Waterbed World

WATERBED WORLD 425 Omnix International Corporation d/b/a Waterbed World and Union Independiente de Supermerca- dos y Tiendas por Departamentos. Cases 24- CA-5160 and 24-RC-6985 30 September 1987 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 23 June 1986 Administrative Law Judge Elbert D. Gadsden issued the attached decision in this proceeding. The Respondent filed exceptions and a supporting brief, a motion for a new hearing, and a request for oral argument . The General Counsel filed cross-exceptions and an answering brief to the Respondent's exceptions. The Charging Party filed a memorandum in response to the Re- spondent's exceptions and the Respondent filed a motion in opposition to the Charging Party's memorandum and an answering brief to the Gener- al Counsel's cross-exceptions.' 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 record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and 1 We deny the Respondent's motion for a new hearing. The Respond- ent contends that the judge fell asleep during part of the testimony of Respondent's vice president, Alan Bennett. The General Counsel, howev- er, disputes this contention. In any event, the Respondent raised no ob- jection to the judge's alleged conduct during the hearing itself, as would have been proper under the Board's Rules and Regulations. See, e.g., Sees. 101.10(b) and 102.41. The Respondent's request for oral argument is also denied as the record, including the briefs submitted by the parties, adequately presents the issues in the case and the positions of the parties Finally, the Respondent has requested that we reject the Charging Party's memorandum because, inter aba , it fails to set forth specifically the points of fact and law relied on and fails to refer specifically to the pages of the record supporting the judge's decision. The Respondent's re- quest is denied. Although the Charging Party's memorandum does not fully comply with the requirements of Sec. 102 46(dX2) of the Board's Rules and Regulations, we have decided not to reject it as it presents with sufficient clarity the points relied on in support of the positions of- fered. Cf. Fiber industries, 267 NLRB 840 fn. 2 (1983). The official tran- script of the hearing contains an addendum with a portion of Alan Ben- nett's testimony . This addendum is not paginated in conformity with the rest of the transcript. The Respondent has requested that a paginated ad- dendum be issued before this case is reviewed . This request is denied. The testimony in the addendum can be placed within Bennett's paginated testimony without difficulty. 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent contends that the use of a translator in the taking of testimony from Spanish-speaking witnesses renders the judge in- capable of making credibility resolutions. The conduct of Board proceed- ings in English, with the concomitant use of a translator, is not a ground conclusions only to the extent consistent with this Decision and Order. In this proceeding, the judge found that Gabriel Torres was a supervisor under Section 2(11) of the Act as well as an agent of the Respondent under Section 2(13), and that the Respondent, through Torres, violated Section 8(a)(1) of the Act by inter- rogating employee Marilu Marquez and threatening Marquez at the home of Gloria Garcia. The judge also found that the Respondent's secretary-treasur- er, Jaime Rico, violated Section 8(a)(1) by creating the impression among employees that union activi- ties were under surveillance and by encouraging employees to repudiate the Union with a subtle threat of discharge. In addition, the judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to permit Marilu Mar- quez to rescind her resignation and by discharging Gloria Garcia. Regarding the consolidated repre- sentation proceeding, the judge found without merit the Respondent's objections to the election and ordered that the challenges to the ballots of Marilu Marquez and Gloria Garcia be overruled and that the challenge to the ballot of Delia Cabral be sustained. for overturning credibility resolutions See generally Union National de Trabajadores, 219 NLRB 862 fn 2 (1975) The judge's decision contains inadvertent errors of fact that are insuffi- cient to affect our decision. We note the following corrections . In sec. III,B, Alan Bennett moved Gabnel Torres from the sales force to the warehouse in March, not April In the "Conclusion " to sec. III,B, the judge refers to Raisa Musa's and Manlu Marquez' testimony on Gabriel Torres' supervisory status. Only Marquez testified about his status In the "Conclusion" to this section, Delia Cabral, not Raisa Muss, as the judge indicated, was known as "Chia " In sec. III,D, the judge states that Raisa Musa left the Respondent's employ on 3 May 1985. Musa went on sick leave on 6 May 1985, but was still an employee of the Respondent at the time of the hearing In fn 4 , the judge states that "the evidence estab- lished that Musa and Marquez did not get along well." The record is silent on their relationship In fn 4 and in sec III,D, the judge confuses Jaime Rico with Gabriel Torres. It was Rico, not Torres, who talked with Musa at her store on 3 May, not 3 April. And Torres, not Rico, was alleged to have gone to Marquez' house on 21 April In this section, the judge also states that the Respondent met with Marquez on 3 May, and advised her of its decision to close the Carolina II store. The Respondent first met with Marquez on 2 May to tell her this. In fn 5 , the judge finds that Marquez completed 2 years of study at the University of Puerto Rico, but the record does not support this finding . In sec 111,11, the judge states that the parties stipulated that at the election "the employees could not see anyone (union representatives or others ) outside, as they descended the stairs and proceeded to and deposited their ballot in the ballot box." The record reflects no such stipulation The judge also has incorrectly cited the following cases , given here with correct titles and citations- B-P Custom Building Products, 251 NLRB 1337 ( 1980); River Manor, 224 NLRB 227 (1976), enfd 562 F.2d 1238 (2d Cir 1977), Jules V. Lane, D.D.S., P.C., 262 NLRB 118 (1982), Joint Industry Board of the Electrical Industry, 238 NLRB 1398 (1978); Okun Bros Shoe Store, 275 NLRB 1019 (1985); Sierra Hospital Founda- tion, 274 NLRB 427 (1985), Second Federal Savings Assn , 267 NLRB 911 (1983); Omsco, Inc., 273 NLRB 872 (1984); A & E Stores, 272 NLRB 737 (1984), Algreco Sportswear Co., 271 NLRB 499 (1984); General Baptist Nursing Home, 259 NLRB 982 (1982). Finally, we note that in sec III,D the judge incorrectly quotes the lan- guage of Kogy's Inc., 272 NLRB 202 (1984), concerning the test for con- structive discharges. 286 NLRB No. 37 426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD For the reasons discussed below, we reverse the judge's findings that Gabriel Torres was a supervi- sor and agent of the Respondent. Accordingly, we reverse the 8(a)(1) findings attributable to him. We agree with the judge that Jaime Rico's conversa- tion with employee Raisa Musa violated Section 8(a)(1), but only by creating the impression of sur- veillance and by threatening unspecified reprisals. We agree, but only for the reasons set out below, that the Respondent's refusal to permit Marilu Marquez to rescind her resignation and its dis- charge of Gloria Garcia violated Section 8(a)(3) and (1). Finally, we agree that the Respondent's objec- tion to the election should be overruled; that the challenges to the ballots of Marquez and Garcia should be overruled; and, in the absence of excep- tions, that the challenge to Cabral's ballot should be sustained. This resolution makes Marquez and Garcia's ballots nondeterminative as the vote totals stand at six for the Union and three against, with two ballots to be opened. We will not order these ballots opened, however, but will instead issue a Certification of Representative to the Union. A. Gabriel Torres' Status The Respondent operates a chain of retail stores in which it sells waterbeds and accessories. The Respondent hired Torres as a sales trainee at one of its stores under a job training program of the Com- monwealth of Puerto Rico. In March 19853 Torres was transferred to the Respondent's warehouse. There, he coordinated the delivery of waterbeds, worked the computer, helped fill orders, handled telephone calls, and greeted visitors. He occasional- ly substituted for sales personnel and made deliv- eries. 'On an unspecified number of occasions, he also gave salespersons telephone instructions about prices and stopped by the Respondent's stores to check receipts, bank deposits, and bank state- ments.4 Torres on occasion also initialed changes on his and other employees' timecards. The Re- spondent's vice president, Alan Bennett, testified that Torres initialed the timecards on the instruc- tions of the Respondent's treasurer , Jaime Rico, when delays in opening the warehouse gates caused employees to punch in late. At the time of his transfer to the warehouse, Torres' pay was raised from $3.35 to $3.50 per hour. Bennett testi- fied that the difference was to compensate for the loss of sales commissions that the transfer entailed. s All dates are 1985 unless otherwise noted. The judge also listed giving orders to drivers as one of Torres' duties. The record makes clear that this job involved transmitting cus- tomers' orders to the drivers and did not mean giving the drivers mstruc- tions. Unlike the Respondent's admitted supervisors, Torres punched a timeclock and did not attend weekly supervisory meetings. Bennett referred to Torres as a "Warehouse Supervisor" in a letter of recommendation written to outside employers on 3 May and stated in an affidavit given to a Board agent on 30 May that Torres supervised another employee in the warehouse. Finally, Marilu Mar- quez testified that Rico told her near the end of April that Torres was her new supervisor. The above facts are insufficient to warrant the conclusion that Torres was a supervisor under Sec- tion 2(11) of the Act. There is no evidence that Torres had, or exercised, any independent author- ity to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other employees, adjust their grievances, or effectively to recommend any of these actions. Torres was in- structed by a superior to initial the timecards and his giving orders to warehouse personnel involved nothing more than telling them what customers had ordered. Although Bennett and Rico referred to Torres as a supervisor, it is Board law that an employee's title does not determine his status. "The proper consideration is whether the functions, duties, and authority of an individual, regardless of title, meet any of the criteria for supervisory status defined in Section 2(11) of the Act." Bowne of Houston, 280 NLRB 1222 (1986), citing Marukyo U.S.A., 268 NLRB 1102 (1984); Golden West Broad- casters-KTLA, 215 NLRB 760 (1974). Therefore, although Bennett and Rico may have referred to Torres as a supervisor, and Bennett indicated in an affidavit that Torres supervised an employee's work, only actual evidence that Torres possessed or exercised one or more of the indicia of supervi- sory authority would determine his status. There is insufficient evidence to support such a finding. Further, the increase of 15 cents per hour in Torres' pay when he was transferred to the ware- house is not probative of supervisory status absent evidence of the exercise of independent judgment. Judy Hornby Designs, 279 NLRB 1271 fn. 1 (1986). We further find that Torres was not an agent of the Respondent under Section 2(13) for the pur- poses of assessing his alleged unlawful statements to Marquez. As Section 2(13) states, "[i]n determin- ing whether any person is acting as an `agent' of another person so as to make that other person re- sponsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." The Board has indicated that under this doctrine, the test for determining whether an employee is an agent of the employer is whether, under all the cir- cumstances, "the employees would reasonably be- WATERBED WORLD lieve that the employee in question was reflecting company policy and speaking and acting for man- agement." Einhorn Enterprises,' 279 NLRB 576 (1986), citing Community Cash Stores, 238 NLRB 265 (1978). In this case, no evidence was adduced that at the time of the alleged unlawful statements (an interrogation and a threat of discharge) on 21 April that the Respondent had held Torres out as being privy to management decisions or as speak- ing with management's voice about these alleged unlawful matters or that employees perceived him as having such a role. Therefore, we find that Torres was not an agent of the Respondent, and that his alleged remarks are not imputable to the Respondent. Zack Co., 278 NLRB 958 (1986); Abbey Island Park Manor, 267 NLRB 163, 165-166 (1983). B. Jaime Rico's Conversation with Raisa Musa on 3 May" In testimony credited by the judge, Raisa Musa, Marquez' sister-in-law, and an employee of the Re- spondent assigned as a salesperson to the Guaynabo store, testified that Treasurer Rico visited the Guaynabo store on 3 May and told her that he had already found out that the employees wanted "to bring a union into the Company"; and that he re- garded Musa as a very good employee, and that she should not get involved in the union effort. Musa informed Rico that she would be out sick commencing 6 May but that she expected to return to work. Musa testified that Rico thanked her for her work with the Company and told her that she would always be welcome to return. Rico then told her again that she was a good employee and should not get involved with the Union, "that he knew that they wanted to bring the union into the Company and that Marilu [Marquez] was in charge of everything." We fmd that Rico's remarks created the impres- sion of employer surveillance of employees' union activities, and therefore violated Section 8(a)(1) of the Act. Jenkins Index Co., 273 NLRB 736, 742 (1984). Additionally, because they imply that in- volvement with the Union might harm the hearer's interests in some way, the remarks also constituted a threat of unspecified reprisal in violation of Sec- tion 8(a)(1). The Respondent's argument that this conversation was a "friendly" one is unavailing. Rico's comments clearly implied that union activity brings adverse consequences. See Jenkins Index Co., supra. We further find that these remarks dem- onstrated that the Respondent knew of Marquez' 5 We note that it was Rico, not Torres, who spoke with Musa on 3 May, not 3 April, as the judge states. 427 union activities by 3 May, when the events leading up to the termination of Marquez' employment were set in motion. Finally, we find that the warn- ing and threat implicit in these statements indicate that Respondent also harbored animus against Mar- quez for her union activities. C. The Termination of Marilu Marquez' and Gloria Garcia's Employment Until the beginning of May, the Respondent maintained two stores at the Carolina Mall, Caroli- na I, manned by Marquez' husband, Jorge Musa, and Carolina II, to which Marquez was assigned on a full-time basis and Garcia, Marquez' mother, on a part-time and rotating basis. In mid-April, the Respondent's landlord ordered that the Carolina II store be vacated by 31 May. For business reasons, the Respondent decided to close the store in early May, and management discussed the closing with Marquez and members of her family at the store on 2, 3, and 4 May. At the first of these meetings, Bennett, Rico, and Stan Liu, the Respondent's president, informed Marquez and her husband that Carolina II was to close after 4 May and gave Marquez the choice of transferring to the Respondent's store in Dorado, collecting unemployment compensation, or resign- ing. They explained that she could transfer to the Dorado store because she had greater seniority than the salesperson there, and that Puerto Rican law entitled her to displace him. They also offered to help her collect unemployment compensation if she so desired. Marquez indicated that she wanted to keep her job, but at the same time expressed un- willingness to transfer to Dorado, telling Rico, Liu, and Bennett that she was having a problem preg- nancy and thus was reluctant to travel the extra distance to the Dorado store. Marquez' husband of- fered to take the transfer himself to spare Marquez the added travel. This offer was refused, the Re- spondent indicating that it was Marquez', not Musa's, store that was closing. Marquez was given until the following day to decide what she would do. On 3 May Marquez continued to oppose the transfer when Rico and Liu came to the store for her answer. She suggested that, rather than go to Dorado, she temporarily replace Raisa Musa at the Guaynabo store because Musa would be out sick beginning the following Monday, 6 May. This al- ternative was refused, and Marquez was told to think the transfer over and that company officials would return for her answer. Bennett and Rico re- turned to the store on 4 May with a written work schedule placing Marquez at Dorado. The record is in conflict about Marquez' response. The Re- spondent contends that she continued to protest the 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD transfer, but she denies that she refused outright to go to Dorado. Bennett testified that he and Rico viewed Marquez' remarks as a resignation. That evening, Marquez delivered to the warehouse a letter protesting the transfer. Rico and Bennett viewed the letter as a written confirmation of the earlier oral resignation, and prepared letters in English and Spanish accepting the resignation. Al- though the judge credited Marquez' denial that she orally resigned on 4 May, he found warranted the Respondent's view that the 4 May letter included an implicit resignation. On Monday, 6 May, however, Marquez, accom- panied by Garcia, visited the warehouse seeking the keys to the Dorado store so that she could commence work there. Bennett told Marquez that the Respondent had accepted her resignation and told Garcia that in view of the closing of the Caro- lina II store, the Respondent had no more work for her and her services were terminated. Despite Mar- quez' protestations that she had not resigned and was willing to work at Dorado, she was not per- mitted to go to work there. After the Respondent refused to permit Marquez to commence work at Dorado and discharged Garcia, it was unable to open its Guaynabo store on at least 7 days in May, including 6 May, the very day on which the Respondent told Garcia that it had no work for her.6 Moreover, during the weeks of 13 and 20 May, the Respondent trans- ferred an employee from its store in Ponce to man the Guaynabo store, and on at least 2 other days, Gabriel Torres left his job at the Respondent's warehouse to fill in at Guaynabo. Clearly, the loss of the services of Marquez and Garcia at the same time that Raisa Musa went on sick leave left the Respondent shorthanded. Yet the record offers no evidence that the Respondent called on either Mar- quez or Garcia to return to work, even though Marquez telephoned Liu twice about 20 or 21 May to confer with him about what had happened. The judge found Marquez rescinded her resigna- tion when she came to the warehouse on 6 May ready to commence work at Dorado. However, the judge also found that the Respondent refused to permit Marquez to rescind her resignation and that this refusal and the simultaneous discharge of Garcia were unlawfully motivated and without le- gitimate business justification. We agree that the re- fusal to permit Marquez to work at Dorado after she withdrew her resignation and the discharge of 6 When the Respondent offered Marquez a transfer to Dorado, it planned to place the Dorado employee at Guaynabo to cover for Musa's absence When it later refused to allow Marquez to go to Dorado , it kept the Dorado employee at Dorado, thereby leaving a vacancy at Guayn- abo Garcia were motivated by Marquez' union activi- ties and that these actions violated Section 8(a)(3) of the Act because we find that the timing and cir- cumstances of these decisions raise a clear infer- ence of discrimination and that the Respondent has failed to rebut this inference.' Thus, on 3 May, just 3 days before these actions occurred, Rico told Raisa Musa that the Respond- ent knew that Marquez was responsible for bring- ing the Union into the Company and warned Musa she should not get involved. At this same inter- view, Musa told Rico that she would be out sick beginning on 6 May. As noted above, Rico's re- marks reveal clearly that the Respondent harbored knowledge of and animus toward Marquez' union activities; they also reveal that as of 3 May Re- spondent knew that it would need someone to re- place Musa for an unspecified number of days. Fur- ther, the departure of Marquez and Garcia from its work force left the Respondent woefully short- handed, as its difficulties in staffing its Guaynabo store reveal. Finally, in light of Rico's knowledge as of 3 May that Raisa Musa was to be out sick, the fact that Garcia worked a rotating schedule at several of the Respondent's stores other than the Carolina store, and the absence of any showing that she would not be needed to continue this work, Bennett's explanation to Garcia that her services would no longer be needed because the Carolina II store had closed does not withstand scrutiny. Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Respondent could rebut the inference of discrimination by showing that Marquez' and Garcia's employment would have been discontinued even absent the union ac- tivity. In this case, the Respondent has failed to in- troduce a single credible reason for inducing the departure of two apparently adequate employees, leaving itself so shorthanded that one of its places of business closed for at least 7 days that same month. Accordingly, we find that the Respondent's rationale for discharging Garcia and refusing to permit Marquez to rescind her resignation is pre- textual and that Marquez' union activity and Gar- cia's familial relationship to Marquez precipitated these adverse employment actions. We therefore conclude that the Respondent's actions with re- spect to Marquez and Garcia violated Section 8(a)(3) and (1) of the Act. 7 We do not, however, find the transfer to Dorado offered to Marquez, or the initial refusal to allow Marquez to go to the Guaynabo store, to be unlawful, contrary to certain of the judge's indications WATERBED WORLD 429 CONCLUSIONS OF LAW 1. Omnix International Corporation d/b/a Wa- terbed World is an employer within the meaning of Section 2(2) of the Act and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Union Independiente de Supermercados y Tiendas por Departamentos is a labor organization within the meaning of Section 2(5) of the Act. 3. By telling an employee that the Respondent knew who was responsible for bringing the Union into the Company, the Respondent created the im- pression of surveillance of its employees' union ac- tivities and violated Section 8(aXl) of the Act. 4. By telling an employee that she should not get involved with the Union, the Respondent threat- ened unspecified reprisals for union activities and violated Section 8(a)(1) of the Act. 5. By refusing to permit employee Marilu Mar- quez to rescind her resignation because of her union activities, the Respondent violated Section 8(a)(3) and (1) of the Act. 6. By discharging Gloria Garcia in retaliation for her daughter's union activities, the Respondent vio- lated Section 8(a)(3) and (1) of the Act. 7. Gloria Garcia and Marilu Marquez are em- ployees of the Respondent under Section 2(3) of the Act, and the challenges to their ballots are overruled. 8. The Respondent's objections to the election in Case 24-RC-6985 are overruled. ORDER The Respondent, Omnix International Corpora- tion d/b/a Waterbed World, Hato Rey, Puerto Rico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Creating the impression among employees that their union activities are under surveillance. (b) Threatening employees with unspecified re- prisals for their activities on behalf of a union. (c) Refusing to permit employees to rescind res- ignations in retaliation for activities on behalf of a union. (d) Discharging employees in retaliation for the union activities of their relatives. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Marilu Marquez immediate and full re- instatement to her job and Gloria Garcia immediate reinstatement to her rotating job or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided for in New Horizons for the Re- tarded." (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the separa- tions will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at Omnix International Corporation d/b/a Waterbed World and its stores located at Plaza Carolina Mall, City of Carolina , Marginal Vista Mar, Santurce, Guaynabo, Dorado, Baya- mon, Caguas, and Ponce, Puerto Rico, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Union Independiente de Su- permercados y Tiendas por Departmentos and that b In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C. § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 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 " 430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it is the exclusive collective-bargaining representa- tive of the employees in the following unit: All sales persons employed by the Employer at its facilities located at Plaza Carolina, Caro- lina; Plaza 18, Santurce; Bayamon Oeste Shop- ping Center, Bayamon; Jardines de Guaynabo Mall, Guaynabo; Dorado Shopping Center, Dorado; Plaza Del Carmen Mall, Caguas; Ponce Mall, Ponce, all in Puerto Rico, but ex- cluding all warehouse and office clerical em- ployees, guards and supervisors defined in the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten our employees with un- specified reprisals for engaging in activities on behalf of the Union. WE WILL NOT create the impression among em- ployees that their union activities are under surveil- lance by us. WE WILL NOT discharge employees, or refuse to permit them to rescind resignations, because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Marilu Marquez immediate and full reinstatement to her former position , and offer Gloria Garcia immediate reinstatement to her rotat- ing position or, if those jobs no longer exist , to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the unlawful separations of Marilu Marquez and Gloria Garcia, and notify them in writing that this has been done and that their separations will not be used against them in any way. OMNIX INTERNATIONAL CORPORA- TION D/B/A WATERBED WORLD Antonio F. Santos Esq., for the General Counsel. Luis F. Padilla, Esq., Hato Rey, Puerto Rico , for the Re- spondent. Anselmo Lugo, president of Union Independiente de Su- permercados y Tiendas por Departmentos , Hato Rey, Puerto Rico, for the Union. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN , Administrative Law Judge. On a charge of unfair labor practices filed on 20 May 1985, by Union Independiente de Supermercados y Tiendas por Departamentos (the Union), against Omnix Interna- tional Corporation d/b/a Waterbed World (Respondent), the Regional Director for Region 24, on behalf of the General Counsel, issued an order consolidating the unfair labor practice case with Case 24-RC-6985 for a hearing on the objections and challenged ballots. The complaint alleged that Respondent has violated Section 8(axl) of the Act by interrogating employees re- garding their membership in and activities on behalf of the Union; creating the impression that the employees' union activities were under surveillance by Respondent; threatening employees with discharge if they became or remained members of the Union; and requesting employ- ees to encourage other employees to repudiate the Union. The complaint further alleged that Respondent violated Section 8(a)(3) and (1) of the Act by transfer- ring Marilu Marquez from one of its store locations to another of its store locations , causing termination of her employment; and/or discharging Marilu Marquez and Gloria Garcia because of their membership in and activi- ties on behalf of the Union. On 31 July 1985, Respondent filed an answer denying that it engaged in any unfair practices set forth in the consolidated complaint and affirmatively alleged that Gabriel Torres is not a supervisor or agent; that Re- spondent denies having any knowledge of union or pro- tected activity of either Marquez or Garcia; and that Garcia was terminated for purely business considerations and Marquez voluntarily resigned from Respondent's employ. The hearing in the above matter was held before me in Hato Rey, Puerto Rico on 16, 17, and 18 December 1985. Briefs have been received from counsel for the General Counsel and counsel for the Respondent, respec- tively, and they have been carefully considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is, and has been at all times material, a corporation duly organized under, and existing by virtue of, the laws of the Commonwealth of Puerto Rico. The Respondent has at all times material maintained an office and place of business at Marginal Vistamar and Plaza Carolina Mall, City of Carolina, and other stores located in Santruce, Guaynabo, Dorado, Bayamon, Caguas, and Ponce, where it is and has been at all times WATERBED WORLD 431 material engaged in the operation of a chain of retail stores in the aforestated locations and the Common- wealth of Puerto Rico for the sale of waterbeds and other related accessories. During the past year, a representative period, Re- spondent in the course and conduct of its business oper- ations purchased and caused to be transported and deliv- ered to its places of business in Puerto Rico waterbeds and other goods and materials valued in excess of $50,000, of which goods and materials were transported and delivered to its place of business in interstate com- merce directly from points and places located outside Puerto Rico. During the same period of time, Respond- ent derived gross revenues valued in excess of $500,000. The consolidated complaint alleges, the answer admits, and I find that Respondent Omnix International Corpora- tion d/b/a Waterbed World, is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The consolidated complaint alleges, the answer admits, and I find that Union Independiente de Supermercados y Tiendas por Departmentos (the Union), is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The Respondent is engaged in the sale of waterbeds and related parts. Prior to May 1985, it operated two stores at Plaza Carolina Mall, one store on the first level and the other on the second level . It also operated a store at each of the following locations : Santruce, Guaynabo, Dorado, Bayamon, Oeste, Caguas, Ponce, and a warehouse near Carolina , Puerto Rico. One sales employee was assigned to each store to write up sales, make the daily bank deposits of any money they collect- ed, call the warehouse with orders for deliveries, coordi- nate installation of the beds, make up the beds in the stores, keep the stores neat and presentable , and coordi- nate with the warehouse and customers on layaways, de- livery, or pick up of the purchases. Each sales employee had at least 1 day off each week, and when they were off, either Vice President Bennett, President Stan Liu, or Secretary-Treasurer Jaime Rico would work his store, or Respondent would call in a part-time salesperson. This was especially done in the case of the Carolina stores because the salespersons there had 2 days off each week because they worked extended hours until 9 p.m. on Mondays and Thursdays. The Respondent acknowledged that at all times mate- rial, the persons named below occupied the positions set opposite their respective names and are supervisors of Respondent within the meaning of Section 2(11) of the Act, and agents of Respondent within the meaning of Section 2(13) of the Act: Stan Liu President Alan Bennett Vice: President Jaime Rico Secretary-Treasurers B. The Supervisory Status of Gabriel Torres Although Marilu Marquez testified without dispute that in late April 1985, Secretary-Treasurer Rico advised her that Gabriel Torres was her new supervisor, Re- spondent denies Torres was ever a supervisor on its behalf. Although Respondent disputes the supervisory status of Torres, Rico did not deny that he so informed Marquez, even though he appeared and testified in this proceeding. In this regard, Vice President Alan Bennett testified that Gabriel Torres was hired by Respondent under the Commonwealth ADT program that is de- signed to promote job training. Under the program, an employer agrees to hire an employee and the Common- wealth agrees to reimburse the employer 50 percent of the employee's salary. Other employees employed by the Respondent under the same program were: Nancy Revera Salesperson Wanda Pedrosa Jaime del Valla Jose Huertas Driver Francisco Ortez Bennett also testified that Torres first worked as a sales trainee and trained at the warehouse . He said he moved Torres from the Carolina store to assist in the warehouse in April (unspecified date), where he worked on the computer, helped dispatch orders, took light mat- tresses from stock, selected the correct beds for delivery and/or installation by the driver, handled the telephones, greeted the customers in the reception area-"kind of jack-of-all-trades." At the time of the assignment, Ben- nett said he increased Torres' salary from $3.35 to $3.59 per hour. Marilu Marquez undisputedly testified that Torres gave her instructions about prices and special sales or price adjustments. She said she considered Torres her su- pervisor since Secretary-Treasurer Rico had so advised her in April. However, Bennett said because of Torres' special training and knowledge of the different products, he did give orders to drivers, but he did not have author- ity to hire, reprimand, warn, or recommend hiring or firing, and he did not exercise any such authority. When Gloria Garcia was asked who told her Gabriel Torres was her supervisor, she said she had noted since April 1985, that Torres started carrying out different duties, coming to her store and checking all the receipts, the bank statements, the deposits, and he would tell her everything was okay. She said he gave her orders over the telephone regarding changes in prices of beds, and when beds would be placed on special. He gave her her work schedule over the telephone on Saturdays. Howev- er, counsel for the Respondent pointed out that in her af- fidavit Garcia listed her bosses as Bennett, Rico, and Liu. The record shows that Torres initialed his own time- card on five occasions, and he initialed the timecards of woodworker Angel Robles on one occasion, and Franciso Ortez' timecard on two occasions. ' The facts set forth above are not in conflict in the record. 432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Conclusion It is particularly noted that Bennett's testimony contra- dicts his denials. When he was asked why he referred to Torres as a warehouse supervisor on direct examination, Bennett said, "Well, it's really a title I gave him. I needed to designate him something different since he had a different job duty; he wasn't a sales manager at that time or a store manager." This acknowledgement by Bennett is consistent with Marilu Marquez ' testimony that Secretary-Treasurer Rico told her Torres was her new supervisor. On additional examination , Bennett testified he as- signed Torres to the warehouse the week of 1 March 1985 and that when he wrote a letter of recommendation for Torres on 4 May 1985 (G.C. Exh. 4), he thought the title of "supervisor" sounded more impressive, so he again stated Torres' title as "supervisor." The only two other employees working at the warehouse in March and April were Angel Robles and Jose Huertas. It is further noted that when Bennett was first exam- ined as a 6. 11(c) witness, he was shown his signed state- ment or affidavit (G.C. Exh. 3) dated 30 May 1985, which was submitted to the Board, in which he stated that Gabriel Torres was a warehouse supervisor-the su- pervisor of Jose Huertas and Angel Robles-Huertas' immediate supervisor Stan Lui and Gabriel Torres. Ben- nett did not dispute his sworn statement but acknowl- edged it was his statement. Bennett further stated that Torres voluntarily terminat- ed his employment with Respondent to accept another job. Torres did not appear and did not testify in this pro- ceeding. Consequently, the testimony of Marilu Marquez and Raisa Musa Quinnez, regarding Torres' supervisory status and his statements made to them , is therefore not only uncontroverted in the record, but essentially cor- roborated by the testimony of Vice President Bennett. Since I was also persuaded by the demeanor of Marilu Marquez, Gloria Garcia , and Raisa Musa as they testified in this regard, I therefore credit their versions and dis- credit Bennett's denial that Torres was a supervisor. Additionally, it is clear from the credited evidence that while Torres may not have possessed or exercised many of the usual indicia of supervisory status described in Section 2(11) of the Act, he nevertheless did possess occasional authority to correct employees' timecards, give orders to warehouse personnel, and telephonically give information from management to salespersons on prices and changes of prices, as well as visit the respec- tive stores and check the sales receipts, bank statements, and deposits for the Respondent. The Board held in B-P Custom Building Products, 251 NLRB 1337, 1338 (1980), that when an employer places an employee in a position where employees could rea- sonably believe the employee spoke on employer's behalf, any threats, promises of benefit, or other coercive activity by such employee is imputed to management. River Manor Health Facility, 224 NLRB 227, 235 (1976), enfd. 562 F.2d 38 (2d Cir. 1977). Where an employer refers to an employee as a super- visor, the Board has also found such an employee to be an agent of the employer . Jules V. Lane, 262 NLRB 118 (1982); Roskin Bros., Inc., 274 NLRB 413 (1985). Because Respondent in the instant case not only referred to Torres as a supervisor but also advised employee Mar- quez that Torres was a supervisor , I find that Gabriel Torres was not only a supervisor , but also an agent of Respondent within the meaning of Section 2(13) of the Act. Jules V. Lane, supra, Roskin Bros., supra. In Joint Industry Board of Electricity Industry, 238 NLRB 1398 (1978), the Board held an employer liable for violative statements of a nonsupervisor who "routine- ly acted as a conduit" between supervisors and rank-and- file employees, provided approved instruction and new techniques, and acted on employer's behalf in adjusting customer complaints. It is therefore unequivocally clear from the credited evidence that Vice President Bennett changed the job duties and jobsite of Torres in March ; that Vice Presi- dent Bennett gave Torres the title of supervisor because his duties were different ; that Secretary-Treasurer Rico undeniably informed Marilu Marquez in late April that Torres was the new supervisor; that in his letter of rec- ommendation for Torres, Bennett stated that Torres' title was supervisor; that Bennett stated in his sworn state- ment, submitted to the Board , that Torres was supervisor of the warehouse; that Torres was in fact in charge of the warehouse and gave orders to warehouse worker Jose Angel Huertas ; that, on occasion, Torres initialed his own timecard and the timecards of two other ware- house employees, even though the timecards were gener- ally initialed by Rico; and that Torres visited the Caroli- na stores just before closing time and checked the sales receipts, bank statements, and deposits for the Respond- ent. Management did not inform employees why it gave Torres the title of supervisor and they had no reason to assume he was not a supervisor. I therefore conclude and fmd on the foregoing evi- dence that Respondent not only acknowledged Torres' job title was warehouse supervisor and that he was in fact a supervisor, but all the other credited evidence sup- ports the conclusion that Torres was a supervisor within the meaning of the Act. I further find , pursuant to the above-cited legal authority, that Respondent placed Ga- briel Torres in a position where employees Marilu Mar- quez, Raisa Musa (Chia), and Gloria Garcia could rea- sonably believe that Tones spoke on Respondent's behalf; and that Gabriel Torres was the "warehouse su- pervisor" for the Respondent within the meaning of Sec- tion 2(11) of the Act, and its agent within the meaning of Section 2(13) of the Act. C. The Organizing Activities of the Employees and Respondent's Reactions A composite of the undisputed and credited evidence established that Marilu Marquez has been in Respond- ent's employ as a saleslady on the second level of the Carolina store since November 1983. Her husband, Jorge Musa, worked the first level of the Carolina store and Marilu's mother, Gloria Garcia, worked as a part-time saleslady on the second level of the Carolina store. Marquez testified that about 17 March 1985, she tele- phoned Anselmo Lugo, president of the Union, and in- formed him that Respondent 's employees were interested WATERBED WORLD 433 in having a union. As a result of her telephone call, the Union Representatives Anselmo Lugo, Juan Negron, and Benjaman Borge met with Marquez, Jorge Musa, her husband, and her mother, Gloria Garcia, at the home of Garcia about 20 March 1985 . After discussion of employ- ee problems and an explanation of the functions of the Union, Lugo gave Marquez 8 or 10 union authorization cards and instructed her to distribute them to fellow em- ployees to read, sign, and return. A majority of the employees , including Gloria Garcia, met at Marquez' house at 1 p .m. on 24 March 1985. Mar- quez distributed authrorization cards to then. A majority of the employees met at Marquez' home again on 19 April 1985. The employees who were not present at the previous meeting signed a union card. The petition for representation was already prepared and the employees agreed to request an election. A majority of employees met at Marquez" house on 21 April 1985 from 1 to 3 p.m. As the employees were leav- ing, Supervisor Gabriel Torres, his wife, and son, came to her house. Marquez further testified without dispute that Torres asked her who had organized the Union and she told him that she did. She said he asked her what was Raisa Musa (Chia) doing there and she told him she believed she was still an employee of Respondent. Mar- quez said she also told Torres the employees had met with the Union and had decided to have the Union rep- resent them; that most of the employees had signed a union authorization card that was sent to the Board; that the Board had already certified the Union; and that she wanted him to participate and join the group. She also told Torres that employee Francisco had been unjustly dismissed from the Dorado store and that was why she was bringing in the Union, and Torres told her Bennett had received a letter that had something to do with the Union; that she (Marilu Marquez), her mother, Gloria Garcia, and her husband, Jorge Musa, were going to be dismissed; and that Bennett told him he was going to clean the Company. 2 Conclusion I conclude and find on the credited testimony that Re- spondent (Supervisor Tones) coercively interrogated employee Marquez by asking her who organized the Union, and what was employee Raisa Musa doing leav- ing her (Marquez') house. Okun Bros. Shoe Store, 275 NLRB 1019 (1985); Sierra Hospital Foundation, 274 NLRB 427 (1985). 1 further find that. Respondent (Torres) threatened, restrained, and coerced employees by telling Marquez Respondent was going to discharge Marquez, Gloria Garcia, and Jorge Musa--and clean the Company Omsco, Inc., 273 NLRB 872 (1984); A & E Stores, 272 NLRB 737 (1984). Such coercive threats and interrogation are in violation of Section 8(a)(1) of the Act. 8 I credit the uncontradicted testimony of Marquez that Supervisor Torres asked her who organized the Union and she told him she did, and that their conversation continued as she described it Although Marquez' testimony is undisputed, I also credit her account of the conversation be- cause I was persuaded by her demeanor that she was testifying truthfully, and because her testimony is consistent with the credited conduct of Re- spondent that followed D. Respondent's Knowledge of Employees' Union Activity-Events that Followed According to the uncontroverted evidence, Respond- ent received a letter dated 17 April 1985 from its land- lord, advising that Respondent became a month-to-month tenant of the second-level Carolina store on 13 April 1984. Respondent (Bennett) acknowledged that on 19 April 1985, it received verbal notice of the Union's peti- tion for certification, and on the same date, it retained legal counsel in the person of Padilla, counsel for Re- spondent; and that management had discussions on the legal do's and do not's with respect to the employees' or- ganizational effort. Respondent (Bennett) also acknowl- edged that on 23 April 1985 , it received notice from the Board that the Union claimed recognition of Respond- ent's employees. At the hearing, Respondent produced a letter (R. Exh. 4) it received 26 April 1985 from its landlord demanding that Respondent vacate the premises (second level) of the Carolina store by 31 May 1985. Bennett testified that subsequent to receipt of this letter, Respondent held a corporate meeting consisting of himself, President Stan Liu, and Jaime Rico. During their meeting, they decided to close the second-level Carolina store on 4 May 1985 because they were scheduled to attend a company con- vention in the states commencing on 10 May 1984, and they did not want to become liable as a hold over tenant. Hence, the earlier date (4 May) gave Respondent an op- portunity to close out the store before 31 May. Thereon, Respondent sent a letter (R. Exh. 6) informing its land- lord that it would cease business on the second level of the Carolina store 4 May 1985 , and vacate the building thereafter. On 2 May 1985, Respondent's president, Stan Liu, vice president, Allen Bennett, and secretary-treasurer, Jaime Rico, went to the second level Carolina store and Rico directed saleslady Marilu Marquez to close the store. When Marquez asked why, Liu told her Respondent had received a letter from Plaza Carolina Mall demanding that Respondent vacate the premises (second level) by 31 May 1985, and Respondent had decided to close the store 4 May 1985 . Rico suggested that Marquez file for unemployment compensation and that Respondent would assist her in doing so. According to the testimony of Marilu Marquez , she in- formed Rico that she would not file for unemployment because she needed her job. President Liu then told her the other alternative was for her to go the Dorado store, because the employee there had less seniority . According to President Liu, Marquez only stated that she did not want to go to the Dorado store . In this regard, Marquez testified she was pregnant at the time and her husband, Jorge Musa, informed Liu that she was having problems with her pregnancy and the Dorado transfer would in- volve strenuous travel for her condition . Jorge Musa then offered to go to the Dorado store himself if the Re- spondent would permit Marquez to remain in the first level of the Carolina. Respondent said, "No," because it was closing Marquez' store. Finally, President Liu said he told Marquez to take her time and decide what she wanted to do-think about it until noon tomorrow 434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (Thursday) and they (Liu, Bennett, and Rico) would come by the store tomorrow. On the next day (Thursday, 3 May) Rico and Liu came to the Carolina store and in the presence of Jorge Musa, asked Marquez what she had decided about going to the Dorado store. Marquez testified she replied, "You are the bosses and you must make the decision , but you know I have problems with my pregnancy ." However, President Liu testified Marquez said she did not want to go to Dorado and because customers were coming into the store, he terminated the conversation. But Marquez said she told Rico she knew that Chia traveled from San- truce to Dorado while she was not well, and that she was injured. Rico said Respondent could not do that, now with the Union-could not have the luxury of having many employees. Rico denied the Union was mentioned during the conversation . Marquez said she also asked Rico if she could replace Raisa Musa at the Guaynabo store because she was probably going on sick leave, or could Respondent allow her to remain in the Plaza Carolina store until the last day of closing. Rico said, "No," she had to accept the Dorado store , resign, or accept unemployment. Marquez further testified that during the conversation with Rico she reminded him that she had previously re- quested a 1-hour lunch period for the employees, instead of one-half hour; and that he told her it was not fair for the Carolina store to be closed for a whole hour while employees from other companies are having lunch. At this juncture, Marquez said she became upset and told Rico that because he previously indicated management would not meet and talk with the employees, she under- took to organize the Union, and that Respondent knows she was the organizer and that was why it was unfair to transfer her to the Dorado store. Liu offered her hus- band, Jorge Musa, outside working hours so he could earn extra money, but Jorge declined the offer. Marquez was crying at this time and Rico and Liu asked her what was she going to do and she asked them what decision were they going to make and they said they had to con- sult, and left the store.3 Raisa Musa Quinonez testified that about 3 May 1985, Vice President Rico told her that he had already found out that the employees wanted to unionize the Company; that Marilu Marquez was in charge of everything; and that she (Raisa) was a good employee and she should not get involved. Musa left the employment of Respondent on 3 May 1985 because of illness and pregnancy.4 8 I was persuaded by the demeanor of Marquez , Rico, and Liu, as well as by their uncontroverted testimony, that all three witnesses were testi- fying truthfully, with the exception that I do not credit Rico's denial and I credit Marquez' assertion that Rico mentioned the Union during their 3 May conversation I also credit Liu's testimony that Marquez said she did not want to go to the Dorado store. * Although Vice President Rico denied he mentioned the Union during his coversation with Raisa Musa on 3 May, I do not credit his denial I was persuaded by his demeanor that he was not telling the truth . Instead, I credit Musa's testimony because I was persuaded by her demeanor that she was telling the truth, and because her testimony is consistent with Respondent having had knowledge of the employee's union activity Having known about their organizing activity, it may be reasonably in- ferred that Respondent learned of Marquez ' organizing involvement from Supervisor Gabriel Torres, who visited Marquez ' home on 21 April, when she told him she had organized the Union. Because Rana Musa Based on the foregoing credited evidence, I find that on 3 April, Supervisor Torres told employee Musa that Respondent knew the employees were organizing a union and that Marquez was an organizer of the Union; that by telling Musa that Marquez was an organizer, Re- spondent created the impression among employees that the employees' union activities were under surveillance by Respondent, Jenkins Index Co., 273 NLRB 736 (1984); Second Federal Savings & Loan Assn., 267 NLRB 911 (1983); and that by telling Musa she should not get involved, Respondent encouraged employees to repudi- ate the Union with a subtle threat that she might be dis- charged if she joined and supported the Union all in vio- lation of Section 8(a)(1) of the Act. Modern Mfg. Co., 261 NLRB 534, 544 ( 1982); Samuel J. Wade, 255 NLRB 1383, 1388 (1981). Analysis and Conclusions In his posthearing brief, the General Counsel submits that the Board has defined the requisites for establishing a constructive discharge as The burden imposed upon the employee must cause, or be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, the resultant burden must be due to the employees' union activities. Kogy's, Inc., 272 NLRB 202 (1984). The General Counsel therefore argues that Respond- ent's transfer of Marilu Marquez to its more distant Dorado store rather than its closer Guaynabo store, or allowing her to remain in its Carolina II store while she was pregnant, imposed a more onerous and unpleasant working condition on her; and that such hardship trans- fer was intended to cause Marquez to resign from Re- spondent's employ. The parties stipulated that there is a difference of 13 additional miles from the Carolina Plaza store to Dorado, than from Carolina to the Guaynabo store. On the contrary, counsel for the Respondent argues that the General Counsel has failed to establish by a pre- ponderance of the evidence, either unlawful animus or that Respondent had knowledge of Marquez' union ac- tivities; that since Respondent has demonstrated nondis- criminatory reasons for closing its Carolina II store and transferring Marquez, the General Counsel must show that Respondent's proffered reasons for the transfer were pretextual; that Respondent treated Marquez disparately; and that her discharge was discriminatorily motivated. Finally, counsel for the Respondent argues that the General Counsel has the burden of proving that the change in working conditions is not only "difficult and unpleasant," but that the change is so "difficult and un- was not in Marquez' house when Torres arrived , he probably assumed or hoped Musa was not involved He therefore informed Musa Respondent knew about the union effort and who was involved, and encouraged her not to become involved with the Union . Although I considered the fact that Musa is the sister-in-law of Marquez, I was nonetheless persuaded that her in-law relationship did not influence her testimony. In fact the evidence established that Musa and Marquez did not get along well. WATERBED WORLD 435 pleasant" that Marquez was forced to resign. Algreco Sportswear Co., 271 NLRB 499, 500 (1984). The Re- spondent maintains that the General Counsel has failed to satisfy such requisite proof. Respondent's Knowledge of Marquez' Union Activities It has been previously found under topic C, supra, that Supervisor Gabriel Torres asked Marquez who started the Union and Marques told hun she organized the Union. Under such circumstances, Torres' knowledge of Marquez' union activities is imputed to Respondent. It therefore follows, and I find, that Respondent had knowledge of Marquez' union activities on 21 April 1985. I further find on the uncontroverted record of evi- dence that Respondent closed its Carolina II store for economic considerations. Thus a principal question presented for determination is whether Respondent's transfer of Marquez was based solely on objective business considerations, as Respond- ent contends, or is Respondent's business considerations defense a pretext to conceal its union animus and Mar- quez' discriminatory transfer, as the General Counsel contends. 1. Marquez' transfer The Respondent acknowledges it met with Marquez on 3 May, advised her of its decision to close the Caroli-, na II store, and gave her the option of being transferred to its Dorado store or to collect unemployment compen- sation. Marquez emphatically expressed her displeasure with the transfer-stating that she did not want to go to the more distant Dorado store because she had problems with her pregnancy. The Respondent knew Marquez had previously been on sick leave. Nevertheless, Respondent told her she was offered the tranfer to Dorado because the salesman in the Dorado store had the least seniority, and that under Puerto Rican law, of which I take admin- istrative notice, she was entitled to displace him. If the evidence ended here, it would appear that Respondent has justified Marquez' transfer for objective business con- siderations. The above evidence, however does not constitute the total evidence relating to the question of Respondent's reasons for concluding Marquez had resigned. Additional evidence established that Marquez, and her husband, Jorge Musa, suggested alternatives to her to transfer to the Dorado store. During further discussion of the trans- fer on 3 May, Marquez requested to be transferred to Respondent's closer Guaynabo store, because she learned that saleslady Raisa Musa would be going into the hospi- tal on 6 May. The Respondent rejected her request. When Rico and Liu came to the Carolina II store on 3 May and asked for Marquez' decision on the transfer, Jorge Musa volunteered to be transferred to the Dorado store if Respondent would transfer Marquez to the nearer Guaynabo store, or allow Marquez to work in the Carolina I store where he worked. Respondent rejected the offer and gave Marquez until noon the next day (4 May) to decide whether to accept the transfer or collect unemployment compensation. It is readily conceded that Respondent was not in any way obligated to accept the transfer suggestions of Mar- quez or her husband, Jorge Musa. But evidence of the events that followed questions the credibility of Re- spondent's stated reasons for transferring Marquez to the Dorado store and refusing to transfer her to the Guayn- abo or other stores. At the hearing it was established that Raisa Musa had previously informed Supervisor Torres that she was going on medical leave beginning 6 May. The evidence further established that in response to Raisa Musa's leave notice Respondent prepared a tentative work schedule for the Guaynabo store for the week of 6 May, which demonstrates that Respondent knew by at least Saturday (4 May) that Raisa Musa would not be in the Guaynabo store commencing 6 May. The documentary evidence es- tablished that the Guaynabo store was closed on 7 and 8 May for lack of personnel. The evidence further shows that Supervisor Torres attended the Guaynabo store on 9 and 10 May, and that Respondent transferred salesman Ivan approximately 64 miles from its Ponce store to the Guaynabo store for the workweeks commencing 13 and 20 May. In the afternoon of Saturday, 4 May, Bennett and Rio came to the Carolina II store and, after picking up the keys and asking for the day's sales, gave Jorge Musa and Marquez their checks and a written work schedule for the following week (6 May). The schedule indicated Marquez was assigned to the Dorado store. When Mar- quez asked Bennett what would happen if she did not report to the Dorado store on Monday, he said, "Resig- nation." She asked Rico what did that mean and he said, "To get used to it, make the adjustment to it." However, Rico testified that Marquez stomped her foot on the floor and said, "I will not go to Dorado," but Marquez denied that she ever said she would not go the the Dorado store.5 Immediately after her conversation with Rico, Mar- quez called Union Representative Lugo and told him what had transpired. He advised her to report to the Dorado store on Monday, and if she had any health problems to inform her supervisor, and obtain in writing that Respondent knew she was the union leader, that she was pregnant and had problems, and she had so informed the Respondent. Marquez prepared a letter (G.C. Exh. F(6)) and delivered it to President Bennett around 7 5 I credit Marquez' denial that she ever told Rico she would not go to the Dorado store The evidence establishes that Marquez is a 23-year-old young lady who has completed 2 years study at the University of Puerto Rico, specializing in respiratory therapy She testified that her grades were As, Bs, and Cs. As I observed her testify, I received the impression that she is very intelligent and considerably mature for her age. I was also persuaded that she was accurate and truthful in testifying On the contrary, I discredit Rico in this regard, because I was persuaded by the substance of his testimony, as well as by his demeanor, that he was exag- gerating Marquez' displeasure by stating that she said she would not go to Dorado, rather than she did not want to go to Dorado. A review of Marquez' testimony throughout the record will show that she was very careful not to ever refuse to accept the assignment although she vocal- ized her desire not to go to Dorado 436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD o'clock on the same evening at the warehouse. The letter read as follows: May 4, 1985 To Whom It May Concern I Marilu Marquez Garcia [am not in condition to accept the Dorado Store because as you know I am a working mother and my health condition is not the best. About a month ago I almost had a miscar- riage and would have lost my baby because of the problems with this Company (Omnix Co. & Wa- terbed World).] I know that my transfer is unfair and for union reasons. Also for this reason I consider I am dis- criminated against because of union reasons and without taking into account my health condition. [Please I want you not to misinterpret my decision and find a satisfactory solution for both in the short- est possible time.] Rico testified that after they received Marquez' leter at 7 p.m. at the warehouse on 4 May, he and Bennett inter- preted her letter as a letter of resignation. They therefore deemed Marquez no longer worked for the Respondent. In a letter dated 9 May 1985, Marquez replied to Re- spondent's 4 May 1985 letter, emphatically stating she did not resign but simply expressed despair with Re- spondent's abrupt decision to terminate her employment or transfer her to the Dorado store. She said she simply requested Respondent to reconsider its transfer decision. 2. Resignation It is particularly noted that Respondent contends that Marilu Marquez voluntarily terminated her employment by written resignation on 4 May 1985, and that Respond- ent terminated the employment of Gloria Garcia on 6 May 1985, because it had closed the Carolina store and it had no work for her. In Wright Line, 251 NLRB 1083 (1980), the Board held that lawful as well as an unlawful motive may exist for the discharge of an employee, the General Counsel is required to make a prima facie showing that the employ- ees' protected activities motivated the employer's dis- charge of the employee. If the General Counsel is suc- cessful, the burden then shifts to the employer to show by a preponderance of the evidence that the discharge would have occurred even in the absence of the employ- ees' protected activities. The parties are in dispute as to whether Marquez' 4 May letter to Respondent constituted a resignation. Re- spondent contends that it is a resignation and the Gener- al Counsel argues that it is not. Although Marquez' letter did not unequivocally state that "I tender my resignation effective 4 May 1985," she did know that Respondent's only alternative to her assignment to the Dorado store was resignation. Consequently, when she stated in her letter that she was "not in condition to accept the Dorado store" because of health conditions (problems with pregnancy), she impliedly opted to accept the alter- native, resignation. At least that was not an unreasonable interpretation of her letter by the Respondent. The lan- guage in the second paragraph of her letter is merely a reiteration of her dissatisfaction with the transfer and the implied request by her that Respondent reconsider the assigned transfer Under these circumstances I find that Marquez resigned with protest and by implication re- newed her request to be assigned to the Guaynabo store. When Respondent did not respond to her implied request on Saturday evening (4 May) or Sunday (5 May), Mar- quez contacted Respondent (Liu) at 9 a.m. on Monday, 6 May, and advised him that she was prepared to go the Dorado store and requested the keys for the store. Liu told her at that time, and again when she called at 9:15 a.m., that Bennett was not there and he knew nothing about the keys. Thereafter, Marquez, accompanied by her mother, Gloria Garcia, went to and arrived at Respondent's warehouse at 9:30 a.m. Marquez told Liu she was there to see Bennett and to get the keys to the Dorado store. When Bennett arrived she told him she was prepared to go to the Dorado store and she came to pick up the keys. Bennett told Marquez he had accepted her resigna- tion. Also, for the first time he surprisingly informed Gloria Garcia her employment was terminated because the Carolina II store was closed and he had no work for her. A few minutes later, Bennett presented Marquez a letter advising her that Respondent had accepted her res- ignation. Although an unlawful motive for the 13 extra miles transfer of Marquez to the Dorado store on 4 May did not appear designed to force her to resign, it is clear from the evidence that she rescinded the 4 May resigna- tion as early as 9 a.m., and at 9:15 a.m. on 6 May, when she called and informed president Stan Liu that she was prepared to go to the Dorado store and asked him for the keys to the store. Marquez further orally rescinded her resignation after she arrived at the warehouse at 9:30 a.m. on 6 May and requested the keys to the Dorado store. All of her 6 May efforts to comply with the as- signed transfer occurred before Bennett informed her Respondent had accepted her resignation. When he did so inform her, she denied and protested his interpretation of her letter as a letter of resignation. As the General Counsel noted, in Heritage Nursing Homes, 269 NLRB 230, 233 (1984), a nursing assistant employee had suported the union and had testified in a hearing against the employer on objections. Subsequent- ly, on 17 November 1982, the nursing assistant employee voluntarily informed her supervisor that she had accept- ed a private duty job 50 miles away, and she tendered her resignation effective 26 November. Her supervisor tried unsuccessfully to persuade her to remain with the employer. She even told the employee she could tear up her resignation if she changed her mind. On Saturday, 20 November, the employee learned that the private patient had died and her services for private duty would not be needed. She immediately called her supervisor on Monday, 22 November, and asked if her offer to tear up the resignation was still good because she wanted to con- tinue to work for the employer. After consulting with superior management, the supervisor informed the em- WATERBED WORLD 437 ployee that she could not rescind her resignation even though she had not been replaced by the employer. Relying on Sycor Inc., 223 NLRB 1091 (1976); Taft Broadcasting Co., 238 NLRB 588, 591-593 (1978), enfd. in relevant part 652 F.2d 603 (6th Cir. 1980); U.O.P., Inc., 235 NLRB 621 (1978), the administrative law judge found, with Board approval , that the employee was re- fused permission to rescind her resignation because she testified against the employer, and because she supported the union. The employer's refusal was therefore in viola- tion of Section 8(a)(1), (3), and (4) of the Act. In the instant case, Respondent learned through its su- pervisor, Gabriel Torres, on 21 April 1985. that Marquez was the chief organizer of the Union. On the same date Supervisor Torres also told Marquez that Vice President Bennett had received a letter that had something to do with the Union, and that Marquez, Garcia, and Jorge Musa were going to be dismissed . It may be reasonably inferred from Respondent's knowledge of Marquez' union activity and from Supervisor Torres' prophecy that Marquez and her mother (Garcia) were going to be dismissed, that Respondent refused to acknowledge and permit Marquez to rescind her resignation because of her union activities. This conclusion is further supported by the evidence that Respondent had not replaced Marquez nor had it been able to schedule a permanent salesperson in its Guaynabo store on 6 May and several other days and weeks in May. Nor was there much time for Re- spondent to make staffing arrangement for its Guaynabo store between Marquez' written resignation of 4 May and her emphatic and unequivocal oral rescission of her resignation on the morning of 6 May. Obviously this chain of actions by Marquez and reac- tions by Respondent caught Respondent by surprise, be- cause Respondent knew Marquez did not want to go to the Dorado store. Knowing that she did not want to go there, Respondent apparently believed she would not go to Dorado, but would elect to resign permanently. In this way, her resignation would give the appearance that Respondent tried to keep Marquez in its employ even though it had to close the Carolina II store . However, Respondent's motive for transferring Marquez to the Dorado store although it had a temporary opening at its Guaynabo store, which Marquez requested, is vividly re- vealed by its refusal to permit Marquez to rescind her resignation and go to the Dorado or the Guaynabo store. Under such circumstances I find that the evidence clearly established that Respondent's refusal to permit Marquez to rescind her resignation was unlawfully moti- vated because of her union activities. I farther find that Respondent's contention that Marquez voluntarily re- signed on 4 May is a mere pretext to camouflage its real reason for tranferring her and refusing to permit her to rescind her resignation . Consequently Respondent's un- lawful refusal to permit Marquez to rescind her resigna- tion is violative of Section 8(a)(1) and (3) of the Act. General Baptist Nursing Home, 259 NLRB 982, 984 (1982). 3. The termination of Gloria Garcia Further revealing and supporting the unlawful motive for Respondent's refusal to permit Marquez to rescind her resignation is the termination of her mother, Gloria Garcia. In keeping with the 21 April prophecy of Re- spondent's Supervisor Gabriel Torres that Marquez, Garcia, and Jorge Musa were going to be dismissed, Re- spondent first notified Garcia on the morning of 6 May, that her employment was terminated immediately be- cause the Carolina II store was closed and it had no work for her. It is particularly noted, however, that for some unexplained reason, Respondent, in the presence of Garcia, notified Marquez of her option to transfer to the Dorado store or resign on 4 May. Respondent said noth- ing to Garcia about her working tenure until the morn- ing of 6 May, when she accompanied her daughter, Mar- quez, to the warehouse and Respondent told Marquez it had accepted her resignation. Garcia worked a rotating schedule at several of Re- spondent's stores. She worked 40 hours some weeks and 2 or 3 days during the other weeks. She worked more time in the Carolina I store than she did in any of Re- spondent's other stores. As previously noted, Respondent learned on Friday, 3 May that Raisa Musa was not going to work in the Guaynabo store on Monday, 6 May, and possibly a few additional days thereafter, because she was going into the hospital. The evidence does not show that Respondent would no longer need a rotating sales- person like Garcia to cover its stores during absences of other sales personnel. In fact the evidence shows Re- spondent needed a salesperson to work the Guaynabo store during the entire week of 6 May because Raisa Musa was on sick leave, of which fact Respondent had advanced notice on Friday, 3 May. The Respondent needed a salesperson during 2 other weeks in May. Thus Respondent's statement to Garcia that it had no work for her is not only not convincing, but refuted by the cred- ited evidence of record. It is therefore clear that Respondent could have uti- lized the sales services of either or both Marquez or Garcia during the week of 6 May, as well as the other 2 weeks in May when Torres or another employee was tranferred to the Guaynabo store. Moreover, if Respond- ent had in fact believed Marquez had resigned, as it con- tends it did, it would have known it was going to need sales personnel when it abruptly terminated Garcia's em- ployment without prior warning. When all of these evi- dentiary factors are considered in conjunction with the precipitous nature of Garcia's discharge, Supervisor Torres' prophecy that Marquez and Garcia were going to be discharged and that Garcia is the mother of chief organizer Marquez, and that both Marquez and Garcia both supported the Union, it becomes abundantly clear, and I find, that it may be reasonably inferred from such evidence that Respondent's discharge of Garcia was also motivated by her union activities and/or those of her daughter, Marquez, the chief organizer of the Union. Consequently, I find that the General Counsel has estab- lished a prima facie case that Respondent 's discharge of Garcia was union related. Wright Line, supra. Additionally, I further find that because Respondent had several weeks of sales work in its several stores after 6 May, Respondent's contention that it had no work for Garcia is pretextual. Thus, Respondent, having failed to 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD show that it had no work for Garcia on and after 6 May, when the evidence shows otherwise, has failed in its burden to establish that Garcia would have been dis- charged even if she, or her daughter (Marquez), had not been engaged in union activities. Wright Line, supra; Limestone Apparel Co., 255 NLRB 722 (1981); Fedco Freightlines, 273 NLRB 399 (1984). Respondent's conten- tion that it terminated Garcia because it had no work for her is therefore pretextual. E. Objections to the Election The union election for Respondent's employees was held on 3 June 1985. The Respondent filed timely objec- tions to conduct allegedly affecting the result of the elec- tion, and the objections were consolidated for hearing with the unfair labor practice charges in the instant pro- ceeding. The Respondent contends the Union engaged in im- proper conduct during the progress of the election at the Plaza Carolina I store. Specifically, it alleges that union representatives engaged in prolonged conversations with employees while they were waiting in line to vote. The Union denied their representatives were in the election area during the election. Respondent's evidence in sup- port of the objections is Vice President Alan Bennett's testimony that is corroborated by Respondent's President Liu. Their testimony established that during the election, which took place in the store, both Bennett and Liu were seated outside the store approximately 60 feet to the left of the entrance gate to the store. While seated in that position, they testified they observed the three union representatives (President Lugo and organizers Borges and Negron) standing approximately 6 feet to the left side of the entrance gate to the store, while engaging in animated conversations (making proper gestures) with employees. Both of Respondent's witnesses acknowl- edged they could not hear what the union representa- tives and employees were talking about. After Union President Lugo, Respondent's vice presi- dent, Bennett, and Respondent's president, Liu, conclud- ed their testimony, there was a confusing dispute as to where the balloting took place. However, after union witnesses testified, the credited testimony of all witnesses finally established that the balloting of the employees ac- tually took place in a room located on the second floor at the rear of the store. In casting their ballots, each em- ployee had to enter the gate to the store, proceed ap- proximately 36 feet to the rear of the store, ascend the right set of stairs to the second floor, and walk 6 to 12 feet into a room where they marked their ballot. Having marked their ballots, the voting employee, with his or her ballot, left the room, descended the stairs, proceeded approximately 18 feet towards the center of the store, deposited their ballots in the ballot box located there, and proceeded the remaining approximately 20 or 24 feet out of the store and through the entrance gate. The union witnesses (Lugo and Negron) testified with- out dispute that, after the voting commenced, they went outside the store and stood 15 or 20 meters (at an angle) to the left of the entrance gate. They said they could not see the employees in the store. The parties stipulated that the employees could not see anyone (union representa- tives or others) outside, as they descended the stairs and proceeded to deposit their ballots in the ballot box. Employee David Fernandez credibly testified that he voted at the Carolina store. He said he could see the voting area from where he stood outside; that he did not see any union people in front of the store; and that al- though he could see outside the store, he could not see any union people while he was depositing his ballot. The record shows that the voting employees who testified all said they could not see union representatives while they were voting, but that they saw union representatives standing outside a few feet on either side of the gate as they left the store. In response to questions by the Gen- eral Counsel, Bennett said he did not hear the Board agent call or reprimand either employees or union repre- sentatives about improper conduct before, during, or sub- sequent to the election. I am therefore persuaded and I find, on the foregoing essentially uncontroverted and credited evidence, that union representatives were not in the election area during the progress of the election. Nor could union rep- resentatives see and talk with employees during the course of their balloting. I further find that Respondent has failed to establish by a preponderance of the evi- dence, that union representatives held any conversations with employees before or during the election; and that Respondent's objection in this regard is not substantiated or sustained. Challenged Ballots Finally, Respondent challenges the ballots of former employees Marilu Marquez, Gloria Garcia, and Delia Cabral on the ground that they were not employed by Respondent on the date (3 June 1985) of the election. In order to be eligible to vote, counsel for the Re- spondent correctly argues that an employee must be em- ployed during the payroll period of eligibility and the date of the election. Columbia Pictures Corp., 61 NLRB 1030 (1945); B.L.K. Steel, 245 NLRB 1347 (1979); and that employees who have quit or have been discharged for cause before the election are not eligible to vote. Rish Equipment Co., 150 NLRB 1185 (1965). However, it is understood that the above cited cases are not applica- ble to employees who have been discriminatorily termi- nated from employment in violation of the Act. As pre- viously found in the instant case , Marilu Marquez was unlawfully refused permission to rescind her resignation because she organized the Union. Gloria Garcia was also unlawfully terminated from part-time employment be- cause she supported the Union, and/or because she is the mother of Marquez, who was the union organizer. Under these circumstances, Respondent's challenge to the bal- lots of Marilu Marquez and Gloria Garcia is not sus- tained. With respect to Delia Cabral, Respondent credibly es- tablished, without controversy, that Respondent termi- nated Cabral 16 January because she gave the Compa- ny's store keys to a person not employed by the Re- spondent. Since her termination, Cabral has not worked for the Respondent. WATERBED WORLD 439 In view of the foregoing uncontroverted and credited evidence, I conclude and find that Delia Cabral was ter- minated for cause on 16 January . Rish Equipment Co., supra. Consequently, Cabral was not in Respondent's employ during the payroll period of eligibility and date of election (3 June 1985). Columbia Pictures Corp., supra; B.LK Steel, supra. Consequently, Respondent's objec- tion to her ballot is sustained. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be or- dered to cease and desist therefrom and that it take cer- tain affirmative action necessary to effectuate the policies of the Act. It having been found that Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights by coercively interrogating em- ployees about their membership in or activities on behalf of the Union; by threatening employees with discharge if they became or remained members of the Union; by en- couraging an employee to repudiate the Union ; by creat- ing the impression among employees that their union ac- tivities were under surveillance ,, Respondent violated Section 8(axl) of the Act; that by discriminatorily dis- charging two employees because they engaged in union activities, Respondent violated Section 8(a)(3) and (1) of the Act, the recommend Order will provide that Re- spondent make the discharged employees whole for any loss of earnings they might have suffered within the meaning and in accord with the Board's decision in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977),6 except as specifically modified by the wording of such recommend Order. Because of the character of the unfair labor practices found, the recommended Order will provide that Re- spondent cease and desist from in any like or related manner interfering with, restraining, or coercing the em- ployees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). On the basis of the above findings of fact and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Omnix International Corporation d/b/a Waterbed World, the Respondent, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Union Independiente de Supermercados y Tiendas por Departamentos, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees about their membership in and activities on behalf of the Union, the Respondent violated Section 8(a)(1) of the Act. 4. By threatening employees with discharge if they became or remained members of the Union, Respondent violated Section 8(a)(1) of the Act. 5. By encouraging employees to repudiate the Union, Respondent violated Section 8 (a)(1) of the Act. 6. By creating the impression among employees that their union activities were under surveillance , Respond- ent violated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 6 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD PAGE LEFT BLANK INTENTIONALLY.