a relative of management, and because they did not feel she had the same interests as the rest of us. The Union at hearing and in brief (essentially) argues that Evelyn Sherod by virtue of her relationship as wife of Vice President Dale Sherod has occupied a special status in respect to promotion and pay, and she was allowed not to attend staff meetings, for which nonattendance others have been disciplined. The Employer argues that under Board precedent the mere coicidence of a family relationship between an em- ployee and member of management does not without more, warrant an exclusion of that employee from a bar- gaining unit; and the Employer contends further that the record does not establish that a special status was given to either employee. The Employer relies on International Metal Products, 104 NLRB 1076 (1953); and Pargas of Crescent City, 194 NLRB 616 (1971). The Employer ac- knowledges that the Board may exclude certain close relatives of owners (I note, without a finding made that the relatives had received special job-related benefits or privileges), as passed on by the Supreme Court in NLRB v. Action Automotives, 469 U.S. 490 (1985), but would have noted the Supreme Court's substantial weight given to the Board's "community of interest" doctrine in that case's addressment of the propriety of the Board's exclu- sion of relatives of (owner) managers on objective con- siderations indicative that the interests of the relatives are more likely to be aligned with the business interests of the family than with the interests of unit employees. Regarding a consideration of "community of interest," the Employer would then additionally rely on Kalama- zoo Paper Box Corp., 136 NLRB 134 (1962), for its enu- meration of factors deemed indicative of an employee's interest being apart from (the community of interest of) other unit employees. Under application of such a stand- ard, the Employer contends that both Kristi Beeler and Evelyn Sherod are shown of record to have a communi- ty of interest with other PI bargaining unit employees. It is clear of record that neither Evelyn Sherod nor Kristi Beeler is a relative of an owner manager. In that respect, the Board has heretofore held that "special status" (or specific special privileges or benefits) alone governs eligibility of nonowner manager relatives, Cum- berland Farms, 272 NLRB 336 fn. 2 (1984), reaffirmed in 728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Terraillon Corp, 280 NLRB 366 fn 1 (1986) (In the Ter- raillon case, id, fn. 1, Member Johansen would look to community of interest in determining the eligibility of relatives of owners or of nonowner managers See NLRB v. Automotive, 469 U S. 490 (1985).) It is the duty of an administrative law judge to apply established Board precedent that the Board or the Su- preme Court has not reversed, Ford Co, 230 NLRB 716, 718 fn 2 (1977), and Iowa Beef Packers, 144 NLRB 615, 616 (1963) Not only does it appear that the Supreme Court in Action Automotive, supra, did not expressly pass on or reverse the holding of Cumberland Farms, supra, or a seeming related case holding, e.g., see the Pargas of Crescent City holding cited in Action Automotive, supra at footnote 5, and relied on by Respondent here, but it ap- pears that a majority of a Board panel has already ad- dressed and apparently taken just that view in that in the Terraillon case, supra, decided subsequent to Action Auto- motive, a Board panel majority has reaffirmed its prior Cumberland Farms holding that the "special status" test alone governs eligibility of nonowner manager relatives. I need observe only further that "special status" may in- clude a wide assortment of "favorable working condi- tions not granted other employees " NLRB v. Connecti- cut Foundry Co., 688 F 2d 871, 879 (2d Cir. 1982), and cases cited there Accordingly I shall apply the "special status" test alone on the issue of eligibility of determined close relatives of nonowner managers Other grounds raised in question of the status of Kristi Beeler, namely, as a contract casual employee, is not thereby affected, and that issue will be separately addressed and resolved. 1 Kristi Beeler PI initially employed Kristi Beeler on 30 December 1985, as a FAP trainer. Kristi Beeler is the wife of (then) Progress East Group Home Manager Dan Beeler (For purpose of clarity, when reference is to Dan Beeler, it will be so stated.) Beeler's basic regular (FAP) work schedule for PI was under 30 hours, thus part time. Her job essentially was to maintain a client's independent living skills in the community, i e, reminding a client to follow the client's IPPS in areas of apartment mainte- nance, grooming skills, social skills, and social activities For as long as PI administered FAP for JCDHS (DHS) Beeler not only logged, but charted, performances of cli- ents with (percentages of performance achievements to goals) rating as required by PI in order to maintain records for inspection, in turn required of PI for its con- tinued accreditation from the Commission on Accredita- tion of Rehabilitative Facilities (CARF), a national ac- crediting body. In passing it may be noted that, accord- ing to Beeler, a DHS social worker (previously) would make the recommendation to (assigned) PI case worker that they put a client into FAP At the time PI notified Beeler of the (prospective) abolishment of her FAP trainer job, PI first offered Beeler a full-time position However, it was a night posi- tion Beeler decided that she could not accept a night position because of her children. PI then offered Beeler a sewing position Beeler tried out the sewing position for a 6- to 7-hour training period, found it too difficult, and discontinued training on it (The propriety of the offers of such jobs is not questioned.) With DHS taking over (back) FAP on 1 July, Beeler's last day of employment in FAP as administered by PI for DHS was to be 30 June, except for the circumstantial development of pro- viding FAP service to client X, as discussed below. In the interim Beeler applied to, and was hired by, DHS to perform (essentially) the same follow-along pro- gram for DHS. However, Beeler works 20 hours a week for DHS, and she works with six clients who have either a developmental disability, or who are mentally ill. For each separate type work, namely, for developmental dis- ability work, and for work with the mentally ill, Beeler receives a separate biweekly check from DHS. Some of Beeler's clients, currently being served by DHS, were previously served by Beeler as an employee of PI Beeler's work for DHS is not accredited by CARF; and Beeler is not required to perform individual charting or rating of IPP client performances Beeler does log the clients' performances A DHS employee, Ellen Mathis, supervises Beeler in the work performed by Beeler for DHS. Beeler's work (essentially) in FAP for DHS is en- tirely divorced from PI. Kristi Beeler testified that she was also employed by PI to perform FAP services for one client, referred to at hearing as Mr X, and here as client X. Beeler had worked with client X while previously employed by PI. According to Beeler, client X had a bad habit of not doing anything; and client X needed a lot of encourage- ment Beeler currently performs the same monitoring work with client X as she had performed with him, while PI had FAP, including not only logging, but charting and rating. Client X's performance percentages are low. Beeler normally works Monday through Friday; and she arrives at the client's home usually between 4.30 to 5 p.m., and works with the client for times that may vary from 6.30 to 8 p.m. Beeler testified that PI Human Services Manager McClurg is her sole instructing supervisor on her work with client X, and that June Anderson is the client's overseer. McClurg confirmed he is Beeler's supervisor, and relates that Pat Glasford is the case manager as- signed to client X, and that Glasford is responsible for developing the IPP of which FAP is an integral part. Glasford did not testify as to her involvement with client X. Beeler however confirmed client X has an IPP pre- pared by a case manager (unidentified). Kristi Beeler on other occasions testified severally: that she has no direct supervision of her present work activity for PI; that McClurg does not visit with client X, that Anderson has not visited, at least in the last 6 months, and, finally, that Beeler works pretty much as an independent person, though Beeler acknowledged that she does have the IPP to follow. The Employer has gen- erally established that a case manager's job description (E. Exh 2) requires a preparation of a report on a cli- ent's progress on a quarterly basis, and a review of the client's IPP at least semiannually. There is no evidence presented that this is not done in the casehandling of client X PROGRESS INDUSTRIES 729 McClurg testified (generally) that Jasper County DHS provides FAP services only to Jasper County residents, and he asserted that PI continues to provide FAP serv- ices to nonresidents of Jasper County, and to people who are not eligible under DHS income guidelines to receive that service Beeler, however, had no personal knowl- edge of any other PI employee rendering help to a pri- vate pay client In any event, in material times after 1 July, on this record, PI provided FAP services (I find) to only one private pay client, client X In that regard, there is no documentary evidence presented on client X's arrangement (or on any others) Any suggestion of record by McClurg that there may have been another client, without any recollection of further detail on his part, was effectively left both undocumented and too in- definite to credit. McClurg, however, testified that prior to 1 July PI had recognized that client X would continue to need FAP service; that client X had too much income/- resources to qualify for DHS, that client X had devel- oped a trusting relationship with Beeler, that to change personnel after 1 July would cause client X grief; that Beeler was very qualified; that PI felt it best to continue Beeler in that service, that McClurg asked Beeler if she was interested in providing the service to client X; and that Beeler agreed to do so. In general, I credit the above In that context, I further credit Dan Beeler's testi- mony that when the FAP program was abandoned he did not recommend to PI that his wife be retained to handle a private pay patient Kristi Beeler was aware that client X is a private pay client and also that client X is without a family. Beeler's understanding otherwise was that client X's attorney made (contractual) arrangement with PI for PI to per- form 80 hours of service a month Otherwise, Beeler was not aware of the duration or termination provisions of the agreement. McClurg explained the arrangement as being that client X has a conservator or executor under a will, who is responsible for handling the money and providing for client X's well being. PI has an agreement with the con- servator to provide the required services to client X Al- though not recalling the total number of hours, McClurg did recall that the PI-conservator agreement on client X contains provisions regarding the number of hours of service that must be performed, i.e., so many hours for case management, FAP service, and transportation service Beeler testified that she works with client X anywhere from 7-8 hours to a maximum (at least initially) of 15 hours a week, depending on need, but usually 10-11 hours on average. Beeler works with client X 5 days a week, though she is not required to do so. Beeler also determines on her own how many hours she will work with client X , up to a maximum of 15 hours a week, though as indicated there is some record suggestion that cap may no longer apply For this work, Beeler is paid by the hour, and she receives no benefits Like other unit employees, Beeler keeps a timecard record of the hours that she works with client X; and Beeler turns that time- card into McClurg. Beeler is paid biweekly by PI for the services she provides to client X Beeler also prepares a monthly report on the IPP information she has logged, charted, and rated; and she submits it to McClurg. McClurg confirmed that PI sends a report to the conser- vator, validating (all) PI's activities with client X It is clear from the above that Kristi Beeler is a close relative of a nonowner manager There is no persuasive evidence that Kristi Beeler has received any special ben- efits or privileges, or was treated differently than other unit employees by virtue of her spousal relationship with Group Home Manager Dan Beeler. A challenge to Beeler's eligibility (I find) is simply not to be sustained on the basis of a contention of "special status." The Union otherwise contends that Beeler is a contract casual employee, without cited authority. In my view, there is insufficient evidence to conclude that Kristi Beeler's employment relationship with PI is casual . To be sure her employment, on this record, is presently dependent on one contract for PI specialized service to a client. But this does not necessarily import casual employment. To the contrary, Beeler's declared (uncontested) assessment of client X's modest progress, and more pointedly scope of need for progress to be achieved, hardly speaks of a casual employ requirement. Although the contract is not in evidence, her testimony about the nature and length of her current employ is. The number of hours worked, an average of 10-11 per week, is not insubstantial , and such amount would appear sufficient to support a community of interest with other unit employees that includes other regular part-time em- ployees. Beeler is clearly not an irregular on-call/casual employee such as has been excluded from the unit. To the contrary, she appears to be a regular part-time non- professional FAP trainer employee as she (essentially) was previously, and as such was specifically included in the unit. To be sure Beeler exercises a significant amount of personal flexibility in days and hours worked, but PI control requirement is only about number of hours per week to be worked within a cap. Other employees whose hours are capped, and who are on call 24 hours a day and whose schedule (but not number of hours) re- sultingly fluctuates (e g , case managers) are included In my view Beeler is also not an independent contractor, as she must operate under specified PI guidance of an IPP that wholly governs her service requirements; and she must fill out PI-required documentation on her service to client X and the latter's performance. The very nature of her job in the past, as presently, was one performed nor- mally away from supervision, and she otherwise reports in writing regularly to a supervisor (McClurg) who exer- cises common supervision over other unit employees The Employer's policy on recall is made applicable not only to those laid off, but also to those whose jobs are eliminated . Beeler appears, like other employees simi- larly situated whose jobs were eliminated, to have been first offered other available employ; and she declined it as others, who are found to be or shown on layoff and are uncontested in eligibility, e.g., Sellers. However, in Beeler's instance she has continued to work for PI in (limited) FAP work; and the Union does not appear to contend that Beeler experienced interrupted PI employ- ment. r 730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD There is neither contention nor evidence sufficient to warrant finding that the PI-conservator agreement was not one entered in good faith and of legitimate business origin. Kristi Beeler was not a laid-off employee, but at all times has continued as a part-time FAP trainer em- ployee; and it is notable that even if it were to be con- cluded otherwise, she (at least) occupied status of a re- called employee as of election day It is concluded and found that though Kristi Beeler was a close relative of a nonowner manager, she did not have special status; and because she otherwise continued in the employ of PI as a regular part-time FAP trainer employee on election day, she is eligible to vote. Accordingly, it will be recom- mended that the challenge to ballot of Kristi Beeler be overruled, and that her ballot be opened and counted. 2. Evelyn J Sherod Evelyn J. Sherod is the wife of Vice President Dale Sherod Vice President Sherod owns no interest in PI. On election day, and currently, PI employed E. Sherod as an overnight aide (presently) at a rate of $3 72 per hour. E. Sherod worked 32 regularly scheduled hours a week for PI. She is full time, and receives benefits, as do certain other unit employees, similarly situated. E. Sher- od's immediate supervisor is Elroy Van der Ley. The matters in conflict and cross-contention are in other areas. They essentially appear to be twofold: first, whether E. Sherod is shown to have earlier enjoyed spe- cial status in regard to a certain raise granted and/or in regard to a related promotion to trainer status and, second, whether E. Sherod has received favored treat- ment or other special privileges with regard to her (un- contested) allowed nonattendance at (contended) manda- tory staff meetings. In these respects, the Charging Party relies principally on the testimony of its witness, Dan Westin, who, in earlier period, supervised E. Sherod, al- though (I find) not exclusively so. E Sherod recalled (erroneously) that she was initially hired as an overnight aide and a trainer. On other occa- sions she related (erroneously) that she had always been employed full time. Documentary evidence (P. Exh 13) from her file, however, established that PI initially hired E. Sherod as a part-time residential aide, there indicated to be a new position, at $3.50 per hour. Otherwise E. Sherod accurately recalled that at the time of hire her immediate supervisor was Vonna (or Vonda) Van Parys, apartment counselor. E. Sherod's start of employment date is 19 September 1983, Her hire had been earlier ap- proved on 30 August 1983 by (then) Department Manag- er Dale Sherod and by Mather on 31 August 1983. I credit E. Sherod that her initial supervisor was Van Parys; and I further credit her recollection that it re- mained so into 1984, although it appears not for all of 1984. According to Sherod, in 1985, she was supervised by Dan Westin and also by Rory Hill (Progress East). (Hill was initially hired as a lead trainer in Progress South; and Hill became group home manager of Progress East in September 1984.) Weight of credible evidence convinces me that it was prior to September 1984 that Dan Westin began supervising E. Sherod; and that in that regard, it appears highly likely that this beginning coincided with Westin's own reassignment as manager of the supervised apartments at Progress South, due to an interim fire at Progress East E. Sherod testified that she has always worked regular- ly at Progress South (apartments) (Thus she was work- ing there before Westin arrived at Progress South ) Sherod also testified she has worked in every group home as an on-call staff person, whenever they got into a pinch and needed help. E. Sherod's regular workday hours as an overnight aide are (as they were when ini- tially hired as a residential aide) 11 p.m. to 7 a.m. On the basis of E. Sherod's testimony, I conclude and find that E. Sherod's initial work on assignment as a (then-enti- tled) residential aide is essentially the same as her work as an overnight aide in more material times. As of elec- tion day E. Sherod worked Monday, Tuesday, Friday, and Saturday. (Another overnight aide worked the alter- nate weekdays, viz, Wednesday, Thursday, and Sunday.) a. The questioned special status E. Sherod was initially hired (started) at PI on 19 Sep- tember 1983, at $3.50 per hour. At some point thereafter she received an 11-cent raise to $3.61, presumably on completion of probationary status, but which in any event does not appear to be questioned. Documentary evidence (P. Exh. 14) reflects that starting 3 September 1984, E. Sherod became a trainer at South (apartments), as well as being assigned full time, 34 hours (seemingly) re- placing Danny Beeler/Tammy Simmons. E. Sherod at this time received a raise from $3.61 to $4.33 per hour. This increase is recorded as being for a change in job re- sponsibilities. A Dan Westin, manager (Progress) South, is shown as E. Sherod's immediate supervisor at this time. Approval signatures are Department Manager Dale Sherod on 3 September 1984, and Mather on 6 Septem- ber 1984. This raise and (purported) promotion to trainer are contested by the Charging Party as evidencing her special status, benefit, or privilege. Called by the Charging Party as a witness, former PI employee Dan Westin testified that he was hired in Sep- tember 1983, thus about the same time as E. Sherod was hired On direct examination, Westin testified that origi- nally he was the group home manager of Progress East; and, on cross-examination, acknowledged that PI hired him as a supervisor. As noted, at some indefinite point of time when Progress East suffered a fire, Westin was re- assigned to manage Progress South apartments. There appears a degree of confusion in Westin's recollection in regard to certain related matters. Thus, certain of Wes- tin's related recollections would appear to indicate the group homes opened in (or at best shortly before) Febru- ary-March 1984, which would appear to contraindicate his own indicated original placement in supervision at Progress East in September 1983. An opening of group homes (thus considerably after his hire) would as well appear contraindicated by financial notation that con- struction of the group homes occurred in 1982 Employer background Exh. 11, p. 6) Westin's acknowledgement of a preexistence of job descriptions for trainer and over- night aide when he got there in September 1983 would tend to further support that these job descriptions were already in use in earlier opened group homes. Mather PROGRESS INDUSTRIES 731 generally referred to dedication of (at least) a group home and the apartment building 3 years ago (thus Sep- tember, October 1983). Be that as it may, Westin has, in any event, acknowledged that he was E. Sherod's super- visor pretty close to 3 September 1984, as indicated on Petitioner's Exhibit 14 Westin, however, has testified that he did not sign Pe- titioner's Exhibit 14, and that he did not know of E. Sherod being paid $4.33 as a trainer until he made an annual review of E Sherod, on or shortly before 8 July 1985. Westin testifies that he usually did sign (such docu- ments) on that line (Westin does not claim that P. Exh. 14 was not in E. Sherod's file, or that he had not re- viewed it before, e.g., as of 1985 review.) The Employer further points out the line on which the name Westin ap- pears (on P Exh 14) is not a signature line, but a line for name and title of immediate supervisor. Otherwise, Westin has testified regarding the 1985 (later) raise given to E Sherod (P. Exh. 15) that he was authorized to give a 3- or 5-percent raise at the time, and that E. Sherod was entitled to and received and given a full raise. (As E Sherod went from $4.33 to $4.45, and Westin recalls E. Sherod was entitled to a full raise, it is apparent that Westin was authorized to grant a 3-percent raise at that time) More pointedly, Westin also testified that E Sherod, he guessed, had been promoted to a train- er position (in 1984) without his knowledge; and that he had not known previously that E. Sherod was making $4 33. More materially, Westin testified that E. Sherod's job duties while under his supervision were that of an over- night aide, mainly to clean 11 p .m. to 1 a.m., to sleep 1-6 a m., and to finish cleaning 6-7 a.m. E Sherod confirmed that as an overnight aide she primarily does cleaning, though she also testified that she would take care of any emergency and/or (client) illness at night; and, if a client is out after hours, she would initiate the process to find the client. E. Sherod also confirmed it is common prac- tice for an overnight aide to sleep when (night) duties are completed. E Sherod, however, has additionally testified that when she was hired as a trainee , she worked during the hours that the clients are up; and that she then worked with them on different programs. E. Sherod also recalled that at the time she was put in that position, she was told she would be doing that (trainer work) along with the overnight aide work E. Sherod testified that when she first started (as trainer) she worked every Sunday from 12 noon to 11 p.m. as a trainer Her total hours in trainer work varied. If someone was sick, wanted a day off, or something, she would go in at 4 p.m. and work to 11 p.m. On other occasions she relates she would go in 5 or 6 p.m. and work to 11 p m. She worked with the clients, mostly 4 or 5 p.m. to 11 p m. E. Sherod thus claims to have worked with clients as trainer on both weekdays and weekend. E. Sherod testified that she might have worked more hours than that, but she could not recall, as it was too far back E. Sherod did recall that she re- ceived a raise at the time, but did not remember when that was. In regard to her varying recollections of reporting times as a substitute, the variances probably relate to E. Sherod' s interim securing full-time employment else- where In that regard I credit E. Sherod's recollection over any indicated recollection of Westin to the contrary of it being earlier, and I find that in June 1985 she ob- tained employment as an activities director, at Nelson Manor, a nursing home in Newton where she (then and now) works regularly Monday through Friday, 9 a m. to 5 p.m (It does appear, however, that Westin's recollec- tion is uncontested that E. Sherod had also worked at another nursing home job earlier.) At Nelson Manor, as activities director, since June 1985, E Sherod is in charge of all programing Contrary to E. Sherod's testimony, Westin has testified that E. Sherod had not worked as a trainer under his su- pervision. However, Westin has not appeared to specifi- cally address E. Sherod's claim to regular Sunday work, or substitution work as a trainer . Westin testified related- ly that he did not question E Sherod's entitlement to a full raise in 1985, but questioned her existing rate of $4 33 as an overnight aide, a matter (he asserts) over which he had no control Were it not for some ambigui- ty in the nature of his review, it would appear he had (at least) 1985 awareness that E Sherod had been (earlier) assigned to perform work as a trainer in 1984 . However, Westin has asserted that when he spoke to E Sherod about the money paid to E. Sherod he did so as an over- night aide. Thus Westin asserts he asked (form indicated) Department Manager E. Sherod why she was making that much money as an overnight aide; and that he was told it was because of her experience. Petitioner's Exhibit 15 reveals Mather also approved the (last) raise on 20 July 1985, after E. Sherod had on 8 July 1985. Dale Sherod, who notably became vice president in July 1985, does not address this (1985 Westin-E. Sherod) conversation in his testimony. It is, however, clear that the Westin attributed Sherod remark on E. Sherod's ex- perience, even if it is to be (alone) credited, would have occurred shortly after Sherod had obtained full-time em- ployment as activities director at the local nursing home along with the aforenoted work experience at PI and elsewhere. Contrary to E Sherod's further general assertion that she always worked at Progress South apartments, Westin appears of record to have testified on one occasion that after Progress East opened , he worked at the apartments, (seemingly) thus referring to continued work at Progress South. However, Westin then asserts that E. Sherod no longer worked for him thereafter. E. Sherod's recollec- tion of also being supervised by Rory Hill in 1985 would tend to support (at least some) work elsewhere, e.g., at Progress East However, because of the confusion or am- biguity in Westin's account, I credit E . Sherod's testimo- ny that she (essentially) always worked regularly at Progress South-supervised apartments as an overnight aide. Regarding E. Sherod's assertion that she has also worked as a trainer, E. Sherod testified that she worked on different programs while clients were up. E. Sherod testified on other occasion (in reference to working last on-call on 11 October, a Saturday) that by 5 p.m the cli- ents usually have had their supper, and after that she 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would make sure the dishes were clean and that things were put away, and she would then talk and play games with the clients When thereafter questioned why this did not (essentially) come within the ambit of her regular overnight aide cleaning responsibilities, E Sherod drew distinction between working with clients in group homes, and with clients in supervised apartments, then asserting (well confirmed otherwise) that clients in the group homes were totally different than at the apartments, where clients are at an advanced stage, getting ready to go into the community. E. Sherod's clearly claimed per- formance of trainer responsibilities at group homes was not thereafter explicitly pursued In connection with E. Sherod's testimony that her job was changed back to (only) overnight aide, I do observe that documentation thereon has not been presented, and that E. Sherod has also testified that she has continued to perform trainer substitution work up through October; and she is called for such every weekend For these, and other reasons, I have reservation that the change in May was a job change as E Sherod recalls, so much as it was a reduction in wages, and possibly a few scheduled hours, as a number of other employees received about the same time. Westin resigned from managing Progress South super- vised-apartments in April. E Sherod placed her own change in job to overnight aide (only), and contempora- neous decrease in rate of pay from prior rate of $4.45 to present $3.72 rate (73-cent decrease) as occurring about April. As noted, E Sherod remained at full time, then working a regular schedule of 32 hours. E. Sherod was unable to relate her reduction in pay to other reductions (in May) However, as E. Sherod has also recalled that Van der Ley (who came in May) was her supervisor at the time, it is clearly indicated therefrom that the pay re- duction occurred not in April, but in May. Moreover, in light of her continued substitution work as trainer it is far more probable it came as part of other general wage reductions E Sherod has testified that she was not aware of any employee raising a claim that E. Sherod had special status or special privileges or benefits b. The questioned privilege extended to E. Sherod of not attending mandatory meetings E. Sherod testified that she attended all apartment South staff meetings called by her supervisor, but she has acknowledged that she did not attend the regular all-staff (or sometimes referred to in-house) meetings. E. Sherod specifically testified that she was instructed that she had to attend the apartment staff meetings, and she testified she has attended them E Sherod also testified that she was never instructed that she had to be at the in-house all-staff meetings Although acknowledging that they are (essentially) noticed to employees as mandatory, and ex- hibiting some defensiveness about her right to take full- time employment on her own time, E Sherod acknowl- edged that at times those (all-staff) meetings conflicted with her work (program) duties at the local nursing home, but explained that both Van der Ley and Westin had excused her from attendance at such (conflicting) meetings. E. Sherod testified that she knew of no benefit she has at PI that is not available to other employees. E. Sherod also testified that she has no special employment status at PI, as a result of her husband's position, that she is aware of. Westin testified that all employees were expected to attend group meetings, whether the employees were on duty when the meetings were conducted. Westin testified that whether it was an in-house all-staff meeting or an apartment staff meeting that he called, E. Sherod was not required to attend the meeting, if it interfered with her work schedule (at another place of employment) during the day. Westin denied that he had excused E. Sherod from attendance; and he testified that it was E. Sherod who told him that Sherod did not have to attend. Initially experiencing difficulty in remembering Dale Sherod's statement, Westin first related it was something to the effect that because of her job and that stuff, E. Sherod would not be required to attend if she had other jobs. However, Westin added, there were other staff that had jobs too that had to attend. On subsequent examina- tion Westin then related that Dale E. Sherod had said simply that she would not have to attend; and that she was working another job, so she did not need to attend. When Westin asked why, and said other people are working, E Sherod said, she just does not have to attend; and she has had more experience With (aforenoted confused) reference to occurrence shortly after group home openings, and a further (erroneous) reference to E. Sherod's prior employment as activities director at the nursing home (which I have found occurred in June 1985), Westin relates (unconvincingly) that the conversa- tion with E Sherod occurred approximately February- March 1984 and that E. Sherod had not had to attend meetings since then. Westin otherwise testified that as a supervisor of an area, if an employee was aware of the meeting and simply did not come, he would have written them up. Westin testified that he has counseled employees who did not attend a meeting On cross-examination Westin recalled that he counseled and wrote up part-time staff employee Darla Howard (initially) for not attending a meeting Howard had another job. On further examina- tion Westin testified, that he did not formally write up Howard, i.e., of record that went into her file, that he had written it up, and kept it in his own file. However, Westin then did not recall whether he kept it in his own file, left it at PI, or where it was Westin at first testified that he believed Howard's other job, one obtained after employ by PI, had interfered with Howard' s attendance at the meeting; but later acknowledged that the time of meetings varied, and that he did not recall if Howard was specifically not scheduled for work when she did not come to the meeting. Even more significantly, fur- ther examination established that Howard had not been doing (performing PI work) properly, including missing a couple of (PI) days of work, that she was suffering pregnancy sickness, appeared overworked, and was be- coming run down; and that after discussion with Sherod it was decided to give Howard an ultimatum, to either give up the other job and keep this one, or leave PI, or else make sure that she was there on time for work Westin relates when the ultimatum was delivered, PROGRESS INDUSTRIES 733 Howard (simply) threw the keys down and left , effec- tively quit . This incident occurred about March 1985 Westin otherwise did not recall if he had ever formally written up any employee for a failure to attend a meet- ing. Westin did recall counseling another employee, Ber- nice Shannon , at Progress East (thus earlier) for not at- tending a meeting , but Westin did not claim another fob consideration was there involved. Westin also testified that he did not know if there were other employees not under his supervision who might have been excused from attending meetings E Sherod in contrast testified that she knew of another em- ployee who had been excused from attedning all-staff meetings because he worked at another job, Don Kelsey, who formerly worked at the apartments and who now worked at the relief center . This testimony stands uncon- troverted . Finally Carr testified that most of the meeting were mandatory, but she was not sure all were; and, more significantly, that a lot of times she could not make meetings because she was working , though adding we always had to inform the supervisor if we could nto attend. Analysis The Union has essentially contended that E . Sherod should be excluded as a voter because she has been treat- ed differently than other employees regarding her classi- fication, receiving considerably more pay than other overnight aides, and in light of E. Sherod not being re- quired to attend staff meetings . The Employer essentially contends that E. Sherod should be credited insofar as she has testified that she did work regularly as a trainer on Sunday, and otherwise on call ; and that E Sherod has not been shown to have been treated differently in allow- ance made for nonattendance at a staff meeting that con- flicted with her full-time activities director job, because another employee had been similarly excused, for the same reason. Concerning the latter consideration of an excused at- tendance at staff meetings that conflicted with her full- time job, I am persuaded the evidence simply does not establish, and wholly apart from any related consider- ation of her work experience , that E Sherod received fa- vored treatment not afforded other employees similarly situated , e.g , as in the uncontroverted case of Kelsey In my view , the circumstances of Howard , as described by Westin are wholly dissimilar to those applicable to E Sherod, and the counseling of Shannon is not shown to have occurred in other job conflict circumstances. Thus concerning the matter of excused attendance from staff meetings that conflicted with her full -time (day) job at the nursing home, I am persuaded that the evidence simply does not establish (even apart from an evaluative consideration of her experience) that E Sherod received favored treatment that has not been afforded to other employees similarly situated . (Carr, who worked for Beeler, has not testified that she was ever denied an ex- cused attendance when there was conflict with her other work.) The matter of the 72-cent raise granted E . Sherod in 1984 presents the closer question . The question is raised, in my view , because the record does not establish that any other employee, e g , one combining overnight aide and trainer duties, has received a similar wage increase Nonetheless the facts are also clear that in addition to ex- perience, and length of time on the job, E. Sherod testi- fied clearly that she did perform additional trainer duties regularly every Sunday, as well as fulfilling the valuable function of being regularly available for such assignment on-call as need developed. It is observed that the only other overnight aide under Westin's supervision , a part- time aide that replaced Sellers on Sunday night, was conceded as not comparable to E. Sherod Finally the additional trainer job assignment and 72- cent raise granted E . Sherod" in 1984 was not just on ap- proval of E. Sherod, but also had the awareness and ap- proval of Mather. The wage rates offered others, e.g., Barwegen, respecting temporary job offerings does not indicate disparate treatment of E Sherod At that time Barwegen was (essentially) a laid-off probationary em- ployee at the time of the general reduction in force and a period of wage retrenchment, and E Sherod in context at the time was not only a longtime (still) full-time em- ployee, but she also contemporaneously suffered a 73- cent wage reduction Although the issue may be viewed as one not wholly free from doubt, principally because of the apparent absence of any other employee similarly oc- cupying combined overnight aide/trainer position and paid at that rate, and because E. Sherod for most of her workweek worked as an overnight aide, it is nonetheless concluded and found that the 1984 additional assignment of trainer duties to E Sherod , coupled with annual review and 72-cent raise increase, particularly as com- bined with change to full time, does not convince me on this record that E. Sherod is thereby shown to have re- ceived favored treatment (in 1984) of such nature as to (alone) warrant her exclusion from the unit of employ- ees. Terraillon Corp., 200 NLRB 366 (1980) Accordingly I shall recommend that the challenge to the ballot of Evelyn Sherod be overruled and that her ballot be opened and counted. See also United Sueprmarkets, 261 NLRB 1291, 1318 (1982); and Riverside Community Me- morial Hospital, 250 NLRB 1355 (1980) c. Joan Tyler, Betty Wilcox, and Bill Lien (1) Development Coordinator Joan Tyler Tyler obtained a bachelor of arts degree (with major in speech) from the University of Northern Iowa in 1953. For the next 7 years Tyler worked in the public school system, initially 5 years as a kindergarten teacher, and then 2 years as an elementary school librarian. Tyler had not been employed from 1960 until her employ by PI in July 1985. However, Tyler had been active in the community, and for (at least) 5 years prior to PI employ- ment had served as a trustee for both PIF and PI with regular assignment to a development (fund raising) com- mittee. It will be recalled that PI and PIF trustees reqularly serve on various PI and/or PIF committees, e g., on de- velopment, publicity (or public relations), production, and finance committees. It appears the development committee is a PIF committee Each of these committees 734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD however is structured to be composed of trustees from both boards (PI and PIF) Assignment of PIF trustees to PIF committee is made by PIF board president, who is also an ex-officio member of the committee Tyler has thus testified credibly that the PIF develop- ment committee is principally made up of trustees from both PI and PIF boards of trustees. There is also appar- ently one nontrustee on the development committee. An attorney serves on the development committee and is available for consultation by Tyler Tyler has also testi- fied: that the development committee proposes policy for PIF gift-giving strategies; insofar as she knows it has op- erated by concensus, not by vote; and it is the body that makes most of the policy that she now carries out though she is now paid as an employee of PI to do it. Tyler had previously (apparently) chaired the Develop- ment Committee (Tyler has served as well on PI and PIF public relation committee(s) ) Tyler explained her employ with PI Tyler relates that money raised by development work goes to PIF PIF has no employees PIF presently funds her job with PI Tyler's understanding of the arrangement is that to avoid administrative process associated with employment, PIF contracted with PI for PI to employ Tyler to provide her service to PIF Thus PIF purchases her work, for which she is paid by PI After consultations between Mather and Tyler, initial goals for her position were set and proposed for a year term, which was initially re- duced by PIF to a period of 6 months. Tyler is currently employed on a continuing basis, but continues in PI employ at the will of PI and PIF board Although Tyler began employment on 30 July 1985, PIF board decision on the arrangement occurred on 30 August 1985 and funding arrangement was finally approved by PIF Board President William F. Vernon Jr, and PI President Mather, on 4 September 1985 Tyler, however, was at that time paid for the work performed in interim and thereafter. (PI/PIF Seventh Annual (1985) Report) PIF chair report, page 4, reflects, "In order to increase our private cash gifts we funded a part-time development co- ordinator. The results are outstanding, we realized a 40% increase in cash gift dollars and an 82% increase in num- bers of people making deferred gifts." As part of the PI employment arrangement , Tyler re- signed as a trustee of PI Tyler asserts that she resigned as (PI) trustee so that as an employee of PI she would not have a conflict of interest with the board Tyler re- lates in that connection that when they decided to have a more active development effort, it was also decided it would be improper for her to be a policymaker and an employee. However, Tyler has otherwise revealingly summarized that prior to PI employment she was doing the same things as a volunteer and trustee on the devel- opment committee, only now she does more of it; in a sense all she does is carry out the stepped-up programs of the PIF development committee; and that most of her work is for the development committee as they are an arm of both boards Tyler's declared responsibility (as approved in Septem- ber 1985) is for coordinating fund-raising efforts for gifts from people and from the community, and apparently ex- cepts only "United Way" which has always been, and is handled by Mather. In general , Newton, Iowa, a city of approximately 10- square miles, has a population of 16,000-17,000 individ- uals; and it is located about 30 miles east of Des Moines, in Jasper County. The community of Jasper County has approximately 36,000 inhabitants . Tyler is involved with long and short-range funding plans in these areas. Tyler gave as examples of long-range funding, the obtaining of gifts with a future interest , e.g , gifts from wills, life in- surance (proceeds), and charitable trusts. Programs in short-range funding are an annual fund , memorial giving programs and special event fundraisers . Tyler does not do many social teas, lunches, etc ., but she tries each year to have an appreciation event for special friends. PI has a "Heritage Club" composed of future givers and people who have already given significant gifts of property or cash Tyler reports directly to Mather . Tyler has testified that she does not take part in actual formulation and ef- fectuation of management policies. On the other hand Tyler has acknowledged that she meets with Mather to set short and long-range plans, which are probably pre- sented to the development committee, though they might go to the board of trustees in an annual presentation. Tyler has daily contact with Mather, and on some days she has several contacts with Mather on development matters The purposes of her meetings may be to obtain Mather's authorization on a matter , or to seek his advice, or to keep him abreast of developments Tyler makes a monthly report to the PIF board and, on occasion, goes before the board to clarify , e.g , on a matter of special interest Tyler routinely keeps PIF appraised of what is happening in development Although this activity was apparently interrupted for a time , viz, from the time when Tyler's status became uncertain in the DDE through election, Tyler has (postelection) resumed that function . Tyler makes both oral and written reports to the Board . Written reports may be 8-10 pages. Prior to her employment by PI, Tyler essentially oper- ated in accordance with a PI prepared job description, but essentially as a volunteer (informal ) consultant. When PI employed Tyler on 30 July 1985, that job description was revised in certain respects . The current job descrip- tion as approved reflects, inter alia, her basic function is: "With general direction from the President and the Trustees and Development Committee of the PI Founda- tion promotes PI Client program services and encour- ages persons to contribute through various means to PI Foundation " The position classification is described as "Administrative." Tyler coordinates and implements development plans Coordination is accomplished by her regular check of a list (of operations) and presentments before the develop- ment committee to try to see that they move on all fronts. Tyler will write development (program) articles, and PIF articles for the PI newsletter; and she writes let- ters in pursuit of programs to encourage people to make wills Although Tyler has the aid of an attorney, and there is a review by Mather, Tyler acknowledged she has the principal input In addition to draft of letters to PROGRESS INDUSTRIES special friends, Tyler gave other examples of her draft of a letter for Mather's signature addressed to attorneys in the county as a reminder on the subject of charitable gifts to PIF (and other organizations ). Tyler has had pre- pared, and personally delivered to attorney (bar) meeting business cardholders for each attorney, which carry simi- lar reminder . Tyler drafts the letter to be sent to busi- nesses in regard to an annual fund program Tyler imple- ments the development program variously- through visits with prospective givers; by meeting with a group of friends engaged in a plan for special funding event, e g , in a community group effort to raise money to buy a van (and equipment) for a new janitorial service, and by en- couraging development of this community group to serve as a continuing committee for similar purposes; by providing programs on wills, which are opened to the public; and by encouraging various church and civic group tours of the facilities. Tyler is hourly paid at a rate of $6 50 (or $6.60) an hour . As a regular part-time employee (without benefits) Tyler normally works 20 hours a week. Tyler generally tries to work 9 a.m. to 4:15 p.m , 3 days a week, though she has no set schedule, may vary the schedule as need arises, and pretty much sets her own schedule. Tyler completes a timecard . Tyler does little work at home; and when she does, she does not count it. Tyler also does not seek reimbursement for travel in personal car in and around Newton Until postelection grant of a credit card, Tyler could not pledge PI credit without Mather approval . PI provides (personal) business cards to Tyler that identifies Tyler as development coordinator. Tyler operates for the most part out of her (main facil- ity) office, spending but 10 percent away from the office. Tyler shares an office at the main facility with Public Relations Coordinator Betty Wilcox Each has a desk and separate phone. Each helps the other in their respec- tive work. (The publicity committee takes care of the publicity for a fundraising event ) Tyler has testified that her job is predominately intel- lectual, but she also does a lot of typing and errand-run- ning. Tyler testified that she does not believe the work she does requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learing or hospital; and no state or Federal license is required of her to do the work However, Tyler readily acknowledged that there are specialized things to know (in fundraising) that would be helpful, and she is presently doing develop- ment work without benefit of these. Tyler is a member (as is Mather) of the National Soci- ety of Fund Raising Executives (NSFRE), a support or- ganization for people working in nonprofit fund raising Tyler attends monthly meetings of NSFRE held in Des Moines, but not every month. According to Tyler there are no special requirements for membership other than working in some fundraising capacity for an agency, and a payment of dues. NSFRE luncheon fees for Tyler are billed to PI office, and she is reimbursed for any associat- ed expense . Tyler acknowledged that there is a "certified fund raising executive" status for all persons who are full-time institutional fundraisers . One of Tyler's estab- 735 lished goals for 1986 was (No 9) "Pursue Certification as a Fund Raiser." Although passing a test is involved, Tyler does not qualify because she is not full time. In April, Tyler also had attended the national convention of NSFRE held in Chicago, Illinois Tyler has interacted with case managers occasionally, and talked with some parents of clients. Although she has visited with clients, she has not done so as part of her development job. Tyler does not replace supervisors; and she has no production or residential supervisory au- thority or responsibility . Tyler testified that she does not have knowledge , or receive information relating to labor relations or personnel matters. Tyler has attended all staff meetings, which are irregularly held (for some in- formational purpose). Tyler regularly attends a management meeting held every week on Wednesday . Tyler describes the (Wednes- day) meetings were informative interchanges of what has happened (or to happen) in the week, with statement of (past) accomplishments, and goals for the week . In that regard, Tyler has testified that when it became a possibil- ity that she might be in the bargaining unit and a voter, she (and challenged voters Wilcox and Lien) continued to attend and give reports, but were excused if manage- ment strategy, or anything relating to the Union, was going to be discussed . Tyler clarified having heard dis- cussion in the meetings as to certain general matters, e g., status of election date, but denied hearing a discussion (indicated in meeting minutes ) on vote-no committee and individuals eligible; and did not recall other subject, e.g., on the unit being completely defined , to 6e discussed fur- ther infra. Tyler has otherwise testified severally: that she makes quite a few independent judgments, but keeps Mather ap- praised of what she is doing; that she makes a lot of deci- sions on strategies for gift-giving, which she proposes to Mather, who generally concurs, though they also present a plan for concurrence of the development committee and PIF board Tyler has acknowledged that her deci- sions ultimately affect how we go about gift -giving; and although they do not affect employees directly, they do affect all ultimately . Obviously the funds generated for PIF help support the running of PI operations. (2) Public Relations Coordinator Betty Wilcox Wilcox obtained a bachelor of arts degree (with major in English and minors in drama and French) from Cor- nell University in 1958. After teaching school for 2 years, Wilcox relates that she thereafter had some, but no real employment for 23 years . Mather, however, has testified that she felt the degree in English was necessary to do the publications and to communicate written mat- ters. Moreover , the record reveals that in this period Wilcox had been very involved in community affairs of Newton, where she has lived for 25 years.7 Wilcox is a 7 Wilcox, e g , has served as a volunteer on the board of Peck Child Development Center , as president of Jasper County Concert Association, for 6 years on the Newton Community School Board, in the 1980s, as vice chairman of United Way, as president of the Girls ' Softball Associa- tion, and on various other volunteer boards , most recently (apparently) a Youth Center Mather viewed these social and civic activities as also a consideration 736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD member of PI and PIF public relations committees, as is or (at least in 1985) was Joan Tyler In material time, Robert Hoover served as chair Hoover is currently em- ployed by the Maytag Co. in a managerial position over public relations. PI first employed Wilcox some 3 years ago and, mate- rially, since August 22, 1983, as public relations coordi- nator, at $6 60 per hour, without (life insurance, medical) benefits. Mather is Wilcox's direct supervisor, though in Mather's absence, Wilcox would report to Sherod. Wilcox regularly works 20-30 hours a week, though in some weeks she may work 40 hours Wilcox is paid overtime for over 40 hours of work in a week, but she avoids working overtime, as it puts her over her allowed budget (Mather confirmed that Wilcox works flexible hours; on a year basis, averages less than 30; and fills out a timecard for hours worked. Mather confirmed to his recollection Wilcox had worked overtime only once) At her discretion, a lot of the time Wilcox will work (write) at home, for which work she is paid; though Wilcox will normally report to Mather what she is going to do for the week. PI takes out social security and withholds taxes from her pay; and PI provides Wilcox with work- men's compensation coverage. Wilcox may use the same restroom, and general purpose break area as is available to all staff. Wilcox describes her duties are (essentially) to pro- mote an understanding of PI to the general community or public In that respect, Wilcox testified that clients are not going to be successful unless integrated into the com- munity; and, with Government funding decreasing all the time, it is really important that PI gets its message to people, and that donations become greater. On other oc- casions Wilcox described the PI message as being ad- dressed not only to the needs, but the abilities of people with disabilities. In regard to donations, Wilcox works in close conjunction with development coordinator Tyler Although each has their own desk and phone, Wilcox testified their work is related, and that she and Tyler answer each other's phone. Wilcox and Tyler worked to- gether with Friends of Progress (a community group) on a project to fund a van, etc., for a new work project for clients in the community According to Wilcox, she has essentially received her training (in public relations) on the job; and in that re- spect she works closely with Mather, though she has also received aid and advice in public relations matters from the PI/PIF public relations (volunteer) committee(s), and particularly Chairman Hoover. Wilcox is provided a PI public relations coordinator business card. She has never used PI credit cards; and she does not have purchase or pledge crediting authority without Mather's or Sherod's or (occasionally) another manager's approval, though she has made minor ($1-$2) purchases on her own. Wilcox fills out a report on any personal ex- penses incurred and submits it for reimbursement Wilcox is regularly involved in news and TV releases and in the publication of a PI newsletter. Wilcox testified that coordinator is a good description of what she does. Wilcox relates that she carefully checks with other staff to make sure she has correct information, and that it is not too embelished. She spends very little time at the group homes, e g., she may be there for an occasional tour. She has arranged tours of school children with teachers in PI buses, with Mather's approval. Wilcox ex- plained it is good if we can train the young not to be superstitious; and they will be a little better in their atti- tude (towards handicapped) than we are. Part of Wil- cox's media relations program is to always deliver re- leases to radio and newspaper by hand (a Hoover recom- mendation) to obtain a better chance of obtaining publi- cation. She also works on footage releases for TV, con- sulting with Mather and Tyler about what the principal message should be Wilcox does not have a (personal) secretary, and she does almost all required (media, newsletter, and report, discussed infra) typing herself. On occasion Wilcox has had the use of Mather's secretary for certain typing relat- ed to special award letter(s), discussed infra. Otherwise, there is a special education individual (confined to a wheelchair) who is undergoing training (during school year), who is assigned to type thank you (recognition) notes for donations when received. However, Wilcox re- lates she is not involved in the assignment of personnel, and she does not supervise anyone; she does not substi- tute for other supervision; and she has no production schedule or client activity responsibilities Wilcox may also work on special community pro- grams, e.g., a Thanksgiving Day dinner, to be put on by church volunteers, some of whom would stay for a tour of PI facilities. The idea for this program originated with Sherod and was approved by Mather, but the details and implementation were accomplished by Wilcox in the sense of working directly with an interested community church group to carry out the program. Like Tyler, Wilcox endeavors to have such a group continue to be active for PI Wilcox has also handled logistics for a po- litical tour of PI facilities and similarly arranges tours for social organizations. Wilcox works on a periodic PI newsletter that may in- clude PIF (requested) items. Many times Mather will provide Wilcox with (newsworthy) material, e.g., some matter of interest that may involve another rehabilitation organization or some matter of recent national legisla- tion. Wilcox also prepares similar items of interst center- ing on clients served and/or their (noteable) accomplish- ment. In the case of a publication involving a client, e.g., regarding National Employ the Handicapped Week, or a PI community advertising project, e g., one urging jobs be given to the disabled, or other similar use of clients, Wilcox will first request the case manager to obtain a re- lease from the client Wilcox may work with a client on a story two to three evenings in a week. Wilcox will redo or edit the various news material for Mathers's final review before publishing. Wilcox testified that another good way to publicize what PI does is by awards. In addition to Mather, who has won two awards, Karen (Van de Kamp), Cade as PI financial director, won an award in 1985; and Wilcox most recently worked on two recognition awards for a local newspaper's aid to its community. Wilcox won an award herself in 1986, infra. PROGRESS INDUSTRIES 737 In connection with her duties, Wilcox attends educa- tional meetings, usually out of town, to exchange infor- mation with other rehabilitation people and other public relations people. Wilcox testified that no state or Federal license is required of her in her work Wilcox has attend- ed meetings. of NSFRE (as do Mather and Tyler), the Governor's Planning Council for Developmental Disabil- ities (Governor's Council), and Public Relations Society of America (PRSA). Mather confirmed that Wilcox at- tended an NSFRE meeting (as his guest) where the sub- ject discussed was how to develop a donor list, and that on 28 May, at a Wednesday morning management meet- ing, discussed further infra, she reviewed a program she was to attend at Iowa University Forum regarding what blocks exemplary programs. Wilcox makes appropriate reports back to PI including discussing new theoretical developments for the benefit of staff managers, as well as collecting literature thereon to keep them generally in- formed Wilcox does not pay the cost of attendance at meetings, and she has been reimbursed for related fees and,expenses, e.g, PRSA meetings, though she does not always turn them in Wilcox attends 8 of the 12 monthly PRSA meetings. Wilcox regularly attends meetings of JCARC as it is deemed important to get information from this group about what they desire to have presented to the commu- nity. Regarding the Governor's Council, parents of cli- ents, social workers, and workshop directors attend. The purpose of Wilcox's attendance at the Governor's Coun- cil is (essentially) to identify any obstacles to a full ac- ceptance of PI in the community. Mather appears to have conceded that Wilcox has exercised independent judgment in some of these areas. In any event, on weight of evidence I find Wilcox has exercised selective and in- dependent judgment in many of these areas Wilcox is a member of PRSA. Membership require- ment for PRSA is performance of some type of public relations work. To become accredited in public relations (APR) an individual has to have worked in public rela- tions for 5 years and pass on oral and written test Wilcox is not (presently) APR certified. The Petitioner established that Wilcox was awarded the 1986 Cordelia Shevling Ellis Memorial Award, given by the National Rehabilitation Association, Great Plains (10-state) Region (of which Wilcox is not a member), in recognition of outstanding public information programs that promote rehabilitation services and opportunities for developmen- tally disabled individuals . In that connection the Union would rely on (contended) admissions in a related press release, prepared by Wilcox and approved by Mather. This release severally refers to Wilcox being, "recently honored by other rehabilitation professionals" and with purported quote of Wilcox personal reliance on, inter aha, "other rehabilitation professionals " Wilcox, howev- er, has questioned the meaning of professional, and (on basis essentially of dedication) would herself broadly apply it to other unit employees, clearly not professional under the Act, e.g., aides. Wilcox has relatedly testified that she (personally) does not have rehabilitation training , and has to be care- ful in listening to what she is told (by those who do). Wilcox asserts that she does not participate in the formu- lation and effectuation of PI management policy, that she does not receive (have) knowledge of labor relations and personnel matters, that she has no access to personnel files; that she is not supposed to comment in the press on personnel matters, and that in regard to her own exercise of independent judgment (on releases), the bottom line is a Mather approval because thousands of people are af- fected by what information goes out (Mather has testi- fied (generally) that everything that goes to the public has to clear my office ) On the other hand, Wilcox acknowledged that she lis- tens and reads five times as much as she writes and relies on many people (as sources) for information, viz, those with disabilities, their relatives, and friends, other reha- bilitation professionals; interested community organiza- tions, and the print and broadcast media In connection with the media, the Union has shown by credible docu- mentary evidence that PI has an established written policy (P. Exh 9) that identifies President Mather as having the primary responsibility to inform the public of PI and its role as a rehabilitative agency, but that as- signed responsibility for implementation belongs to Public Relations Coordinator Wilcox. Moreover, that same policy provides that all releases to the media will be "routed through the president and/or the public relations coordinator prior to printing and/or dissemination to the public." Wilcox has spoken of this very requirement, at all-staff meetings Mather has testified that if he and Sherod were not there, Wilcox may have done it (ap- proved release to media). Mather added, however, he did not know that, but he did know that Wilcox had gone to the PI board chair to check on things. Although on one occasion asserting he prepares public relations goals, Mather has on other occasion confirmed that Wilcox has assisted in preparation of short- and long-range public relations plans (albeit) in further com- bination with the public relations committee Goals cov- ered such items as how many and dates of newsletters to be published in a year; the annual report, due date, and content, and generally how PI would communicate its activities, and the desired frequency for items to appear in media (These would all appear as policy matters.) With regard to Wilcox's implementation, Mather asserts that Wilcox cannot vary the plan when established, but he has affirmed she has to implement it In regard to annual report preparation , managers turn their reports into Mather. Mather and Wilcox (essentially) then go over the reports to construct the annual report (For result, see 1985 report, E Exh 11) Another assigned re- sponsibility of Wilcox is to review past and present pro- grams and to recommend changes. Mather has also confirmed that Wilcox's job includes her development of speaker's bureau Wilcox personally speaks to organizations, and she will also suggest things that can be used by PI managers who are to give similar talks Wilcox handles the arrangements for PI's annual meeting, e.g , finds the speaker (with Mather approval) and plans the seating, and Wilcox has also taken part in the review of past and present programs, recommending appropriate changes. 738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wilcox (as do Tyler and Lien) regularly, but not always, attend management meetings held on every Wednesday morning. Regularly attending such meetings are conceded Managers Mather, Sherod (Van de Kamp) Cade, Bartello, McClurg, Van der Ley, and Anderson. (Others have attended, but only occasionally, e g , Fer- rone as substitute for McClurg to report on what was happening in rehabilitation, and Gail Peterson to special- ly report on community placement matters.) Wilcox ex- plains her own attendance with relation that when she initially started in public relations work, Hoover had in- formed her that the hardest thing in the job would be to get people to tell her what was happening In a related discussion with Mather, Mather told Wilcox that the fastest way (to do that) would be for her to sit in on Wednesday morning meetings , as someone from every service was there. According to Wilcox that is the main reason why she attends, viz, to get what are the impor- tant messages to the community The Union however has established that Wilcox (and Tyler and Lien as well) regularly give (structured) re- ports on their area of responsibility at this management meeting. Moreover, Westin has testified, without appar- ent contradiction, that when he asked Sherod if he could attend the Wednesday morning management meetings, Sherod told Westin that he could not attend and that they (the meetings) were for upper-level management only. When Westin asked Sherod, "Why can't we know what's going on," Sherod then told Westin that maybe Sherod would arrange copies of the minutes of the meet- ings, but "you (Westin) won't get it all, because some of it is confidential information " Thereafter Westin did re- ceive copy of the minutes of the meetings, which Westin summarized contained general information, e.g., what new jobs were obtained, and how the week's production compared to last. Sherod has not (certainly not effective- ly) refuted this Westin testimony Wilcox has testified that she was told (after DDE issued 5 June) that she should not attend the meetings; that she did not believe that she had done so, beyond staying just to give her regular report; and she confirmed that when union matters came up, she (and Tyler and Lien) was (were) asked to leave the meeting Mather tes- tified relatedly once we learned who was in the unit, we made a conscious effort not to break the rules, and they asked Wilcox (Tyler and Lien) to leave if the union or- ganization was going to be discussed Mather has testified that for a period of time Wilcox presented an oral report to PI board , along with some written material, but currently, and for about 6 months now she is just submitting a (seemingly written) report about public relation activities. However, Mather has ac- knowledged that the PIF board meets every other month with the PI board, and that Wilcox writes a report (for it) of what took place previously, and if Wilcox is there she attends Wilcox prepares and delivers written and oral reports to PI/PIF board , and she usually has copies of everything about PI (appearing) in the newspapers, for the board members to see. In regard to assertion gen- erally that Wilcox has not been going there recently, the Union has established from minutes of PI (special) meet- ing held on 23 June, that Wilcox (and Tyler and Sherod) was (were) present as "guests." Moreover, these minutes (P. Exh. 20) record that an approved agenda item was that Wilcox would be added to committee reports (public relations), and her public relations report on that occasion is recorded as covering (essentially)- (a) a news- paper article on staff cuts; and (b) that nothing about union organizing activities has been reported on radio or (in) the newspaper . Wilcox however asserts she just hands out information, does not make remarks; and this (latter remark) was a liberty, and/or someone has drawn that conclusion from what she did report. According to Wilcox she does not get a copy of these minutes, and had no opportunity to correct them. There are further confidential references in these min- utes on matters related to the Union . Pertinently and chiefly noted in passing, the minutes contain statement: Mather explained that P.I. is in a better position to defend the union-organizing activities issue due to the fact that the unit went from 45 to 56 people. The additional people were professional staff, pri- marily salaried people , who want to be union free. Wilcox testified that she did not recall hearing that; and she is sure she would have left by that time. The minutes do not reflect Wilcox (or Tyler) being requested to leave. Nonetheless, I credit Wilcox (and Tyler and Lien) that they have been asked to leave Wednesday morning man- agement and board meetings when management strategy discussion about the Union are to take place; and that they have done so as they have testified. However, Wilcox, Tyler, and Lien still attend the Wednesday morning management meetings. (3) William Lien, sales and marketing coordinator Lien obtained a business administration and education degree from Drake University in 1960. Although Lien has been active in various business, social , and religious organizations, Lien was not a member of any profession- al organization for (at least) a year prior to election. After graduation Lien had worked as a bookkeeper, and in management training at a department store. Lien thereafter worked in the purchasing department of a couple of large corporations. (Lien had also owned his own business in an interim undisclosed period of time.) All three businesses he worked for had required a degree. After being last laid off by Windpower Corp., a manufacturer of tractor -driven generators, Lien took a job at a Newton Seed store as a counter salesman. Lien worked there for 2 months , while looking for other em- ployment The owner of the Newton Seed store recom- mended Lien to Mather for employment. In a subsequent interview with Mather , they mutually discussed sales (essentially) in connection with what Mather wanted to do in training the handicapped, and in regard to the type of jobs that were needed at PI that would provide paid work for clients. On 18 June 1984, PI hired Lien as its marketing and sales coordinator. Lien's basic function, as described in written job descrip- tion (G.C. Exh. 2), in addition to attaining certain estab- lished goals in areas of prime manufacturing and subcon- tract work, and microfilming , is to, "Be responsible for PROGRESS INDUSTRIES 739 the development and implementation of a marketing and sales plan for Progress Industries subcontract work and prime manufacturing." Lien reports directly to Mather. His responsibilities, besides making related sales calls, and preparation and maintenance of related documenta- tion, were to meet at least weekly with Mather and the production manager - to review sales activities and to assist in the development and pricing of potential work when requested by the production manager. In that con- nection, inter alia, Lien would take orders and negotiate for products or services within guidelines of agency pro- cedures; and he was to also monitor internal production to assure a compliance with customer requirements. In connection with sales and marketing, Lien is required, inter alia, to have considerable knowledge of laws, rules, and regulations pertaining to workshop sales; to have knowledge of the production capacity of the workshop and of production time requirements; and to have knowl- edge of the overall workshop program and its rehabilita- tion goals and be able to explain them to interested groups and customers. Although the,fact that Lien had obtained a degree ap- peared in his submitted resume (as well as his prior busi- ness experience), Lien has related that he did not believe that his possession of a degree was a qualifying criteria. Lien's signed job description, however, provides for re- quired minimum training and experience that, in my view, reasonably establishes the contrary, viz, that the in- cumbent have: "Such training as may have been gained through graduation from a college or university and two years of professional sales work experience as relates to the above job requirements; or an equivalent combina- tion of training and experience." In February 1985, at the height of PI's production season, Stan Gramkee (former) PI production manager, left PI to take a position as executive director with Tenco Industries. At that time Mather asked Lien to move over to production manager on a lateral and tem- porary or, indefinite basis. At that time it appears uncon- tested that Lien had authority to negotiate PI business; to sign contracts; to issue and/or authorize PI purchases; and to resolve any unit production problems. In short he was then clearly a manager as his successor in that job (Bartello) is conceded to be. However, in mid-August 1985, Lien moved back to the position of sales and mar- keting coordinator, when Mather indicated he thought Lien could get more contracts or labor intensive jobs for PI if Lien went out on the road full time, which Lien then did. (]Presumably, Bartello was hired as a new pro- duction manager about the same time.) At the time of the election, Lien was salaried and paid in excess of $25,000 a year. This amount is shown of record as considerably more (approximately $10,000 or more) than the highest paid employee (case manager) shown to have been included in the unit. Lien is paid no commission, and apparently (presently) is to receive no annual or performance bonus as sales and marketing co- ordinator although when initially hired it was to be oth- erwise. (Lien explained that when transferred to the pro- duction manager's position Lien was informed he would not receive a bonus, and he had not been told otherwise when reassigned back to sales and marketing coordina- tor.) Lien does receive 3 weeks' vacation, keyed to his anniversary date. Lien submits his vacation request to Mather, and he is allowed to carry vacation time over. Lien does not punch a timeclock, but accounts on a calendar the days he comes to work. Lien sometimes works over 40 hours, but does not get extra pay for it as he is salary-exempt; and Lien otherwise asserts that most of those who work over 40 hours a week take compensa- tory time off. Lien has his own office in the plant, but is away from the office anywhere from 50 to 70 percent of the time. Lien acknowledged that he works pretty much by himself and that he decides when he will leave the building, although he usually notifies the receptionist. Lien uses his own car in his work, as is required by PI. PI also recommends that he carry certain insurance limits. Lien is reimbursed for hotel and other expenses. Lien has testified that he is not presently involved in policymaking; and that he does not believe his work re- quires knowledge of an advanced type in a field of sci- ence or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital. Lien pos- sesses no state or Federal license needed for the perform- ance of his job tasks. He relates that as of election day he had no access to knowledge, data, or records pertaining to PI labor relations. Lien also asserts that at that time he also had no responsibility for production schedules; he made no recommendations with regard to assignment of personnel; and he had no responsibility for coordinating plant activities. Lien describes his present job (generally) as going out in the field to try and find labor intensive jobs to bring into PI for the clients to work on; and he has to sell cus- tomers on the -fact clients can do the job for them, though Lien has also acknowledged that from time to time PI's regular employees have performed jobs on the work brought in. Regarding the prime manufacturing aspect, Lien testified that we keep looking for something that would be a good saleable item to the public or some company, and that would generate income for PI but so far they have not found it. Primarily, regarding present material consideration, PI does subcontract work. Lien relates that the normal procedure on a quote for such a job is that someone figures out the time it is going to take to do the particular job. In that regard, PI em- ploys an industrial engineer, Cal Crook, on a contract basis. Most of the time Lien brings in the job specifica- tions (from the potential customer). Lien works with Crook, and discusses the job with Bartello regarding what processes are involved, and what needs to be done to get the job out. Essentially they first set (establish) the time for a normal person to do the job Crook brings it to Lien, who reviews it to see everything is covered; and Production Manager Bartello then reviews it. Lien has testified that it is Bartello who has authority to say, "That's what we will do it at." Lien, however, has also testified, that the three come up with a price; and all have to be in accord, before PI presents a quote to the customer. If a job involves an assembly, if Lien can, he brings in the part(s) they are going to assemble. Usually, Lien and 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Crook sit down with it. If Crook is not available, Lien and Bartello do They hash out how the job should be done. Crook, or someone, does a timestudy. Crook usual- ly brings a quote to Lien. Lien takes the quote and/or timestudy and reviews it to make sure all the steps are in, and that the figures add up right. Lien brings the quote and/or timestudy to Bartello, and they go over it again and then determine a price. In that regard Lien has also testified that if he (Lien) is not there, Bartello will determine the price; and if Bar- tello is not there, Lien (with the consultation of Crook) will determine the price, if there is no serious question If, however, the matter involves a lot of plant time or investment of money in capital equipment, Lien will go to Mather or Sherod If the required capital expenditure is $200-$300 Lien will not go to anyone Most of the time Crook (apparently) gets up the quotes Either Lien or Bartello will type a quote, and whoever types the quote signs it If further negotiations are required, either Lien or Bartello may handle them, but usually, in those instances, Mather makes the final decision. Otherwise Lien has testified that he does not (now) recommend production schedules, unless a customer asks to have it done in a certain time In general, Lien is the liaison between the customer and PI production If Bar- tello has a problem, Lien relays it to customer If the customer wants production speeded up, Lien goes to Bartello to see if they can Lien has testified that since his move back to sales and marketing coordinator he has not exercised purchasing authority over $30 As noted Lien also brings in microfilm work that cli- ents work on Lien obtains the documents, which are first sorted (if necessary), and they are next put under a plenetary, or rotary camera, where pictures are taken. After the pictures are developed and brought back, the microfilm is reviewed, and delivered to the customer. Clients perform this work, under PI employee supervi- sion According to Lien, his contact with ( unit) employees is in the form of usual greetings However, Lien relates that he also knows quite a lot about machines; and any- where from twice a week to three times a month, he will help employees get a machine running, or speak to them on how to get a product to go together, or advise if a customer is going to be satisfied with this product. Lien attends the same Wednesday morning manager meetings as do Tyler and Wilcox Lien reports on jobs obtained, progress on jobs quoted, and problems out in the field trying to get jobs They also talk about produc- tion problems Lien confirms that at the time he and others were indicated they were going to be included in the unit, he along with Tyler and Wilcox were asked to leave when union activity came up Lien has also ac- knowledged that (apparently at that time) he became active in a "vote-no" committee, which asked him to be their spokesman, and that he wrote (related) letters and purchased stamps However, Lien has testified that he purchased the stamps out of his own pocket, and Lien also denied that he made reports (at manager or board meeting) as "vote-no" chairman (4) The contentions a. Professional employees Essentially the Union contends that Lien, Tyler, and Wilcox should be excluded as professional-management employees. The Union's argument that Lien, Tyler, and Wilcox are professional employees rests on the conten- tion that all three have degrees from universities in sub- jects required by the Employer to perform their respec- tive jobs; each sets his or her own schedule of work, which is varied and not of a routine nature; the work of each is of an intellectual nature and requires exercise of independent judgment. The Union advances the specific argument that Sales and Marketing Coordinator Lien's work is of an intellec- tual nature as shown by his relationship with corpora- tions to obtain jobs, by his part in bidding jobs, by his communicating production problems to customers, and by his resolving customer complaints The Union argues that Lien is required to exercise independent judgment in deciding what customers to approach; in the knowledge of what jobs PI can perform, and in analyzing data and submission of bids for work and the Union relies as well on Lien's being salaried and paid considerably more than other unit employees The Union's argument on Devel- opment Coordinator Tyler is that her work is primarily intellectual in her varied fundraising activities. The Union argues Tyler exercises independent judgment in deciding who to approach, and in (her part) in determin- ing strategies for donations, in setting up memorials, in communications with attorneys about their clients pro- viding charitable gifts to PI, and in regard to her devel- opment reports made to PI and PIF boards Finally the Union argues that Public Relations Coordinator Wilcox's job is shown to be primarily intellectual in her prepara- tion of news releases, in her dealings with the press, and in her articles on clients. The Union argues that Wilcox exercises independent judgment in her work through various news releases and award recommendations The Union essentially urges that the fact Wilcox is a profes- sional is evidenced by the nature of her own award. (Wilcox has testified that such an award can be given to a parent of a handicapped individual ) The Employer relies on professional employee defini- tion found in Section 2(12) of the Act, which provides (a) any employee engaged in work (i) predominant- ly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of dis- cretion and judgment in its performance, (iii) of such a character that the output produced or the result accomplished cannot be standardized in rela- tion to a given period of time, (iv) requiring knowl- edge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospi- tal, as distinguished from a general academic educa- tion or from an apprenticeship or from training in PROGRESS INDUSTRIES 741 the performance of routine mental, manual, or phys- ical processes. The Employer essentially contends that Lien, Tyler, and Wilcox simply do not fit the definition of a professional employee as contained in Section 2(12) of the Act; and the Employer argues accordingly that they are not pro- fessional employees. The Employer has specifically con- tended that the fact that Lien has a college diploma in the field of business does not make him a professional. Lien, Tyler, or Wilcox is a professional employees. How- ever, further questions remain whether Lien also has as- signed and/or excercised managerial functions in the Employer's marketing of its sheltered workshop service and/or whether Lien has community of interests with unit employees and, as well, whether Tyler and Wilcox are managerial emoployees or have community of inter- est with other employees. Analysis First, I find myself in general agreement with the Em- ployer that Lien is not to be deemed a professional em- ployee merely because he has obtained a business degree from a university nor are Tyler and Wilcox merely by virtue of the degrees they possess. Cf. Community Health Services, 259 NLRB 362 (1981), and see the case of Bing- hamton Press Co., 226 NLRB 808 (1976), cited in fn. 1, at 363. Lien's work is essentially that of a salesman, sala- ried, without commission, but with an expense account. Lien's duties essentially involved selling the Employer's sheltered workshop manufacture and assembly service to subcontractors of labor-intensive products. Tyler and Wilcox both are members of what may for present purposes be presumed to be professional ' organi- zations (Tyler in NSFRE and Wilcox in PRSA). In my view Tyler and Wilcox on the above facts and record as a whole are shown to meet the attributes of a profession- al employee as contained in Section 2(12)(a)(i) through (iii). Nonetheless , I further conclude and find that Tyler and Wilcox are not on this record established as profes- sional employees, essentially because it does not appear that either meets the criteria in (a)(iv ) of Section 2(2) of the Act, namely, "requiring knowledge of an advanced type in a field or science of learning customarily ac- quired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital , as distinguished from a general academic education . . ." It may be further presumed, again for present purposes, that the operative word "customarily" would appear not to necessarily preclude all other ap- proaches to achieve a professional status. In that respect it does appear that both Tyler, and Wilcox have engaged in much arguable on-the-job professional training, Tyler in executive fundraising effectively by 5 years' prior (unpaid) service in PI/PIF development committee work, prior to employment in the job of PI development coordinator (for PIF), and Wilcox as public relations co- ordinator for PI rehabilitation facility through continued guidance of a broadly experienced -rehabilitative profes- sional (e.g., Mather), as well as others engaged in the field of public relations serving on PI/PIF publicity, or public relations committee(s), as well as that likely at- tained from her notable social volunteer work -prior thereto. The fact is, however, that neither has qualified as a certified member thereof, which, in my view, would appear a necessary step before there be further appropri- ate addressment of whether such an alternate approach to customary attainment in these respective fields of en- deavor. It is accordingly concluded and found, for the above reasons, that the record does not establish that b. Managerial employees In support of contentions that Lien, Tyler, and Wilcox are managerial employees, the Union relies heavily on their regular attendance at management meetings. The Union points out that all other employees who attend the Wednesday morning administrative managers' meetings have been excluded from the bargaining unit. The Union relies on the fact that all three report directly to the president, as does Sherod. The Union argues that the Employer's testimony concerning the attendance of all three at these management meetings was guarded at best; but (essentially) contends that the record reflects that the board of trustees and PI management have set out to in- clude managerial employees in the unit. With regard to testimony of all three that, after the Decision and Direc- tion of Election, they were instructed to leave the ad- ministrative managers meetings and board meetings when the ` Union was discussed, the Union relies on the fact that the minutes of meetings do not reflect that Tyler and Wilcox left the meeting when the Union was dis- cussed. However, I have found their mutual testimonies that they do credible, despite the Union showing that the minutes of the administrative managers meeting of 11 June show Tyler in attendance at the beginning of the meeting, and giving a report following a (general) report on the Union. The Union would have noted that other supervisors (group home managers) are not allowed to attend these Wednesday morning administrative manag- ers meetings, which were identified by Sherod as being high-level management meetings. The Union has also argued that Lien, Tyler, and Wilcox each have offices in PI's main facility, and do not work directly with the cli- ents, as do, all other employees included in the unit. The Union argues that all three do not have a community of interest-with unit employees. The Employer essentially contends that Lien, Tyler, and Wilcox have obtained education levels similar in amount to that which others included in the unit have, and that the Union has not shown they conform to the Board's (and court-approved) definitions of managerial employees who "formulate and effectuate management policies by expressing and making operative the decisions of their employer, and those who have discretion in the performance of their jobs independent of their employ- er's established policy" as approved by the Supreme Court in NLRB v. Bell Aerospace Co., 416 U.S. 467 (1974). The Employer would also rely on the Board's holding in General Dynamic Corp., 213 NLRB 851 (1974). In General Dynamics however the Board ad- dressed professional employee function versus managerial 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employee, and observed that term is reserved for "execu- tive type positions, those who are clearly aligned with management as true representatives of management." Id at 857-859 However, it is observed that the Board there noted, "Likewise, technical expertise in administrative functions which may involve the exercise of judgment and discretion does not confer executive-type status upon the performer " Id. at 859 Contrary to seeming union contention, employees are not to be deemed managerial employees merely because their actions may affect their employer's costs, or be- cause they deal directly with customers or suppliers, cf. Ladish Co., 126 NLRB 555, 559 (1966), nor because they handle customer complaints, or promote new accounts, White Cross Stores, 186 NLRB 492, 513 (1970); nor if they act only indirectly in relationship to the basic as- pects of management, namely, where and when capital is to be invested; the determination of what is to be manu- factured (or, as here, what assembly job is suitable or ac- ceptable); the exercise of right to select customers and suppliers; or are engaged in the establishment of pricing and credit policies. Cf Iowa Industrial Hydraulics, 169 NLRB 205 fn. 1, 211-212 (1968). See and compare Swift & Co., 115 NLRB 752, 753 (1956), in which individuals were found to have exercised managerial prerogative in spending a substantial part of their time making pur- chases of product for their employer's account, and thus were deemed management representatives, and with in- terests aligned with management . See and compare also Sutter Community Hospitals of Sacramento, 227 NLRB 181 (1976), in which the Board excluded a clinical spe- cialist who used interdisciplinary professional skills in de- velopment of new and improved methods of nursing care and policies and procedures applicable thereto. There the Board notably observed, "The touchstone in a given case is whether or not a professional employee either exer- cises the type of discretion indicative of managerial status or, having some responsibility for authorship, par- ticipates directly in the employer's policymaking proc- ess." But it is otherwise where it does not appear clearly that an individual formulates or effectuates management policy; or exercises discretion independent of an employ- er's established policy; or participates directly in the Em- ployer's policymaking process Id. at 193-194 The record reveals essentially that Lien, Tyler, and Wilcox are direct staff administrative aides to President Mather. Contrary to the Employer's contention, in my view, Lien, Tyler, and Wilcox are also shown to have assigned responsibilities, and to have participated directly and effectively, in the Employer's policymaking process- es. I further conclude and find that weight of evidence establishes that their interests are shown as more aligned with management than with other unit employees. These conclusions and ultimate findings are based on the fol- lowing factors. The finding concerning Lien is based on Lien's job de- scription and his work performance factors, which in- clude, inter alia, an assigned responsibility to assist Mather in development and implementation of an overall marketing and sales plan for PI subcontracting, prime manufacturing, and micrographics; and which include an (initially) assigned responsibility to assist in the develop- ment and pricing of potential work when requested by the production manager, which exercise of the latter function, for quite some period of time now, has become a regular assignment for Lien. It rests on Lien's substan- tial involvement in related negotiations, contract present- ment, and acceptances for PI, albeit that exercise has progressive limitation as size of contract and related cap- ital outlay increases. Although Lien, since his return to the sales and marketing coordinator position, has not ex- ercised authority to accept contracts on his own involv- ing more than $300 capital outlay, or to otherwise (i e, on more major capital commitment contracts) vary and/or negotiate quotations to contract completion on his own, nonetheless, and contrary to the Employer urging, there can be no real question on this record that Lien does further participate in a substantial manner in the Employer's (greater) subcontract bid process The finding as to Lien rests as well on Lien's regular attendance at management meetings, where he presents business data directly related to management planning, his employment history of a conceded lateral move to and from clear and conceded managerial position; and his reporting otherwise directly to Mather At the Wednesday morning management meetings, Lien thus regularly reports on the scope and results of sales activi- ties to higher management in attendance, to wit: on new business obtained, prospective or upcoming business; and even difficulties in obtaining and retaining business. Each and all appear reasonably related in that context to the Employer's overall and weekly managerial planning pur- poses While a limited ($30) general pledge of credit would tend to indicate Lien is not a true managerial em- ployee, it is not deemed a controlling factor Otherwise considered, I cannot say that Lien's acknowledged com- mitments on subscontracts requiring up to $300 of capital outlay is an insubstantial managerial power, and particu- larly so when it is further observed his required joinder in price approval is an additional substantial factor for Bartello-Lien-Crook accord on price quotes for larger subcontracts that are not to involve Mather or Sherod approval It rests on the revealed assessment of real status in self-described admission of lateral move into and out of an uncontested managerial position. Finally, consideration must be given to the amount of Lien's salary, both as being reflective of the above mana- gerial responsibilities on the one hand, and notable inde- pendently on issue of noncommunity of interest with other unit employees Thus Lien's salary is shown as very substantially in excess of that paid to all other em- ployees included in the unit With regard to a consider- ation of salary amount, for purposes of entitlement to collective bargaining with an employer, in a given case, the Act will treat with impartiality whether unit employ- ees (generally) make $4000 or $40,000, cf. Iowa Industrial Hydraulics, supra, 169 NLRB at 212 However, the Board may properly exclude certain employees from an appropriate unit of other employees because a substantial variance exists in their pay scale (e g., exclusion of reli- gious from lay faculty unit, as the religious were paid substantially less), cf. Nazareth Regional High School v. NLRB, 549 F.2d 873, 879 fn 3 (2d Cir. 1977). 1 result- PROGRESS INDUSTRIES 743 ingly conclude and find that if Lien as PI sales and mar- keting coordinator is not to be deemed the sales and mar- keting manager as such, Lien is at least clearly shown to be a presidential staff administrative aide of essentially managerial type, i.e., of an executive type, and one so aligned with management as to warrant Lien's exclusion from the unit. Any post-D/D/E limited change in his at- tendance at manager meetings is not itself dispositive, when force of the above other' factors so predominate. It will be recommended that the challenge to the ballot of William Lien be sustained. The recommendation as to Joan Tyler and Betty Wilcox must be the same, though for somewhat differing reasons and in differing degree. In Tyler's case, Tyler has declared responsibility for coordinating fundraising efforts for PI and PIF; and in that regard, Tyler is directly involved in the administra- tive development of long- and short-range funding plans. Though Tyler does so with and/or under general direc- tion from Mather and PIF development committee, the record makes abundantly clear, that Tyler has substantial input to both plan establishment and goals. Tyler also has the declared responsibility for coordination and im- plementation of PIF development plant when approved. In my view, there is no question that Tyler has effective- ly made many decisions regarding management strategy on fundraising in which Mather has but generally con- curred; nor is it open to serious question on this record that Tyler in that regard has frequently exercised her own independent judgment. I am wholly persuaded that Tyler (at least) participates directly and effectively in the Employer's policymaking process on fundraising, and that Tyler is a managerial agent in that area. To be sure, in Tyler's case (and Wilcox's) case, and unlike Lien, there appears no further supporting substan- tial variance in salary, or other (benefit) disparity from (at least) certain other employees included in the unit. In that sense Tyler may be viewed as sharing community of interest with unit employees. But there are other consid- erations. Tyler does not fully charge PI (or PIF) for her expenses, nor at all for any work done at home. Even more significantly, and unlike other unit employees, Tyler's very position is directly, separately, and uniquely funded by PIF. In that respect, in my view, there is even a weightier reason for Tyler's exclusion from the unit, that being one of the real potential for conflict of inter- est. The Board has affirmed that in circumstances where a potential conflict of interest is discerned to exist between an employee and other employees in a unit, the Board will exclude that employee from the unit. Cf. Puerto Rico Sheraton Hotel, 248 NLRB 867, 877-878 (1980). (In the Sheraton Hotel case, supra, a nonsupervisory employee who reported any improper conduct of a substantial number (300) of employees to superiors who had author- ity to discipline was deemed to be in a position of poten- tial conflict with unit employees, and thus to be ex- cluded.) Here, a unit inclusion of Tyler, whose develop- ment coordinator position is wholly subsidized by PIF, and whose related development work raises funds for PIF through which PIF in turn helps to fund the cost of PI operations, would appear to place Tyler in a position of potential conflict of interest with a unit of employees, if represented by a collective-bargaining agent. This is so with regard to desired improvements in wages, hours, and working conditions that might affect costs. That cir- cumstance is wholly apart from the consideration of whether Tyler, as an employee, might or might not desire union representation in such matters otherwise. Although Wilcox's work assignment is in public relations rather than development as such, the two work functions as performed by Tyler and Wilcox are shown on this record very closely related and complimentary. None- theless the status of Wilcox appears to present a closer call. To be sure Wilcox is also a direct staff administrative aide to President Mather. She also, I am convinced, has exercised a great deal of independent and selective judg- ment concerning her various public relation efforts (in preparation of press releases, preparation and editing of newsletter, and tour arrangements) to carry out her de- clared responsibility to promote an understanding of PI to the general community or public. However, Wilcox is clearly not a supervisor and exercise of independent judgment otherwise in an assigned work performance is not by itself indicative of a true managerial status. Wilcox has exercised no pledge or credit authority to speak of; and she apparently charges for all work done at home, and generally for her expenses, though she has not sought reimbursement for all expenses related to her PRSA attendances. Unlike Tyler, Wilcox has some con- tact with clients. Nonetheless, supporting managerial employee status in the case of Wilcox are the established facts of Wilcox's direct supervision by, and participation with Mather and PI/PIF public relations committee in establishing short- and long-range public relations plans or goals. Although Wilcox may not independently set the same, nor vary the same on her own after approval, she has been given the responsibility to implement, thus effectuate, policy; and further, to review established programs and the authority to recommend changes. I rely additionally on the cir- cumstance of her regular attendance at the Wednesday management meetings. Though Wilcox views her attend- ance as arranged in that respect in order to accommo- date her ready awareness of public relations matters, and I have no doubt it does, Wilcox is not only privy to high-level management discussions, but she also gives regular structured public relations reports, as well as pro- viding to high-level management her own reports on technical developments that she has become aware from attendance at educational seminars, meetings, on which PI management relies. Then too Wilcox is required to make reports directly to governing PI/PIF boards. I rely also on her written authority to approve other employee releases to the media, a subject she has addressed at all staff employee meetings; and I rely as well on her, I find, essential management of PI's speakers bureau program for Mather. In my view the above evidence predomi- nates in showing that Wilcox is also a managerial agent, and/or that Wilcox's duties are such as to align her inter- ests more with management than other unit employees. Accordingly, having concluded that William Lien, Joan Tyler, and Betty Wilcox are each and all manageri- 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD al employees, whose interests are more aligned with management and/or who for different but substantial rea- son- are deemed not to share the same community of in- terests with other unit employees, I shall recommend that the challenges to their ballots be sustained. CONCLUSIONS OF LAW A In Case 18-CA-9700 1. Progress Industries is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America is a labor organization within the meaning of Section 2(5) of the Act. 3 By Group Home Manager Rory Hill's interrogation of employee Regina Frahm on 2 May 1986 as to the identity of employees in attendance at a union meeting held the prior evening, and interrogation as to other em- ployees' interests, sentiments, and activities on behalf of the Union, Respondent Employer has interfered with, re- strained, or coerced employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. 4. By Group Home Manager Rory Hill's conduct on 16 May in telling employees that if employees chose to become represented by a union , that under a resulting contract Hill probably would not be able to allow em- ployees the personal work flexibility that they currently enjoyed, Respondent has effectively threatened and co- erced employees in violation of Section 8(a)(1) of the Act. 5. Respondent has not engaged in any other unfair labor practice as alleged in the complaint. B In Case 18-RC-13951 1. By virtue of Respondent's engagement in the above- determined unlawful conduct, Petitioner Union's Objec- tion 1 is shown to have merit; and it will be recommend- ed that it be sustained 2. Petitioner Union's Objections 2 through 5 and 9 are otherwise without merit, and it will be recommended that they be overruled 3 Winifred Barwegen, Rory Larsen, Evelyn Sherod, and Kristi Beeler are eligible voters , and it is recom- mended that the challenges to their respective ballots be overruled. 4 William Lien, Joan Tyler, and Betty Wilcox are in- eligible voters, and it is recommended that the challenges to their ballots be sustained. 5. The above ballots of Barwegen, Larsen, Sherod, and Beeler are sufficient in number to affect the results of the election and, accordingly, it is recommended that they be opened and counted. 6. In the event the revised tally of ballots reveals that the Union has achieved a majority designation, it is rec- ommended that the Union be certified by the Board as the exclusive collective-bargaining representative in the following further amended appropriate unit- All full-time and regular part-time non-professional employees employed by the Employer at its Newton, Iowa facilities, including lead trainers, follow along lead trainer, trainers, production work- ers, aides, specialists, drivers, maintenance/ware- house employees, micrographics specialist, redemp- tion center specialist/manager and case managers (client advocates); excluding clients, nurse, office clerical employees, on-call/casual employees mana- gerial employees, guards and supervisors as defined in the Act 7. In the event the revised tally of ballots reveals that the Union has failed to achieve a majority designation, on the basis of Petitioner Union 's meritorious Objection 1, it is recommended that the election conducted on 17 July 1986 be set aside , and a second election be directed. REMEDY It having been found that Respondent Employer has engaged in certain unfair labor practices, it is recom- mended that it cease and desist therefrom , and that it take certain affirmative action that is necessary to effec- tuate the policies of the Act. A grant of the General Counsel 's request for a visitatorial clause would appear unwarranted in this case. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Progress Industries, Newton, Iowa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees concerning the identity of employees in attendance at a union meeting, and as to employees' interests , sentiments, and activities on behalf of the Union. (b) Threatening and coercing employees by telling em- ployees that if they chose to become represented by the Union, under a resulting contract their supervisor prob- ably will not be able to allow employees the personal work flexibility that they currently enjoy. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its places of business in Newton, Iowa, copies of the attached notice marked "Appendix."9 8 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 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " PROGRESS INDUSTRIES Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted, Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges any unlawful conduct other than as above found. IT IS FURTHER RECOMMENDED that the challenges to the ballots of William Lien, Joan Tyler, and Betty Wilcox be sustained; that the challenges to the ballots of Winifred Barwegen, Rory Larsen, evelyn Sherod, and Kristi Beeler be overruled; that they be opened and counted; and that if the Union attains a majority, it be certified. IT IS FURTHER RECOMMENDED that in the event a re- vised tally of ballots reveals that the Union has failed to attain a majority designation by those eligibile to vote in the election, the election held on 17 July 1986 in Case 18-RC-13951 be set aside, and the case be remanded to the Regional Director for Region 18 of the Board to conduct a new election at such time as he deems that cir- cumstances permit the employees' free choice of a bar- gaining representative. APPENDIX ,NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 745 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT unlawfully question any employee con- cerning the identify of employees in attendance at union meetings, or about other employees' interests, sentiments, or activities on behalf of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. WE WILL NOT threaten and coerce employees by tell- ing employees that if they chose to become represented by the Union, that under a resulting contract their super- visor probably will not be able to allow employees the personal work flexibility that they currently enjoy. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of his or her right to join or assist the Union, to bargain collectively through representatives of the employees' own choosing, or to engage in other concerted activity, or to refrain from such activity. PROGRESS INDUSTRIES