Montgomery Ward & Co., Inc.

126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and United Food and Commercial Workers International Union, Local Union No. 455, AFL-CIO, CLC. Cases 23-CA-7882, 23-CA-7888, 23-CA- 8019, 23-CA-8089, 23-CA-8323, 23-CA-8414, and 23-RC-4887 March 24, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On March 10, 1982, Administrative Law Judge Gordon J. Myatt issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, 1 findings,2 and conclusions as modified and to adopt the rec- ommended Order as modified. We agree with the judge that the Respondent en- gaged in the following unlawful conduct: 1. The Respondent violated Section 8(a)(1) by numerous acts of interrogation, threats, and surveil- lance: (a) Store Manager Hull on several occasions engaged in surveillance of employee union activi- ties and interrogated and threatened employees;3 1 We grant the General Counsel's motion to correct certain errors in the transcript 2 The Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. 3 We do not adopt the judge's finding that the Respondent violated Sec. 8(a)(1) by Hull's comments to employees Carlos Molina and Fred Garcia that if the Union came in, employees could no longer come di- rectly to management with problems, Hull's door would not be open to employees, and employees would have to go to the Union with any com- plaint We do not view Hull's remark as a threat to take away benefits, but as an expression of opinion of the probable consequences of union representation beyond management's control—i.e , "[c]hanges which occur between employers and employees when a statutory representative is selected." Tr-Cast Inc , 274 NLRB 377 (1985). See also Koons Ford, 282 NLRB 506 (1986). For, "[lit is a `fact of industnal life' that when a union represents employees they will deal with the employer indirectly, through a shop steward." NLRB v. Sacramento Clinical Laboratory, 623 F 2d 110, 112 (9th Cir. 1980), quoted in Tri-Cast. We likewise do not find an 8(a)(1) violation based on Hull's statement to Mohna that m the event of unionization, employees would not get pay raises as frequently because the Union only provided for raises once every 3 years. We consider the statement to be fairly understood as a re- flection of Hull's understanding of union contract provisions and not a threat that the Respondent would grant fewer wage increases if the Union was selected as representative We do not quarrel with our dissenting colleague's statement of the governing principle, as articulated in NLRB v. Gissel Packing, 395 U S. (b) Operating Manager Gore interrogated employ- ees, 4 threatened employees with adverse working 575 (1969). In our view, however, the subject of prediction here—the fre- quency of wage raises which would be available in a contract with the Union—is not something that the employer could effect "solely on his own initiative" in the same way that an employer could realize unilateral- ly a threat of plant closure "for reasons unrelated to economic necessities and known only to him." See 395 U S at 618 As the judge here ob- served, "any collective-bargaining agreement between the Respondent and the Union had to be the result of mutual consent by the negotiating parties." Sec' IV,B, par 6, infra. It therefore does not follow, contrary to the judge, that Hull's statement in any way was "implying that the Union could or would umlaterally limit the frequency of pay raises," id We would distinguish Rexall Corp., 265 NLRB 121, 126 (1982), in that the Board there upheld a finding that the challenged statement suggested the unilateral and automatic loss of job privileges on the mere election of the union. That Hull may eventually be proved wrong in what a bargaining agreement may provide concerning wage raises simply does not rise to the level of a threat condemned by Gissel Member Babson, contrary to his colleagues, would adopt the judge's finding that the Respondent, through Store Manager Hull, violated Sec. 8(a)(1) by tellmg employee Molina that "the employees would not be able to receive raises as frequently as they had been getting them in the past, because the Union contract would only provide for raises once every three years." The judge discredited Hull's denial that he had made any such statement To be lawful under the standard set in NLRB v. Gissel Packing Co, 395 U.S. 575, 618 (1969), predictions of the conse- quences of unionization "must be carefully phrased on the basis of objec- tive fact to convey an employer's belief as to demonstrably probable con- sequences beyond his control . If there is any implication that an employer may or may not take action solely on his own initiative for rea- sons unrelated to economic necessities and known only to him, the state- ment is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion . " Id. The Court rejected the sincerity of the employer's belief as a potential defense Id In the present case, where the record is devoid of evidence that Hull's statements were made m the context of any reference to the negotiability of wages or any actual union demands or contract, there was a threat of loss of wages by the implication that such a change would inevitably result from unionization. There is no factual basis for my colleagues' conclusion that Hull's statement was based on his under- standing of umon contract provisions, particularly in view of Hull's denial that he addressed the subject NLRB v. Rexall Corp. 725 F 2d 74 (8th Cir. 1984) (statement that union victory might mean loss of current benefits violation—omission of statement that all terms and conditions ne- gotiable is critical, with regard to other allegation no violation to de- scribe terms and conditions of unionized employees when not implying that such terms would automatically or inevitably apply as a result of unionization) Cf Maestro Cafe Associates, 270 NLRB 106, 108-109 (1984) (no violation when adequately informed employees' reduced benefits would be aspect of negotiations and no implied threat that respondent would rescind its employees' benefits if union came in), Sheraton Plaza LaReina Hotel, 269 NLRB 716 (1984) (no violation to make truthful statement that union's contracts in area provided less than benefits cur- rently enjoyed by employees) 4 We have reviewed the instances of interrogation by Operating Man- ager Gore and other management representatives m light of our decision in Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom Hotel & Res- taurant Employees Local 11 v. NLRB, 760 F 2d 1006 (9th Cir 1985), which overruled to some extent PPG Industries, 251 NLRB 1146 (1980), cited by the judge See also Sunnyvale Medical Clinic, 277 NLRB 1217 (1985) Except for Gore's interrogation of employee Gilberto Morales discussed below, we agree with the judge's conclusions concerning inter- rogation, and find that under the circumstances those instances which he found violated Sec 8(a)(1) were coercive ' We note that in questioning employee Carlos Molina, Store Manager Hull asked him to reveal the names of union supporters, Retail Sales Manager Delano accompanied his interrogation of employee Amelia Caro with a threat of discharge if she continued to assist union organization, Sales Promotion Manager Frank Perez, while interrogating employee Arturo Tristan, indicated that Tris- tan had not received a raise because of union involvement and might re- ceive one if he opposed the Union; Department Manager David Gonzales called three salesmen in his department to his desk and asked if they Continued 288 NLRB No. 20 MONTGOMERY WARD & CO 127 conditions and loss of hours, and regularly made disparaging remarks to the leading union adherents; (c) Security Manager Villarreal engaged in surveil- lance of employees, attempted to enlist employee Fred Garcia to support this endeavor, and created the impt:ssion that employees' union activities were under surveillance; (d) Retail Store Manager Delano created the impression of surveillance and interrogated and threatened employees; (e) Super- visor Rocha created the impression of surveillance; (f) Department Manager Moreno created the im- pression of surveillance; (g) Assistant Personnel Manager Paloma of the Respondent's Laredo store unlawfully interrogated employees and implied that the Respondent would retaliate against them be- cause of their union activity; (h) Sales Promotion Manager Frank Perez unlawfully interrogated an employee, indicated that the employee did not re- ceive a raise because of his union activity, and im- plied that he would if he opposed the Union; and (i) Department Manager David Gonzales unlawful- ly interrogated the employees in his department.8 2. The Respondent violated Section 8(a)(1) by soliciting grievances storewide through conducting an opinion survey and by soliciting grievances of individual employees Fred Garcia and Carlos Molina. 3. The Respondent violated Section 8(a)(1) by granting wage increases to 140 employees March 26, 1980, and 70 employees June 4, 1980, to under- mine the union organizing effort.8 knew anything about the Union; Department Manager Moreno asked em- ployee Gloria Diaz if she had signed a union card and gave the impres- sion that union activity was under surveillance by indicating he knew which employees in his department supported the Union; Assistant Per- sonnel Manager Paloma of the Respondent's Laredo store asked employ- ees at a party whether they had signed union authorization cards and when told that they had, asked whether they knew what they were doing, implying in this and subsequent 1 elephone conversations with em- ployee Amelia Caro, that reprisals might follow union activity. In agree- ing with the above finding of unlawful interrogations, Member Cracraft finds it unnecessary to rely on Sunnyvale We find it unneccessary to decide whether Gore's interrogation of em- ployee Morales was coercive, because a finding that this incident of inter- rogation violated Sec 8(a)(1) would be cumulative and would not affect the Order. 5 The judge also found that Gonzales violated the Act by stating that only the hourly employees and not the commission salespersons would benefit from union representation. We do not agree, and find that the statement did not violate Sec. 8(a)(1) In the circumstances we view it merely as an expression of opinion which cannot reasonably be construed as CA:SarClve. 6 In finding that the wage increases were violative of Sec 8(a)(1), we do not rely on any presumption that mei eases granted during an organiz- ing campaign are unlawful. Rather, we draw an mference of improper motivation and interference with employee free choice from all the evi- dence presented and the Respondent's failure to establish a legitimate reason for the taming of the increases See Lake Development Management Co., 259 NLRB 791, 792 (1981), May Department Stores Co., 191 NLRB 928 (1971) Our finding that the wage increases were unlawfully granted does not Imply that the Respondent is authorized to revoke them. 4. The Respondent maintained an unlawfully broad no-solicitation rule in violation of Section 8(a)(1), 7 and enforced its no-solicitation policy in a discriminatory manner. 5. The Respondent violated Section 8(a)(3) and (1) by suspending employee Carlos Molina and dis- charging employees Mary Guerra and Javier Del Castillo, both of whom played a leading role in the organizing effort. 6. The Respondent violated Section 8(a)(1) by ejecting Lois Johnson, a nonenaployee organizer, from its buffeteria. The Respondent operates its buffeteria for use by the general public as well as by employees for meals and breaks. At the time she was ejected, Johnson was meeting with off-duty employees while eating at the Respondent's buffe- teria. Thus, she was clearly using the buffeteria in a manner consistent with its purpose. The Board and the courts have traditionally held that solicitation in restaurants cannot be prohibited when, as in this case, the conduct of the nonemployee organizer is consistent with the conduct of other patrons of the restaurant. Dunes Hotel & Country Club, 284 NLRB 871 (1987); Harold's Club, 267 NLRB 1167 (1983), enfd. 758 F.2d 1322 (9th Cir. 1985); Ameron Automotive, 265 NLRB 511 (1982); Montgomery Ward & Co., 263 NLRB 233 (1982), enfd. as modi- fied 728 F.2d 389 (6th Cir. 1984); Montgomery Ward & Co., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982); Marshall Field & Co., 98 NLRB 88 (1952), enfd, as modified 200 F.2d 375 (7th Cir. 1952). To hold otherwise would license a property owner to prohibit a union organizer from utilizing its restaurant solely because the organizer was discussing organizational activities with off- duty employees (who are there in the capacity of restaurant patrons). Such a prohibition, which dis- criminates on the exclusive basis of the union's or- ganizational activity, flies in the face of the Su- preme Court's admonition against discrimination on this basis when determining the propriety of access restrictions. NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956). 8 Even assuming the Respondent could have lawfully prevented Johnson from solic- iting in the selling area, it could not prevent her from using its public restaurant in an orderly way, not disruptive of its business, even though she had earlier made appointments with employees on the sales floor. To remedy the Respondent's extensive unfair labor practices outlined above, 8 we conclude, as 7 In general, see Our Way, Inc , 268 NLRB 394 (1983). 8 We do not view the majority position in Fairmont Hotel, 282 NLRB 139 (1986), as conflicting with this analysis. 9 As the Board election conducted June 18, 1980, will be set aside in any event, we find it unnecessary to pass on whether the raffle conducted by the Respondent warrants setting aside the election. 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD recommended by the judge, that a bargaining order is necessary and appropriate.10 We note initially that the Union achieved majori- ty status April 24, 1980 when, as the judge found, it had obtained 145 valid authorization cards in a unit of no more than 283 employees." The cards were unambiguous single-purpose cards by which the employee authorized the Union "to represent me for the purpose of collective bargaining." Such cards are adequate proof of employee union senti- ment. 12 We do not agree with the Respondent's contention that representations made by union so- licitors to some employees when they signed the cards invalidate them. In our view, statements to the effect that signatures are needed to bring in a union, have a meeting, get information, or get an election 13 are not inconsistent with the stated rep- resentative purpose of the card, and do not negate the written language of the card or amount to a di- rection to the signer to disregard the written lan- guage." They do not inform the signer that the "only" purpose of the card is the purpose stated by the solicitor, not the purpose stated on the card." Consequently, cards signed on these representations may be counted toward the Union's majority status. 10 NLRB v. Gissel Packing Cc, 395 U.S. 575 (1969). We agree with the judge that the Union's April 10, 1980 demand for recognition was a con- tinuing one Even absent a demand for recognition, however, a bargain- ing order is appropriate here as of the date when the Union achieved ma- jonty status and the Respondent had commenced its unlawful antiunion campaign. See Peaker Run Coal, 228 NLRB 93 (1977); Kona 60 Minute Photo, 277 NLRB 867 (1985). " The parties stipulated there were 283 unit employees April 10, 1980, and that two of those employees were terminated between April 10 and 30 (exact date of terminations not given) The judge did not include the card of Maria Alicia Garza in determin- ing the Union's majority because it was dated April 30, 1980, but he found the card was a valid designation. We find it unnecessary to consid- er the validity of the card as it does not affect the Union's majority status determined as of April 24, 1980. The judge did count the card of Lenore Rutledge, and we agree that it should be counted Rutledge's card is au- thenticated by the testimony of employee Del Castillo, who knew Rut- ledge and gave specific details about the card. Del Castillo testified that he had talked with Rutledge several times, explamed the time and place where she returned the card, and identified his handwriting on the card that he had filled out except for the signature. We interpret his testimony suggesting some uncertainty about whether she gave the card to him as being uncertainty with regard to whether she handed it to him or to an- other person with him In response to the question, "How did the card get back to you?" Del Castillo testified, "I'm not sure if she gave it back to me or not, because that's—at that time, there was Mary Guerra along with me." Like the judge, we also include in the Union's majority count the cards of Jackie Wisdom and Rachel Salmas, who attempted to revoke their cards sometime after the Respondent had engaged in widespread unfair labor practices See Warehouse Groceries Management, 254 NLRB 252 (1981). 12 NLRB v. Gissel Packing Co, 395 U.S. 575, 603 (1969). 13 Statements that were made to employees Baldomar Ramirez, Ru- dolfo Cunel, Yvonne Trevino, and Sylvia Perez. 14 See NLRB a Gtssel Packing Co., 395 U.S 575, 606 (1969); Cumber- land Shoe Corp, 144 NLRB 1268 (1963). , 15 The judge did not credit the testimony of employee Richard Can- ales that a card solicitor told him the only purpose of the card was to get an election. We see no reason to reject the judge's credibility finding. We also do not consider that representations made to card signers Servando Sandoval and Gil- bert Martinez that other employees had already signed cards destroyed their choice so as to invali- date the cards. We consider such representations generally to be in the nature of campaign "puf- fery," which employees are capable of evaluating. See Winco Petroleum Co., 241 NLRB 1118 (1979), enfd. 668 F.2d 973 (8th Cir. 1982), Marie Phillips, Inc., 178 NLRB 340 (1969), enfd. 443 F.2d 667 (D.C. Cir. 1970), cert. denied 403 U.S. 905 (1971). Although the courts of appeals of the various cir- cuits have differed concerning the validity of au- thorization cards signed when solicited with mis- representations about the amount of support for a union, the court decisions do not establish a per se rule invalidating any card solicited in connection with such misrepresentations. Rather, the circum- stances surrounding such solicitations have been considered.16 The circumstances surrounding the solicitation of cards from Sandoval and Martinez convince us that the representations made to them did not impair their independence in choosing to sign the cards. The language of the representations was general and amounted to no more than customary cam- paign propaganda with which employees are famil- iar. The representations were made during nonhos- tile conversations between an employee solicitor and the individual signer. 17 They were not accom= panied by coercive statements or actions or any suggestion that the employee's failure to sign would result in reprisal by the employees who had already signed. The solicitors offered additional ar- guments to Sandoval and Martinez for signing, such as the opportunity for more benefits and better management. And, as the judge found, it was not shown that the representations about other em- 16 See, for example, NLRB v. Roney Plaza Apartments, 597 F.2d 1046, 1051-1052 (5th Cir. 1979), and cases there cited, denying enforcement 232 NLRB 409 (1977). We note that the court's decision in Roney and all but one of the cases on which it relied were decided when either Holly- wood Ceramics Co, 140 NLRB 221 (1962) (campaign misrepresentations involving a substantial departure from the truth made at a time prevent- ing effective reply warrant setting aside an election), or General Knit of California, 239 NLRB 619 (1978) (same), were Board law governing mis- representations generally These cci were later overruled in Midland National Life Insurance Co., 263 NLRB 127 (1982) (truth or falsity of campaign statements will no longer be probed, and misrepresentations of fact will no longer be basis for setting election aside). 17 Sandoval and Martinez, employed as commission salesmen of televi- sion or major appliances, were solicited by fellow employees. Sandoval testified that the solicitor asked if he wanted to join the Union, stated they were going to get better benefits and a better sales commission, and said, "that every body had signed the card, except that I was the only one left, that hadn't signed the card." Martinez testified the solicitor told him a "lot of people" in the store wanted to go union and "everybody here in the department" had signed a card. He asked if Martinez would like to sign, said they were trying to organize, and get a certain amount of cards signed, and that they wanted better management. MONTGOMERY WARD & CO. 129 ployees' support were the reason that the employ- ees signed the cards. The evidence of misrepresentations of union sup- port in this case is significantly different from the evidence in NLRB v. Roney Plaza Apartments, supra. In Roney Plaza the card solicitors had planned from the outset to tell each employee being solicited that all the others had already signed, and the solicitors obtained nearly all the cards in I day, allowing little chance for the decep- tion to be discovered." The court there declined to evaluate separately the circumstances of each employee's decision to sign a card. It regarded the overall union scheme as amounting to such serious misconduct that it concluded on that basis alone that the cards could not support a Gissel bargaining order. We do not read Roney Plaza as holding that whenever we have evidence that any employee was told that all others have signed or (as in the case of Martinez) that all others in his department have signed, we must inquire into the precise number who had signed at the date and hour the representation about union support was made. Nor do we read Roney as holding that, having made such an inquiry, we would be barred from count- ing the card unless the solicitor's statement was shown to be accurate." When, as in the present case, the circumstances of a solicitation provide no basis for assuming that an employee was coerced by the possible misstatement, we see no reason for disregarding the expression of intent manifested in the clear language of the card he or she has signed. In sum, in considering the validity of the authori- zation cards on which we have based the Union's majority status, 2° we rely on our interpretation of NLRB v. Gissel, supra, as establishing that employ- ees can understand the clear language of an unam- biguous authorization card and make a free choice of representation by signing one unless the lan- guage of the card is negated by statements of the i6 We note that, of all the subjects on which parties to elections might make misrepresentations, a claim that fellow employees have signed cards should ordinarily be among the easiest for employees to verify by them- selves. 12 We agree with the Roney court that a "critical" factor in the hold- ing of the Supreme Court in NLRB v. Savair Mfg. Co, 414 U.S. 260 (1973), was that authorization card signatures obtained through what amounted to monetary bribes might induce others to sign by virtue of the creation of a "false portrait" of union support. Roney Plaza, 597 F.2d at 1053, citing Savair, 414 U.S. at 277. We see no basis, however, for ex- tending the holding of ,Savair to cases in which card signatures have not been obtained by threats of reprisal or force or promise of benefits. When cards have not actually been signed, the only "portrait" of union support is the card solicitor's bare claim that others have signed—a matter that, as noted (fn. 18, supra), is readily subject I o verification. Member Babson finds the facts of this case distinguishable from the facts in NLRB v. Roney Plaza Apartments, supra, and therefore finds it unnecessary to evaluate here the court's discussion in Roney Plaza of NLRB y. Sayan. Mfg Co., supra. " The Union had cards from a majority of the unit employees on April 24 even if the cards of Sandoval and Martinez are not counted solicitor or some coercion is used in soliciting the signature. With respect to the appropriateness of a bargain- ing order, a number of factors lead us to conclude that the Respondent's unfair labor practices "have the tendency to undermine majority strength and impede the election processes" 21 and, consequent- ly, require a bargaining order remedy. First, the Respondent engaged in a significant number of incidents of surveillance and interroga- tion. These incidents involved both individual em- ployees and groups of employees and were so nu- merous that their effects extended beyond the em- ployees directly involved. Second, the Respondent threatened employees with loss of work hours that, like similar threats of job loss and plant closing, "once conjured up [are] not easily interred."22 Third, the highest ranking officials at the Respond- ent's store engaged in the unlawful conduct, there- by implying the threats represented overall compa- ny policy and causing employees to regard them most seriously." Fourth, the Respondent unlawful- ly discharged employees Javier Del Castillo and Mary Guerra, the former being the leading activist in the organizing effort. Termination of the leading union adherent necessarily has a lasting effect on other employees and serves as an example of the retaliation that can result from union activity." Fi- nally, the Respondent initiated a pervasive program of grievance solicitation and wage increases. The former, effected by means of an opinion survey and related meetings, had an impact on each individual in the unit. The latter involved the granting of 210 wage increases in the unit of approximately 280 employees. The solicitation of grievances and promises to remedy them, and the grant of wage increases, have a strong coercive effect on employ- ee freedom of choice because they eliminate pri- mary reasons for organization. 25 Moreover, as the increases regularly appear in paychecks, they are a continuing reminder that "the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." 2 6 For these reasons27 we conclude that "the possi- bility of erasing the effects of past practice and of 21 NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969). 22 El Rancho Market, 235 NLRB 468, 476 (1978). 23 See Ed Chandler Ford, 254 NLRB 851 (1981). 24 See Shenanigans, 264 NLRB 908 (1982) 25 See nine°, Inc., 282 NLRB 653 (1987). 26 NLRB v. Exchange Parts Ca, 375 US. 405, 409 (1964). See also Keystone Pretzel Bakeiy, 256 NLRB 334 (1981), enfd. 696 F 2d 257 (3d Cir. 1982). 27 The passage of time since the unfair labor practices occurred, though regrettable, is not a sufficient basis for denying a bargaining order. See Groves Truck & Trailer, 281 NLRB 1194 (1986); Quality Alumi- num Products, 278 NLRB 338 (1986). 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protect- ed by a bargaining order."28 ORDER The National Labor Relations Board orders that the Respondent, Montgomery Ward & Co., Incor- porated, Pharr, Texas, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Engaging in surveillance or creating an im- pression of engaging in surveillance of employees' union or other protected activities. (b) Interrogating employees concerning their in- terest in or activities on behalf of the United Food and Commercial Workers International Union, Local Union No. 455, AFL-CIO, CLC or any other labor organization. (c) Attempting to induce employees to attend union meetings and report back on the union ac- tivities of other employees. (d) Threatening employees with retaliation, in- cluding discharge, because they are supporters of the above-named Union, or any other labor organi- zation. (e) Informing employees that if they are repre- sented by the Union, their working hours will be reduced and more onerous terms of employment will be imposed. (f) Referring to union supporters in disparaging terms. (g) Attempting to cause employees to reveal the names of other employees who actively support the Union. (h) Promising employees benefits if they abandon support for the Union. (i) Granting employees wage increases in order to undermine their support for the Union and to in- fluence the outcome of a pending representation election. (j) Soliciting grievances and complaints from em- ployees with promises to remedy them in order to undermine employee support for the Union. (k) Maintaining and discriminatorily enforcing an invalid no-solicitation rule. (1) Forcibly ejecting nonemployee union repre- sentatives from the public cafeteria located in the store, when their, conduct is consistent with the purpose for which the cafeteria was intended, and summoning police for the purpose of causing their arrest. 28 NLRB v. Gissel Packing Co., 395 US 575, 614-615 (1969). (m) Imposing more stringent discipline on em- ployees because they engage in activities in support of the Union. (n) Discharging employees because they are active in supporting the Union. (o) Refusing to recognize and bargain with United Food and Commercial Workers Internation- al Union, Local Union No. 455, AFL-CIO, CLC as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time employees employed at the Employer's retail facilities lo- cated at El Centro Mall and its warehouse fa- cility at 600 North Jackson located in Pharr, Texas, excluding all other employees, guards, watchmen, and supervisors as defined in the Act. (p) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Mary Guerra and Javier Del Castillo immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge's deci- sion. 2 9 (b) Remove from its files any reference to the unlawful discharges of Mary Guerra and Javier Del Castillo and the suspension of Carlos Molina, and notify them in writing that this has been done and that the discharges and suspension will not be used against them in any way. (c) Recognize, as of April 24, 1980, and on re- quest, bargain with United Food and Commercial Workers International Union, Local Union No. 445, AFL-CIO, CLC as the exclusive representa- tive of all the employees in the bargaining unit de- scribed above and, if an understanding is reached, embody such understanding in a signed agreement. (d) 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, 29 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.0 § 6621. Interest on amounts accrued poor to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.0 § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) MONTGOMERY WARD & CO. 131 and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facilities in Pharr, Texas, copies of the attached notice marked "Appendix." 3° Copies of the notice, on forms provided by the Regional Director for Region 23, shall be in Spanish as well as English, and after being signed by the Respond- ent'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 em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. ° (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the election in Case 23-RC-4887 be set aside and the petition in that case be dismissed. 3° 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT question you about your union membership, affiliation, sympathies, desires, activi- ties, or other rights or actions guaranteed to you by the National Labor Relations Act. WE WILL NOT engage in surveillance of your union or other protected activities, or create an im- pression that we are engaging in surveillance of your union or other protected activities. WE WILL NOT attempt to induce you to attend union meetings and report back to us regarding the union activities of other employees. WE WILL NOT threaten you with retaliation, in- cluding discharge, because you support the Union. WE WILL NOT tell you that your working hours will be reduced or that more onerous terms of em- ployment will be imposed because you are repre- sented by the Union. WE WILL NOT refer to union supporters in dis- paraging terms. WE WILL NOT attempt to cause you to reveal the names of other employees actively supporting the Union. WE WILL NOT promise you benefits to cause you to abandon support of the Union. WE WILL NOT grant new wage increases in order to undermine your support for the Union or to in- fluence your decision in determining whether you wish to be represented by the Union. WE WILL NOT Solicit your grievances and com- plaints and promise to remedy them in order to un- dermine your support for the Union. WE WILL NOT maintain or enforce an invalid rule against solicitation in the store. WE WILL NOT impose more stringent discipline on employees because they engage in activities in support of the Union. WE WILL NOT forcibly eject nonemployee union representatives from the public cafeteria located in our store when their conduct is consistent with the purpose for which the cafeteria is intended, and WE WILL NOT summon police for the purpose of caus- ing their arrest. WE WILL NOT discharge employees because they are active in supporting the Union. WE WILL NOT refuse to recognize and, on re- quest, bargain with United Food and Commercial Workers International Union, Local Union No. 455, AFL-CIO, CLC as the exclusive collective- bargaining representative of our employees in the unit set forth below. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Mary Guerra and Javier Del Castillo immediate and full reinstatement to their former jobs 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 notify Carlos Molina, Mary Guerra, and Javier Del Castillo that we have removed from 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD our files any reference to their suspension or dis- charge and that the suspension or discharge will not be used against them in any way. WE WILL recognize, effective from the date be- ginning April 24, 1980, and, on request, bargain collectively and in good faith with United Food and Commercial Workers International Union, Local Union No. 455, AFL-CIO, CLC as the ex- clusive bargaining representative of all the employ- ees in the bargaining unit described below with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such under- standing in a signed agreement. The appropriate bargaining unit is: All full-time and regular part-time employees employed at the Employer's retail facilities lo- cated at El Centro Mall and its warehouse fa- cility at 600 North Jackson located in Pharr, Texas, excluding all other employees, guards, watchmen and supervisors as defined in the Act. MONTGOMERY WARD & CO., INCOR- PORATED Rita Gillooly and Guadalupe Ruiz, Esqs., for the General Counsel. Alexandra M. Goddard and Dennis B. Clark, Esqs., of Chicago, Blinois, for the Respondent. Rick Bensik, Esq. (Bray & Watson), of Houston, Texas, for the Charging Party. DECISION STATEMENT OF THE CASE GORDON J. MyArc, Administrative Law Judge. On various charges filed by United Food and Commercial Workers International Union, Local Union No. 455, AFL-CIO, CLC (the Union), against Montgomery Ward & Co., Incorporated (the Respondent), the Regional Di- rector for Region 23 issued complaints and notices of hearing on May 22, August 15, and September 25, 1980, in Cases 23-CA-7882, 23-CA-7888, 23-CA-8019, and 23-CA-8089, respectively. 1 The complaints alleged, inter alia, that the Respondent engaged in conduct that violat- ed Section 8(a)(1), (3), and (5) of the National Labor Re- lations Act. Respondent filed answers to the various complaints in which it admitted certain allegations there- in, denied others, and specifically denied committing any unfair labor practice. On April 10 the Union filed a representation petition in Case 23-RC-4887 and pursuant to a stipulation for certification on consent election agreement, an election was conducted on June 18. The Union failed to receive a majority of the valid votes cast and filed timely objec- tions to conduct alleged to have affected the results of 1 Unless otherwise noted, all dates are in 1980. the eleetion. Because the conduct complained of by the Union was the same as, or similar to, the conduct alleged to be unfair labor practices in the previously issued com- plaints, the Regional Director issued an Order consoli- dating the entire matter for hearing. The consolidated proceeding was heard in McAllen, Texas, on various dates in October and November 1980, and January 1981. All parties were represented by coun- sel and afforded full opportunity to examine and cross- examine witnesses and to present material and relevant evidence on the issues involved. Subsequent to the con- clusion of the hearing on January 20, 1981, but prior to the filing of briefs, the Union filed additional charges against the Respondent in Cases 23-CA-8323 and 23- CA-8414. The Regional Director issued additional com- plaints alleging the Respondent violated Section 8(a)(1), (3), (4), and (5) of the Act. The General Counsel filed motions, which were granted, to reopen the record and consolidate the new cases with those previously heard. The hearing was resumed on May 12, 1981, and conclud- ed the following day. Briefs have been submitted by all parties and have been duly considered.2 On the entire record in this case, including my obser- vation of the witnesses and their demeanor while testify- ing, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, Montgomery Ward & Co., Incorporated, is an Illinois corporation engaged in the retail sale and distribution of merchandise with offices and places of business located throughout the United States. Among the Respondent's facilities is a store (Store-2129) and a warehouse located in Pharr, Texas. These are the only facilities of the Respondent involved in this proceeding. During the past 12 months, the Respondent purchased and received at its Pharr, Texas facilities products, goods, and materials valued in excess of $50,000 directly from points located outside the State of Texas. During a similar period, Respondent's operations at its Pharr, Texas facilities generated gross revenues in excess of $500,000. On the basis of the above, I find the Respondent is an employer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers International Union, Local Union No. 455, AFL-CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. 2 FolloWmg the filing of the briefs, counsel for the General Counsel filed a motion to take official notice of the Board's supplemental decision in United Dairy Farmers Cooperative Assn, 257 NLRB 772 (1981) (in which the Board unposed a bargaining order even though the union in- volved had not obtained authorization cards from a majority of the em- ployees) MONTGOMERY WARD & CO. 133 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The Union began its organizing campaign among the Respondent's employees in late January 1980. On April 10 the Union requested recognition as the representative of a majority of the Respondent's employees in an appro- priate unit for purposes of collective bargaining. (See G.C. Exh. 18.) On the same day, the Union filed a repre- sentation petition with the Board's regional office in Case 23-RC-4887. The parties executed a stipulation for certi- fication on consent election that was approved by the Regional Director. An election was held on June 18 in the following unit which was found to be appropriate: All regular full-time and regular part-time employ- ees employed at the employer's retail facilities locat- ed at El Centro Mall and its warehouse facility at 600 North Jackson located in Pharr, Texas, exclud- ing all other employees, guards, watchmen, and su- perVisors as defined in the Act. Of approximately 270 eligible voters, 121 votes were cast for the Union, 132 votes were cast against, and 8 ballots were challenged. As previously noted, the Union filed timely objections to conduct asserted to have effected the results of the election. B. Issues Involved 1. Whether Respondent, through its agents and super- visors, committed violations of Section 8(a)(1) of the Act by: (a) Unlawfully interrogating employees about their union sympathies and desires. (b) Soliciting employees to report on union activities of other employees. (c) Engaging in surveillance of employees' union ac- tivities. (d) Creating an impression of engaging in surveillance of the union activities of employees. (e) Threatening to discipline or discharge employees for engaging in activities on behalf of the Union. (f) Harassing and disciplining employees for engaging in union activities. (g) Soliciting complaints and grievances from employ- ees and promising to take steps to correct them. (h) Promising employees benefits in order to persuade them to withdraw their support from the Union. (i) Granting employees wage inceases in order to induce them to abandon their support for the Union. (j) Interfering with the statini ory right of employees to engage in self-organization by forcibly ejecting a union representative from the public cafeteria located on Re- spondent's premises and causing the arrest of the union representative by the local police. (k) Promulgating an overly broad no-solicitation rule and disparately enforcing this rule in order to thwart the organizing effort among the employees. (1) Informing employees the Respondent would not bargain with the Union if it achieved_ representative status. 2. Whether Respondent violated Section 8(a)(3) of the Act by disciplining and/or discharging employees be- cause they were supporters of the Union. 3. Whether the Respondent violated Section 8(a)(4) of the Act by terminating, employees who testified on behalf of the Union at the unfair labor practices hearing. 4. Whether Respondent was under a duty to recognize and bargain collectively with the Union as the purported exclusive representative of a majority of the employees in an appropriate unit. 5. Whether Respondent committed independent viola- tions of Section 8(a)(5) of the Act by the following con- duct: (a) Implementing a change in its payroll system with- out first notifying the Union and affording it an opportu- nity to bargain about the change. (b) Adopting a policy of utilizing part-time employees to replace full-time employees who quit, were terminat- ed, or on extended leave, without first notifying the Union and affording it an opportunity to bargain about the matter. 6. Whether the Respondent's conduct made it impossi- ble to conduct a fair election in which the employees could exercise a free and untrammeled choice in deciding whether they wished to be represented by the Union. C. The Efforts to Organize the Employees 1. The inception of the organizing campaign On January 25, Javier Del Castillo, a commission salesperson in Respondent's major appliance department, established contact with Juan Guardiola, a business rep- resentative of the Union. From their discussion, arrange- ments were made for a group of employees to meet with Guardiola at a local motel (Hilton Inn) in McAllen, Texas. 3 On January 29, Del Castillo and approximately eight other employees met with Guardiola. Among the employees accompanying Del Castillo were Alfredo (Fred) Garcia, Reynaldo (Ray) Gonzalez, and Carlos Molina. The union representative explained the benefits the employees could hope to achieve through union rep- resentation and instructed them to establish an organizing committee to solicit signatures from other employees on authorization cards. Guardiola testified he explained that by signing the cards, the employees would be authoriz- ing the Union to represent them in an effort to get better wages and benefits and to improve their working condi- tions. Cards were signed by most of those attending the meeting, and they in turn were given blank cards to so- licit signatures from their coworkers. Guardiola ex- plained that one of the first steps in attaining union rep- resentation was to get a majority of the employees signed up to be represented by the Union. This would enable the Union to petition for an election. Subsequent meetings were held at the Hilton Inn on January 30 and 31 and an informal organizing committee headed by Del Castillo was established. The group also decided to ar- range a meeting on Sunday, February 3, at the McAllen 3 McAllen is the town immediately adjacent to Pharr where Respond- ent's retail store and warehouse are located 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD High School park in order to reach the Respondent's warehouse employees. The committee members and other employees who were persuaded to join in the orga- nizing effort began to solicit signatures on authorization cards from fellow employees in Respondent's retail store and warehouse. It is apparent from the testimony that Respondent's management became aware of the solicitation of the au- thorization cards shortly after the meetings between the employees and Guardiola. Fred Hull, the store manager, testified he heard of the solicitation in the store in early February. According to Hull, several employees called him to inform him that authorization cards were being passed out to employees on the sales floor of the store. Hull weht out on the sales floor and questioned the em- ployees who called. He asked for and received a copy of an authorization card and a description of the person' who was soliciting on the sales floor. 4 Hull then went throughout the store to see if he could fmd this individ- ual. As he passed through the major appliance depart- ment, he asked salesmen Fred Garcia and Ramon Prun- eda if they had seen anyone passing out cards. Accord- ing to Hull, Pruneda asked if he meant "credit cards" and Hull explained he meant union cards. Both employ- ees denied seeing anyone passing out such cards. 2. The meeting at the high school park George Broaddus, a commission salesperson in major appliances, testified he attended the meeting at the high school park on Sunday. He stated a soccer game was in progress when he arrived with Carlos Molina and they noticed Hector Villarreal, security and safety manager for the Respondent, sitting in a parked car observing the game. Broaddus was aware Villarreal was a soccer en- thusiast. The area where the employees were gathering for the union meeting and picnic was approximately 100 yards away from the location of Villarreal's automobile. Later Villarreal left the park and drove to a nearby 7- Eleven store. Broaddus and Molina went to the store at approximately the same time and Villarreal discussed the soccer game with Broaddus. Villarreal acknowledged that he was at the park that day watching the soccer game. He also acknowledged seeing Broaddus and Molina at the park and the 7- Eleven Store. He denied having any knowledge about a union meeting taking place in the park and said that he had driven from his home, which was four or five blocks away, to watch the game The following day, according to Villarreal, Molina came up to him and asked why he was at the park. Molina also asked if Villarreal knew a union meeting was being held at that time. Villarreal denied any knowledge of the meeting. Villarreal testified he later advised Hull that he saw Broaddus and Molina at the park that Sunday and that Molina later questioned him about his presence there. Villarreal stated he spoke 4 Hull forwarded tins card to Paul Perez, who is Respondent's area manager for labor relations to Hull about the matter as a precaution in the event it should come up at a later time.5 3. The announcement by several employees of their support for the Union Del Castillo testified he drafted individual form letters, which he distributed to several employees to sign declar- ing their involvement with the Union and announcing their intention to assist in organizing the store on the Union's behalf. Copies of these letters were sent to the Respondent's management either by Del Castillo or the employees who signed them. These letters apparently were sent to the Respondent at different time intervals. The letter signed by Gilberto Morales appears to indicate his involvement as of February 11 (G.C. Exh. 22); that of Carlos Molina shows a date of February 27 (G.C. Exh. 31); Daniel Arzola indicates April 7 (G.C. Exh 72); Maria Garcia and Mary Guerra show a date of March 20 (G.C. Exhs. 89 and 106, respectively); and the letter an- nouncing Del Castillo's involvement is dated March 3 (G.C. Exh. 203). In addition to his written declaration of support for the Union, Molina testified that the first week in Febru- ary he went into Hull's office and announced he was in- volved in an attempt to get a union in the store. Molina said he initiated this conversation with Hull. According to Molina, Hull stated the Union would not benefit the employees. He said the employees would not be able to receive raises as frequently as they had been getting them in the past, because the union contract would only provide for raises once every 3 years. Molina testified that Hull also stated that if the Union represented the employees, Molina would not be able to talk with man- agement but would have to go to the Union with every complaint. Molina then asked Hull which side he would take if Molina were to come to him with a complaint against his department manager. Hull indicated that he would take the manager's side and Molina then asked, "Why have an open-door policy?" Hull, on the other hand, recalled that his conversation with Molina took place sometime in January rather that February. He stated he was discussing Molina's perform- ance appraisal with the employee. During the course of this discussion Hull pointed out Molina's deficiencies in meeting Respondent's standards for selling service con- tracts on the appliances. According to Hull, Molina then asked if there was a difference between him and his de- partment manager, which would Hull support. Hull re- plied that he would support the department manager if the matter related to store or corporate policy. 4. The meeting at the Hilton Inn on February 14 A further organizing meeting was held with the union representatives on the evening of February 14 at the Hilton Inn in McAllen. This meeting was to enable Guardiola to talk to a larger number of employees after the store closed. February 14 was a Thursday and by 5 Ray Gonzalez also testified that he observed Villarreal in his automo- bile at the high school park However, Gonzalez had no conversation with Villarreal concerning his presence there. MONTGOMERY WARD & CO. 135 custom at the Hilton it was "'ladies' night." This was a popular event, which was normally well attended, be- cause all female patrons received free drinks up to a cer- tain hour and drinks at half price thereafter. The physical layout of the Hilton was such that there were two en- trances from the parking areas. The main entrance led di- rectly into the lobby and the bank of elevators. At the second-floor level overlooking the lobby was a balcony. The union meeting was held in a suite of rooms on the second floor. The other entrance from the parking area led to a wide hallway past the restaurant and lounge area into the main lobby. Chairs and small tables were nor- mally placed in this hallway on Thursdays to accommo- date the overflow crowd from the lounge. Several employees who attended the union meeting testified that when they arrived, they saw various super- visors from Respondent's store standing around in the lobby. Ray Gonzalez testified he observed Jere Delano (manager of housewares, bedding, linen, candy and gift departments), Ralph Ruby (then store controller), Don Miller (then repair service manager), and Hector Villar- real (security manager) standing in the lobby. Gonzalez went directly to the second floor for the meeting, which he estimates lasted 3 hours. He then went to the lounge where he saw all four of these supervisors again. Em- ployee Mary Guerra stated that when she went to the Hilton that evening, she saw Delano and Miller in the lounge. Guerra did not attend the union meeting, but stayed in the lounge. There, she also saw Ruby and Vil- larreal. Fred Garcia testified that after the union meeting, he went to the lounge where he saw the four supervisors. According to Garcia, Ruby asked if the employees had a good turnout and he responded that they did. Garcia stated that Villarreal wanted to know what was dis- cussed and how many people attended the meeting. Garcia further testified that Villarreal attempted to get him to reveal the names of the employees attending and he refused to do so. 6 According to Garcia, during the conversation with Villarreal, the security manager said it was useless for the employees to try to bring the Union in the store because the people would not stand for it and the employees would not make any more money. Garcia testified he had similar discussions with Delano and Miller but did not detail these conversations. Del Castillo also testified regarding the meeting on, February 14. He stated that when he entered the Hilton, he saw all four of the supervisors there. The meeting ended at approximately 11 p.m. and Del Castillo went to the lounge with Guardiola. There, he identified and in- troduced Guardiola to Delano. The four supervisors admitted being at the Hilton on February 14, but stated they were not aware that a union meeting was scheduled to take place that evening Miller testified that he regularly attended the ladies' night fes- tivities at the Hilton. Because the lounge was crowded when he entered, he went into the hallway to look at a jewelry display and then purchased a ring. Miller stated 6 On cross-examination, Garcia admitted that, in talking with the su- pervisors in the lounge, he may have mentioned the union meeting -to them first before being questioned about it he saw a number of Respondent's employees there, in- cluding Del Castillo and Fred Garcia. According to Miller, he did not learn that a union meeting was taking place until he overheard it in conversations among the employees. Miller talked with employee Maria Garcia and her husband in the lounge. He stated that Garcia's husband mentioned his company was also having some union activity. Miller acknowledged that he also spoke to Lynda Rivera, but stated they did not discuss the union meeting. Miller admitted having a conversation with Fred Garcia. Miller stated he knew Garcia was married and asked the employee what he was doing at the Hilton. Miller said he asked this question because he felt Garcia's wife would shoot Garcia if she caught him there. Delano testified he arrived at the Hilton late on Febru- ary 14, because he had to lock up the store. He stated that when he walked in, Lynda Rivera, Molina, and some other employees gave a loud cheer from the balco- ny. He later saw Fred Garcia in the lounge and Garcia said that he could get fired for this. Delano testified that he did not know what Garcia meant by the statement and the asserted he was not aware that a union meeting was taking place at the hotel. Ruby testified there were a number of employees at the Hilton when he arrived between 7:30 and 8 p.m. He came to the Hilton with Villarreal. He stated when he walked in someone said, "Oh, shit, here's Ruby." Then someone asked him not to mention that the employees were there and he requested that they not mention his presence. Ruby and Villarreal left to go to another club at a different hotel and then subsequently returned to the Hilton. In the lounge Ruby spoke with Fred Garcia and Del Castillo. He stated the employees again asked that he not mention their presence at the Hilton and he made the same request of them. Ruby testified he made this re- quest because he was married and did not want anyone to know he was out looking for girls. Ruby acknowl- edged that he spoke with Delano in the lounge and they wondered why so many of the Respondent's employees were at the Hilton that evening. Ruby also stated that the Union "may have been mentioned to some extent," but testified that he did not learn of the union meeting until several days later from Villarreal. Villarreal testified that he frequently went to the Hilton on ladies' night. He stated that when he and Ruby arrived, Delano and Miller were already at the club. He saw a number of employees in the lounge and talked with several. He stated .that he had a conversation with Fred Garcia in which Garcia told him the employees were having a meeting at the Hilton and it was well at- tended. According to Villarreal, Garcia indicated he would bet the Union was going to come into Respond- ent's store because of the employee interest shown at the meeting. Villarreal testified that he was noncommittal in response to Garcia's statements. He also denied having any knowledge of the union meeting until his conversa- tion with Garcia. Fred Garcia testified that when he arrived home after leaving the Hilton, his wife told him Temo Gonzalez, his department manager at the store, called at approximately 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10:30 that evening. On being informed that Garcia was not at home, Gonzalez wanted to know if he was attend- ing the union meeting. The following day, Garcia con- fronted Gonzalez at the store about the telephone call. Garcia wanted to know why Gonzalez called and dis- turbed his wife that late in the evening. Gonzalez replied that he was setting up a work schedule for the depart- ment and needed information from the employee. Garcia then warned Gonzalez not tocall his home again in the late evening. After his conversation with Gonzalez, Garcia went to Hull to complain about the telephone call from Gonzalez. Hull promised to look into the matter. When testifying about the telephone conversation with Garcia's wife, Gonzalez recalled that it occurred in March. He stated he was preparing a monthly work schedule for the department and needed information from Garcia. When told that Garcia was not home, Gon- zalez testified he asked where he might reach the em- ployee. Garcia's wife indicated she did not know where he could be located. During the confrontation with Garcia the next day, according to Gonzalez, the employ- ee said Gonzalez and Hull would be sorry the telephone incident occurred. Hull was uncertain whether it was in February or March that Garcia complained to him about Gonzalez calling his home and upsetting his wife. Hull testified that when he questioned Gonzalez about the matter and was told the department manager was attempting to get information to complete his monthly work schedule, he considered the telephone call justified and dropped the matter. 5. The meeting at the home of employees Caro and Guerra The meeting of the union supporters was scheduled on March 25 at an apartment shared by employees Amelia Caro and Mary Guerra. Apparently in preparation for the meeting, Guerra had purchased a supply of Cokes in the mall during the day. Caro, who worked in home ac- cessories, testified that Crescencio (Chris) Rocha, manag- er of the furniture department, came over to her and asked if he could attend the meeting being held at the apartment. Caro replied that it was up to him Caro stated that shortly before closing time, Rocha called her on the store telephone and asked that she not mention his request because he might get into trouble. Caro also tes- tified that sometime between 8 and 8:30 that evening Robert Gore, the operating manager of Respondent's fa- cilities, came over to her department. According to Caro, Gore wanted to know why so many Cokes had been purchased, and asked if the employees were having a meeting or a party that evening at Caro's apartment. Guerra, who worked in the furniture department, testi- fied that Rocha came up to her on March 25 and said he heard she was going to have a party. He asked if he could come. Guerra told him he could not attend. Ac- cording to Guerra, Caro came into the department and Rocha repeated his request to Caro. He was again told that he could not attend. J. B. Casso, who also worked in the furniture department, testified that he overheard Rocha ask Guerra if he could attend the meeting at her apartment. According to Casso, after being rebuffed by Guerra, Rocha came to him and asked if he could attend the meeting. Casso stated that Rocha wanted him to get the names of the employees who were attending the meeting and report back to him. Casso refused to do this. Gore testified he also heard a party was being given that evening by Caro and Guerra. He stated he ap- proached Guerra and asked if he was invited and Caro indicated yes. Gore testified he declined to go because he had to work late that evening. On cross-examination Gore first indicated that Caro invited him to the party, but he subsequently changed his testimony to indicate that he may have asked Caro if there was to be a party. According to Gore, he had been to several parties given by employees in the past. At the time of the meeting, Rocha parked his automo- bile in front of Guerra's apartment and remained in it. When his presence became known to the employees, Garcia, along with Molina and Guardiola, came down to speak to him. Garcia testified they asked Rocha why he was there and Rocha replied that he wanted to attend the meeting. Garcia told Rocha he could not unless he signed an authorization card for the Union. According to Garcia, Rocha stated he wanted to attend the meeting first and hear what was going to be discussed and see who was there. Guardiola told Rocha he could not attend the meeting. Guardiola testified Rocha remained in his automobile for approximately 20 minutes and left. Guerra left the meeting to go to a nearby convenience store and observed Rocha in his automobile talking to Garcia and the other employees. Guerra stated that while she was at the store Rocha came in and said to her, "Some friend you are. I am not going to speak to you any more." Guerra replied that Rocha had been told not to come to the meeting. Rocha gave a different version of these events regard- ing the meeting at the home of Caro and Guerra. Rocha testified that Guerra invited him to attend a party at her apartment that evening and he asked if he needed to bring anything. Guerra assured him that everything had been taken care of and she gave him instructions how to reach her home. Rocha testified that he did not have any discussion with Caro about attending the party. Accord- ing to Rocha, when he arrived in the parking lot at the apartment, Garcia came up and told him that as a friend, he would advise him to leave because a union meeting was going on. He stated Molina and a union representa- tive then came up to the automobile and asked if he wanted to sign a union card. Rocha replied that he would sign after the meeting. Rocha then left and went to a nearby convenience store where he met Guerra. Ac- cording to Rocha, he told the employees, "Thanks" and she laughed. 6. The ejection of the union representative from the Respondent's Buffeteria Lois Johnson, an international representative for the Union, was sent from Houston in mid-March to direct the organizing campaign. Johnson met with the employ- ee organizing committee on March 18. Because the com- mittee initially had been structured on an informal basis, Johnson established a formal committee consisting of MONTGOMERY WARD & CO. 137 nine employees. Del Castillo and Molina were key mem- bers of this group. Johnson testified she advised the com- mittee members that by signing the authorization cards, the employees would be authorizing the Union to repre- sent them. She told them the Union would seek to get a card check when a majority of the employees signed cards and if the Respondent refused to recognize the Union, a petition for an election would be filed with the Board. On March 19 Johnson visited the Respondent's store. She met with Del Castillo and Molina in an aisle on the sales floor and sought to find the store manager. She was directed to Hull who was sitting with Paul Perez in the Buffeteria. 7 Johnson identified herself and stated she wanted to talk to the employees on their breaks. Accord- ing to Johnson, Hull gave her permission to do so, pro- vided she did not interrupt the employees on the sales floor. Johnson then went into the store and spoke to a number of employees, advising them that she would be available in the Buffeteria when they took their breaks. Johnson returned to the Buffeteria where she purchased some food and sat down at an empty table. She was joined at various times by employees and discussed the Union with them. While she was sitting at the table talk- ing with several employees, Villarreal came up and iden- tified himself as the manager of store security. According to Johnson, Villarreal asked her to leave the premises and she refused. Johnson testified she informed Villarreal she had permission from Hull to be there. Johnson stated that Villarreal then called the local police and two offi- cers subsequently responded. They came over to John- son's table and attempted to persuade her to leave. John- son protested that she was not violating any law. John- son testified the police officers went over to speak to Villarreal and later sat down at a table in the Buffeteria observing her. Villarreal then came back to her table and accused her of soliciting on the sales floor. According to Johnson, at no time during her conversation with Villar- real did he advise her that the store manager had re- voked her invitation to remain on the premises. Villar- real called another security officer (Regelio Alaniz) and each grabbed Johnson by an arm and dragged her out of the door leading from the Buffeteria to the sidewalk. Johnson became angry because she felt she had been handled offensively. According to Johnson, she received bruises on her breasts, arms, and shoulder. She slapped Villarreal and one of the local police officers came up, forced her arm behind her back, and placed her under arrest.8 The police officer told Johnson that if she wanted to act like a man, he would treat her like a man. Hull testified that he first met Johnson in the Buffe- teria. He stated he and Paul Perez were sitting in the Buffeteria and Johnson came up and introduced herself. According to Hull, Johnson stated she would be in the store for the next few days and wanted to talk to em- ployees during their breaks in the Buffeteria about the The Buffeteria is a cafeteria operated by the Respondent. It is for general use by the public and for Respondent's employees during breaks and mealtimes 8 The police officer (Herrera) signed a complaint charging Johnson with assault The case subsequently went to trial before a jury and John- son was found not guilty Union. Paul Perez told Johnson she could not solicit the employees in the store and if she did, her privilege as an invitee would be revoked. Hull warned Johnson that she was in Texas and could be subject to arrest for trespass if she violated the store rules. Hull further testified he was advised later by several employees on the sales floor that Johnson was in the sales area inviting employees to meet with her in the Buffeteria to discuss the Union. Hull then called Villar- real and told him Johnson's status as an invitee was re- voked. He instructed Villarreal to so inform Johnson and to remove her from the premises. Villarreal reported back that Johnson was eating in the Buffeteria and re- fused to leave. Hull told Villarreal to remove Johnson after she finished eating and to place a call to the Pharr police department. Hull then decided he would call the police department himself. He stated he placed a call to the police chief and advised him of the situation at the store. He requested that the chief send someone with a "cool head" because Johnson was very abrasive. Hull stated he had nothing further to do with the matter and left it up to Villarreal and the local police. Villarreal testified that on March 19, Hull advised him that if anyone were in the store on the sales floor inter- fering with the store operations or the sales employees while they were working, Hull would call on Villarreal to take appropriate action. Villarreal stated he was subse- quently informed that there was a female in the store so- liciting employees and asking them to meet with her in the Buffeteria. According to Villarreal, he received sev- eral calls to this effect from various department heads. Villarreal went to the Buffeteria and approached the table where Johnson was sitting. He stated Johnson ini- tially invited him to sit down but later asked him to leave the table. Villarreal told Johnson she was the one who should leave because she had been contacting em- ployees on the sales floor. Villarreal stated he informed Johnson that the store manager did not want her in the store as a customer any more and she was no longer in- vited to remain there. Johnson refused to leave and Vil- larreal threatened to call the local police. He stated Johnson continued to sit at the table and refused to leave. According to Villarreal, he then went to Hull and advised him that Johnson refused to leave the premises. Hull and Paul Perez then instructed Villarreal to remove Johnson from the store. Before doing so, Villarreal called Respondent's regional director of security in Dallas and appraised him of the situation. He was in- structed by the regional director to go ahead and remove Johnson from the store. Before returning to the Buffeteria, Villarreal stated he called the local police and asked for assistance. He then went to the Buffeteria and repeated his request to John- son to leave the premises. Johnson again refused and, in the interim, Carlos Molina came up to the table and sat down with Johnson. Villarreal stated that local police of- ficers came in and talked with Johnson. They asked her to leave and she refused to do so unless she was being placed under arrest. Villarreal stated that Officer Berrera , called his department and spoke to one of his superiors. Berrera was informed that he could not arrest Johnson 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because he had not observed her doing anything wrong in a public place. Villarreal then informed the police offi- cers that he was going to physically remove Johnson. He went over to Johnson's table and told her that if she did not leave voluntarily he would remove her. Johnson again refused to leave and Villarreal called his assistant, Alaniz, over to help him remove Johnson. Villarreal ac- knowledged that each grabbed an arm and pulled John- son out of her chair and dragged her out of the Buffe- teria door to the sidewalk. He stated that once outside, Johnson attempted to go around him and return to the Buffeteria, but he blocked her way. Villarreal testified that Johnson then became angry and slapped him three times in the face. It was at this point, according to Vil- larreal, that the police officers came up and placed John- son under arrest. Johnson's ejection from the Buffeteria was witnessed by a number of the employees who were in the Buffe- teria on their breaks. Frances Cantu Villanueva testified she was working as a cashier in the Buffeteria at the time. She stated she overheard a conversation between Villarreal and Officer Berrera while Johnson was sitting at the table. According to her testimony, Villarreal asked Berrera if he could get Johnson off the premises and was told that it could not be done because Johnson was in a public place and not violating any law. Villanueva testi- fied the police officer stated that if Villarreal could get Johnson outside, the police could arrest her. It was then, according to Villanueva, that Villarreal and Alaniz dragged Johnson from the Buffeteria. D. The Employee Opinion Survey Conducted by the Respondent The testimony reveals an opinion survey was conduct- ed among Respondent's employees sometime in March. Lynda Rivera testified employees were directed to go into the training room in small groups and were given questionnaires to fill out. (See G.C. Exh. 11.) According to Rivera, the person conducting the survey told the em- ployees the purpose was to identify problems in the store. Gloria Diaz, a salesperson in the sewing depart- ment, testified she was given a copy of the survey ques- tionnaire by Edward Moreno, her department manager. She stated she was told to fill it out in the department and return it to Moreno. Molina testified that the em- ployees in his department were called into the training room in groups by Judy Padgett, the personnel manager of the store. There the employees were given copies of the questionnaire by a Ward's employee from another area. According to Molina, this person stated it was company practice to find out how the employees felt about the Company's policies and what could be done to improve the employees' conditions. All of the employees testified this was the first time such a survey had been conducted at Respondent's store.9 9 Hull testified he was advised by the regional personnel director that an opinion survey would be conducted at his store in March. Although he had no role in formulating the decision to conduct the survey, Hull admitted that the regional office staff was aware of the organizing cant- paig,n prior to the announcement of the decision. Michael Waldron, a former employee in the Respond- ent's regional office in Dallas, testified he was instructed by Robert Trebesch, the regional personnel director, to conduct an attitude survey among the employees at the McAllen store. 1° According to Waldron, similar surveys had been conducted from time to time at other stores of the Respondent. He acknowledged, however, that this was the first time such a survey had been conducted at the McAllen store. Waldron stated he was not told that an organizing campaign was going on and did not learn this until he arrived at the store. According to Waldron, the survey was conducted in the training room of the store and employees attended in small groups. Although attendance was not mandatory, he stated that approxi- mately 85 to 90 percent of the store personnel participat- ed. Waldron indicated it was Ward's policy not to tell the person conducting such a survey of its intended pur- pose; this was to prevent any possible bias showing up in the results. When the employees came into the training room, Waldron read the instructions to them and used an inter- preter for the non-English-speaking employees. The em- ployees were told not to sign the questionnaires and once they were completed, they were placed in a box by the participants. Waldron took the completed questionnaires back to Dallas, where he collated the information and destroyed the actual questionnaires He turned over the results of the survey to Dennis McDonald, assistant re- gional personnel director. McDonald came to the McAllen store in early April to discuss the results of the survey with the employees. The same procedure was followed in that the employees were brought into the training room in small groups. McDonald used transparencies to flash the results of the survey on a screen as he explained them to the employ- ees. Gloria Diaz recalled McDonald stated the survey re- vealed problems that would be straightened out and im- proved. Caro testified McDonald told the employees that any problems they had could be discussed openly. She then questioned why such a survey had not been con- ducted in the past. According to Caro, McDonald re- plied there had been no previous complaints, but Hull wanted him to address these problems now. Rivera stated McDonald identified the reprimanding of employ- ees in front of customers as one of the areas of concern. He stated management was going to correct this right away. He also said that staff and management recognized there were other areas of concern and they would take steps to correct them. Molina testified that when McDonald showed the employees the statistical results of the survey, he told them what measures Respondent planned to take to remedy their complaints. Molina asked McDonald whether the survey had been conduct- ed because of the union campaign and was told that this was not the reason. Molina stated he questioned certain practices regarding the ringing up of sales on "bottom- ii the Respondent's store and warehouse Involved m this proceeding are located in Pharr, all the witnesses referred to the facilities as the "McAllen store." k N. I MONTGOMERY WARD & CO. 139 of-the-line" merchandise and McDonald promised to look into the matter." Regarding the announcement of the results of the survey, McDonald testified that he spoke with the em- ployees in the training room and used a management- trainee who was fluent in Spanish to communicate with the non-English-speaking employees. Although McDon- ald admitted the survey was conducted because there was an employee discipline and morale problem at the store, he denied „ being aware of union activities taking place at the store until he was informed of this fact by Waldron, when the latter returned to Dallas after con- ducting the survey. McDonald testified he identified gen- eral areas of concern revealed by the survey, but stated he offered no solutions to the employees. He informed the employees that the results of the survey would be turned over to the store manager, who would contact the employees about resolving identified areas of con- cern. He also testified that he assured the employees he would discuss the problems with the store manager and work toward a solution. McDonald stated the survey re- vealed that employees complained about their wages and failure to receive wage increases. He stated he spoke with Padgett about this matter and suggested she inform the employees of Respondent's wage plan. Another area of concern revealed by the survey related to employee appraisals and the procedures followed in the McAllen store. McDonald testified he reminded the store manager of company policy and procedures regarding appraisals. Molina testified that after McDonald announced the results of the survey to his group, the two of them had lunch in the mall. Molina discussed the complaints he had against Temo Gonzalez with McDonald. According to Molina, McDonald said he knew there was trouble in the store but felt the reasons were deeper. He stated the purpose of his visit to the store was to investigate Hull and Gonzalez because in his view, the problems started there. Molina further testified that he discussed his recent 3-day suspension with McDonald and asked to receive backpay for the time he was suspended." According to Molina, McDonald replied he did not know about giving Molina backpay because it . would look as if McDonald were trying to buy the employee's support. McDonald promised, however, to discuss Molina's suspension and request for backpay with Hull and to get back to the em- ployee. Molina further testified that McDonald said he had reviewed , the personnel files of Molina and Fred Garcia and had removed any items he felt were unfair to the employees, including Molina's suspension notice. Molina stated McDonald asked what could be done to straighten out things without the Union. In response to this, Molina stated it was too late because he only had McDonald's and Hull's word that he would not be fired in any event for his union activities. Molina stated he re- ceived a call from McDonald the following week in which McDonald asked to meet with him and Temo 11 It was apparently the practice at Respondent's stores for the depart- ment managers to receive the commission from the sale of bottom-of-the- line merchandise rather than the salesperson who sold the item 12 Molina's suspension is treated in detail in subsequent sections of this decision Gonzalez to attempt to resolve their problems without the Union. Molina declined this invitation. McDonald testified that after his session with the em- ployees concerning the results of this survey, Garcia and Molina =lie up and asked if they could talk with him privately." According to McDonald, Molina met him for lunch in the mall. Molina complained about Temo Gonzalez and stated he felt the department manager was building a case in order to discharge him. McDonald said he offered to mediate, but Molina had mixed feelings about meeting with Gonzalez. McDonald acknowledged that Molina disclosed he was involved in union activity and felt that derogatory reports about which he was un- aware were being placed in his file. McDonald stated he checked MolinA's personnel file and subsequently told the employee that all of the matters contained in the file Were matters the employee knew about. McDonald denied removing any material from the files of either Molina or Garcia. McDonald confirmed that Molina de- clined his request to meet with Temo Gonzalez. " McDonald testified that Fred Garcia came to his hotel lounge because the employees did not want to meet with him at the store. As in the case of Molina, Garcia ex- pressed his concerns about Temo Gonzalez and felt that a case was being built against him by Gonzalez. Garcia indicated that Molina was experiencing the same prob- kilns with Gonzalez. McDonald offered to mediate be- tween Gonzalez and the two employees in an effort to resolve their differences. He stated Garcia agreed to this approach, but indicated he could not speak for Molina. McDonald testified that' like Molina, Garcia feared there was some damaging information in his personnel file about which he had no knowledge. McDonald agreed to inspect the file and get back to Garcia. According to McDonald, later that same week he spoke with Garcia and said there was nothing in the file the employee was not already aware of. E. The Change in the Manner in Which Paychecks , Were Distributed to Employees - One of the complaints the employees revealed by the survey was that their weekly paychecks were simply handed out to them by the department heads. Thus, it was possible for coworkers to ascertain how much an employee was receiving in 'wages. Shortly after McDon- ald met with the employees to discuss the results of the survey, all paychecks were given to the employees in en- velopes. These pay envelopes were also used to distrib- ute communications from the store manager urging the employees to remain loyal to the Respondent and to reject the overtures of the Union. (See G.C. Exhs. 3 through 9.) Management also utilized the pay envelopes in early May to distribute notification- of increases in the benefits contained in Respondent's health care plan. (See C.P. Exh. 1.) Testifying concerning the change in the manner in which the paychecks were distributed to the employees, , - i3 Although Garcia was a witness in these proceedings and testified at length on many matters, he did not testify regarding any conversation with McDonald 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Padgett stated she initiated the change after a conversa- tion with the store manager in March. Although Padgett had been the personnel manager since 1976 and Hull had been the store manager since 1977, Padgett stated it was not until March 1980 that Hull brought it to her atten- tion that it was a districtwide policy of the Company to issue employees' paychecks in envelopes. Once this was brought to her attention, according to Padgett, she began to implement this policy. Hull corroborated Padgett's testimony that he ordered the employees' paychecks to be placed in envelopes before being distributed to them. Hull stated it was brought to his attention that this practice had not been followed at the store. He did not indicate, howeverj when it was brought to his attention or by whom. Hull said that he was only interested in remedying the failure to follow the correct practice and was not concerned about, how long it had been going on. F. The Employees Antiunion Committee Sometime in late March or early April, several em- ployees decided to organize a group to oppose the union organizing effort at the store. Most of the employees forming the antiunion committee worked in the adminis- trative office of the store. Delia Flores was a personnel clerk responsible to Padgett, Ernestina Hernandez was a detail clerk working for Hull and others on the store's management staff," and Jackie Wisdom was a clerk in the vendor's chargeback unit under the supervision of the store controller. These three employees along with employees Kay Gonzalez and Silvia Perez decided to form a group and solicit support among the employees to defeat the union organizing effort. Flores testified the an- tiunion group met at the homes of its members and de- cided to distribute literature to employees in the parking lot. The antiunion committee members also solicited sig- natures on petitions from employees opposing the Union. Because some employees in the nonselling areas of the store were wearing T-shirts urging support for the Union, the antiunion committee also purchased T-shirts and badges to be worn by antiunion employees who did not work in the sales area of the store.16 Hull testified he was approached by the initial organiz- ers of the antiunion committee and asked if it were per- missible for them to engage in activities opposing the Union. Hull advised the employees they were free to do so, provided they made certain they obeyed the rules and regulations of the store. Hull denied the Respondent provided the antiunion committee members with any money or supplies or the use of company facilities to prepare their material for distribution to the employees. Flores and Wisdom testified that members of the an- tiunion committee solicited signatures from employees in Respondent's parking lot on petitions opposing the unionization of the employees. They also distributed lit- erature to employees in the parking lot from time to 14 The duties of Flores and Hernandez are detailed m the section in- volving unit composition, infra 15 Padgett testified the Respondent's dress code forbade the wearing of T-shirts in the store. However, according to Padgett, this rule was re- laxed in order to allow both union and antiunion supporters working in nonselling areas to wear T-shirts expressing their preference time, according to Flores and Wisdom, seeking to rebut the arguments advanced by the union supporters and ex- horting the employees to reject the Union. (See C.P. Exhs. 2 through 4.) G. The No-Solicitation Rule and its Enforcement Hull confirmed that after March 19 (the date of the in- cident in the Buffeteria with Johnson), he instructed Vil- larreal to post signs on the doors of the store prohibiting solicitation in the store or on the sidewalk around the store. Hull stated that although these signs were not posted until March, there had been a no-solicitation policy in effect at the store since it first opened in 1971. The posted signs read as follows: NO SOLICITING ALLOWED IN THE STORE OR ON THE SIDEWALK Store Manager Several employees testified they were warned by members of management about soliciting other employ- ees on behalf of the Union in the store. Ray Gonzalez testified that in February he was paged by Padgett and called into her office. Padgett told Gonzalez she had been informed by another employee that Gonzalez was passing out union cards in the store. Gonzalez did not re- spond to Padgett and was told that he could not pass out union cards on company hours. Padgett admitted having this conversation with Gonzalez about soliciting in the store. According to Padgett, she had been informed by Wilson that Gonzalez was passing out union cards and soliciting signatures from employees in the receiving area. Padgett also spoke with employee Lynda Rivera about passing out authorization cards in the store, Rivera re- called that this conversation with Padgett took place sometime in early February. According to Rivera, Pad- gett stated that Rivera had been observed passing out cards on company time. Padgett told the employee that if she did it again, disciplinary action would have to be taken. At the hearing, Rivera testified that while she said nothing in response to Padgett's reprimand, she had been passing out union cards while working. Rivera stated that after the reprimand, she did not attempt to solicit signatures from employees during her working time. Padgett confirmed that this conversation took place sometime during the second week of February. Accord- ing to Padgett, she told Rivera it was against company policy to solicit during working time She testified that Rivera asked if she could solicit while in the Buffeteria and the employee was told this was permissible. Fred Garcia testified he was called into Hull's office and warned about soliciting on behalf of the Union in the store. Garcia stated that Hull said it was not right to so- licit in the store. According to Garcia's testimony, this conversation took place in early January prior to the time he signed an authorization card for the Union.16 16 The record reveals that Garcia signed a card while attending a meeting at the Hilton Inn on January 29 MONTGOMERY WARD & CO 141 Garcia further testified that during this conversation, Hull stated he did not want the Union to represent the employees and if it did, his door would not be open to the employees and he would not be able to help them as he had in the past. The conversation ended, according to Garcia, by Hull asking if the employee wanted to put his job in jeopardy because of the Union. Other employees testified the no-solicitation rule was not enforced against all types of solicitation'in the store, nor was it enforced against the activities of the antiunion committee. Rivera stated she saw Carlos Sandoval, the manager of the receiving department, solicit employees on several occasions to participate in "betting pots."17 Yolanda Alvarado testified that during the time of the union campaign, she observed a local politician, who was running for office, come into the store and distribute lit- erature to employees on the sales floor. According to Al- varado, she saw this particular politician talking to Hull while he was soliciting votes in the store. Maria Garcia testified that Sandoval frequently went through the vari- ous departments and solicited employees to purchase chances in sports pools. She stated she also knew of a number of employees who sold Avon products inside the store during working hours to other employees. Juan Gonzalez Jr. testified he had observed solicitations in the store by employees and nonemployees for raffle tickets, school and band candy sales, and for football and base- ball pots. Caro testified that she observed Delia Flores passing out antiunion literature in the Buffeteria on June 17, the day before the election. According to Caro, Gore and Delano were in the Buffeteria at the time and did not at- tempt to stop Flores. Alvarado also testified that she ob- served members of the antiunion committee passing out literature on the day before the election. Alvarado stated that Hull, Gore, Padgett, and other department managers were in the Buffeteria when this occurred, but did noth- ing to prevent the distribution of this literature by the members of the antiunion committee. Flores and Wisdom denied passing out antiunion litera- ture in the store. They stated the antiunion committee members confined their activities to the parking lot out- side the store. Flores stated that on June 17, she had a packet of leaflets in her hand while she was at the rail in the Buffeteria. She was preparing to go outside to dis- tribute them. At this point, according to Flores, a person by the name of Harrington came up and asked for a leaf- let. Flores replied that she could not give her one in the store, but they were being passed out in the parking lot. At this point, according to Flores, Harrington grabbed a leaflet from her and left with it. Molina then came up and accused Flores of passing out literature in the store. H. The Various Statements Alleged to Have Been Made to Employees by Respondent's Staff and Supervisors 1. Gilberto Morales—Bob Gore: Morales testified that approximately 3 weeks prior to the election on June 18, he was approached by Gore. According to Morales, Gore stated he did not think the employee would have "7 This was the term used to describe sports betting pools. signed the "union letter." At the time, according to Mo- rales, he had no idea about what letter Gore was refer- ring to." Morales stated Gore asked what the employee thought the Union would give him Morales responded that the Company had not given him anything and had treated him like dirt. Gore denied asking Morales any questions about his union sympathy or activities. Gore also denied speaking to the employee about being signatory to a letter indicat- ing his support for the Union. 2. Gilberto Morales—Frank Perez: Morales stated he also had a conversation with Frank Perez approximately a week before the election. According to Morales, Perez came into the furniture department and asked what he thought about the Union. Morales replied that the Union would not have come into the store if Hull had treated the employees differently. Perez testified that as sales promotion manager, he had many occasions to go into the furniture department where Morales worked. Perez indicated this was a part of his duties in order to check up on the furniture dis- plays and the sales markdowns. Perez denied ever dis- cussing the Union with Morales during his visits to the furniture department. 3. Juan Gonzalez Jr.—David Gonzales: Juan Gonzalez worked as a salesman in the TV stereo department. He stated that on one occasion after the organizing cam- paign commenced, his supervisor, David Gonzales, called all of the employees in the department over to his desk and asked if they knew anything about the Union. Juan Gonzalez further testified that David Gonzales told the employees the Union would not help the commission sales people, but would only benefit the hourly paid em- ployees. Juan Gonzalez replied that he wanted to hear both sides before he made up his mind , David Gonzales admitted talking to the employees in his department on one occasion. He stated he noticed one employee (Sandoval) was upset and when Gonzales asked why, the employee said he was tired of being har- assed by Juan Gonzalez and Ramiro Juarez because he was wearing a "Vote No" button. Gonzales asked the employee if he could be of assistance and Sandoval then asked about the Union getting benefits for employees. According to Gonzales, he told Sandoval he could not state either way whether this would be possible. Gon- zales testified that during the conversation, Juan Gonza- lez and Juarez came over and spoke to Sandoval. They asserted that with union representation, the employees would get more paid holidays, receive extra fringe bene- fits, and would get rid of some of the paper work re- quired of the commission sales people. Gonzales denied that he questioned the employees in his department about the Union or that he initiated any conversations with them about the Union. 4. Arturo Tristan—Frank Perez: Tristan was an employ- ee who worked in the display department under the su- pervision of Frank Perez. He testified that 2 days before the election, he had a conversation with Perez at the 18 In February, Morales signed the form letter sent to the Respondent in which he declared his support for the Union and his mtention to help organize the store 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Eagle's Lodge in Pharr. Tristan and Perez had been friends for 6 or 7 years. He stated they went to the Eagle's Lodge to have a beer after work. According to Tristan, Perez brought up the subject of the Union while they were drinking. Perez asked Tristan what he thought about the Union. Tristan responded that he thought the Union was all right because he had been involved with a union when he lived in Chicago. Perez then stated he thought Tristan was smarter than that and that the "Valley" was not ready for that sort of thing (unions representing workers). 19 Tristan further testified that Perez began talking about the number of pay increases the employees had recently received, and Tristan aske why he had not been offered a raise. Perez said Tristan was too involved in the Union to be considered for a raise. According to Tristan, Perez stated Tristan could be a "hero" if he joined sides with the Respondent, be- cause he had influence with the other employees. Tristan responded that if he received a raise, he could be on management's side. He testified that Perez then said he could not promise anything, but if Tristan would support management, he would speak to Hull and see what he could do. Tristan further testified that Perez indicated it would be good if he could go to Hull, and tell him that Tristan was supporting management. He advised Tristan that by doing this, he could be on the "winning side." Perez testified that his conversation with Tristan took place on June 12 rather than June 16. He was certain of this date because his wife's birthday was on June 16 and he took her out to dinner after work. According to Perez, Tristan invited him to go to the Eagle's Lodge for a drink after work. Because they had known each other since childhood, Tristan talked about personal problems and his need for a pay raise. Perez stated he indicated that Tristan's performance appraisal was due in October and the employees' work performance warranted a raise at that time. According to Perez, Tristan said he thought the Union would make it easier for employees to receive raises and Perez replied, "The best way to get a raise is through individual performance." He stated Tristan then confided that he had designed the logo for the prounion T-shirts. He further testified Tristan stated Tristan would wind up in an alley if he tried to abandon the Union. It was at this point, according to Perez, that he asked the employee if he were trying to be a hero. Perez denied telling Tristan that he should go to see Hull and an- nounce his support for management. Perez stated that subsequent to this conversation, Tristan came to his office and asked whether he would get a pay raise. Ac- cording to Perez, he told Tristan that if his work per- formance continued the way it was going, he would re- ceive a raise in October.2° 5. Molina—Hull: Molina testified that sometime during mid- or late February, Hull came up to him and spoke about soliciting signatures on authorization cards in the store. According to Molina, Hull stated that if he ever saw the employee soliciting in the store, he could walk 19 By "Valley," Perez was referring to the locale that was situated in the Rio Grande Valley. 20 Tristan denied Perez mentioned that his performance rating was due in October, and he would then get a pay raise He also denied telling Perez that if he abandoned the Union, he would wind up in an alley out of the door. Molina denied that he was engaging in such activity in the store, and Hull repeated that if he found Molina talking to other employees about the Union, he was to walk out of the door. Molina stated that Temo Gonzalez, his department manager, was present at the time and after Hull left, Gonzalez said in Spanish, "Why don't you get going?" Molina also testified he came to the store on his day off, sometime in early March. After a brief stop in the Buffeteria, he went on the sales floor to match a particu- lar type of yarn. Hull came over and asked if he could be of assistance. After searching the available supply, Hull was unable to match the sample and suggested Molina go to another store. Molina testified that he left through the candy department and HUH followed him until he exited the store. The following Monday, when Molina returned to work, he spoke to Hull. He told Hull it was not necessary to follow him throughout the store and that he was not soliciting signatures on authorization cards. Molina also stated he had already signed up to 60 employees and did not have to risk his job soliciting (in the store). He further indicated he was not the person "who started this union bit." According to Molina, Hull then put an arm around his shoulder and said, "Well Carlos, give me a few names." Molina declined and Hull walked away. Hull testified that he spoke to Molina sometime in April in the major appliance department about soliciting for the Union on the sales floor. Bull stated he told Molina that such soliciting was against Respondent's policy. He stated he spoke to Molina on this occasion be- cause he observed the employee talking to other sales personnel in the store in the TV and stereo department. Hull said that when he walked up, all the employees in that department were gathered around Molina but then disbursed. Hull also admitted seeing Molina in the store looking for yarn. He stated he told Molina the store no longer carried that type yarn and suggested the employ- ee try Woolco. Hull denied following Molina through the store until he left. 6. Molina—Temo Gonzalez: Molina testified that prior to becoming involved in activity on behalf of the Union his relationship with Temo Gonzalez was close and they often socialized after work. He testified this changed after he announced his support for the Union and Gonza- lez would not talk to him any more. He stated the store had a sidewalk sale on a Saturday on February 23. During the sale, Gonzalez came up to him and, in the presence of Gore, referred to Molina as an "SOB." He stated that Gonzalez also referred to him as Caesar Chavez and Tony Orendine in front of other employees during the sale.21 7. Molina—Gore: Molina stated that Gore would fre- quently observe him sitting with Fred Garcia and Del Castillo in the Buffeteria. Whenever Gore observed the three employees together, Molina stated Gore would refer to them openly as "the Mafia." 21 Chavez is the national leader in the Farmworkers Union and Oren- dine is active in the union movement in Texas. MONTGOMERY WARD & CO. 143 Molina also testified that sometime during February, he had a conversation with Gore in the latter's office. According to Molina, Gore brought up the subject of the Union and Molina stated the employees had a chance to make more money, if they were represented by the Union. Gore disputed this and said if the Union came in, the store would have to cut back on the number of hours the employees worked in order to make a profit. Gore testified there was a standing joke between Molina and him He stated he used to call Molina part of the "Mexican Mafia" and Molina would retort by calling him "El Goro" or "El Gorito." In addition, Gore testi- fied that Molina came into his office at the end of Febru- ary and initiated a conversation about the Union. Ac- cording to Gore, Molina wanted to assure him that Gore had nothing to do with bringing the Union into the store. Gore testified Molina also stated he would "call off the dogs," if Gore would get rid of Temo Gonzalez. Molina said he did not want to do anything to jeopardize his job. Gore testified he told Molina he only had to do his job properly and there would be no problem. 8. Amelia Caro—Jere Delano: Caro testified that on March 26, Delano called her into Ruby's office. She stated that in the past, Delano would normally meet with all of the employees in his department as a group when he had matters to discuss with them. On this occasion, however, he met individually with the employees in Ruby's office. According to Caro, Delano stated the em- ployees were taking too much time for their breaks. He also told Caro that half of the employees in the depart- ment were going to get a raise or have their wages ad- justed, but Caro was one of the few who would not re- ceive a raise or a wage adjustment. She testified Delano stated too many employees were coming from other de- partments to speak with Caro while she was working. He asked Caro if she had a problem. It was then, accord- ing to Caro, that Delano asked why the employee was trying to help get the Union in the store. Caro informed Delano she would rather not discuss that matter. Delano then told Caro she must already know how Respondent's management knew of her activities on behalf of the Union. He suggested that Caro bring in all the informa- tion on the benefits promised by the Union and go to Padgett to compare them with the benefits given by the Respondent. She further testified that Delano said while management had told him the Respondent would not fire Caro, they could do so because she was involved with the Union. Delano admitted meeting with Caro and other person- nel in his department on March 26 in Ruby's office. The purpose of these meetings was to discuss the problems in his department. He testified he informed Caro that she was below the department standard for Point of Pur- chase (POPs) applications in her sales. 22 Regarding the 22 Point of Purchase or POPs credit applications come about when a customer makes a purchase and does not have a credit account with the Respondent The sales personnel were required to solicit credit applica- tions from this category of customer and submit them to Respondent's customer assistance department Each commission salesperson is required to generate a minimum number of new accounts each month in order to meet the POPs standard for their department. wage adjustment that employees were receiving, Delano stated he told Caro she would not be getting a raise or a wage adjustment because she was at the level she should be for the length of time she had been employed by the Respondent. Delano admitted discussing the Union with Caro and the other employees. He stated he told Caro that if she wanted to get a true picture of what the Union was promising, she should get a statement in writ- ing of all the benefits the Union claimed it would give the employees and compare them with the benefits the Respondent was giving to the employees. Delano also stated that during his interviews with the employees, a number "volunteered" they were not in favor of the Union. However, he denied asking the employees about their union sentiments. He further acknowledged he might have told employees on occasion that a union was not needed in the store. He also testified he told Caro he did not want employee Mary Guerra coming into the de- partment to visit her. He stated Guerra was loud and dis- rupted the operation of the department. Delano admitted on cross-examination that he was aware Guerra was active on behalf of the Union when he made this com- ment to Caro. 9. Gloria Diaz—Edward Moreno: Diaz testified that Moreno spoke with her on April 6 or 7 in the sewing department about the Union. According to Diaz, Moreno asked if she had signed a card for the Union. Moreno also stated he knew, more or less, who among the employees in his department were in the Union. Moreno, on the other hand, denied ever asking any of the employees in his department about their union activi- ties or sentiments about the Union. He also denied that he ever indicated he was aware who among the employ- ees were involved with the Union. 10.J. B.Casso—Chris Rocha: Casso testified that some- time in March, Padgett came into the furniture depart- ment. Rocha told Padgett in a loud voice that everyone working there ,belonged to the Union. According to Casso, all of the other sales personnel were present at the time. Casso also testified that approximately 2 weeks before the election, Rocha told him that Respondent's staff members had checked all the sales tickets of the employ- ees and now had proof that would allow the Respondent to legally fire all union supporters. When Casso ques- tioned how this could be possible, Rocha cited examples of how the Respondent could change the past records to show that the employees had somehow violated store policies and procedures. Rocha said this would enable the Respondent to discharge employees who supported the Union. 11. Yolanda Alvarado—Ed Moreno: Alvarado testified to a number of conversations she had with her depart- ment manager, Ed Moreno. Alvarado stated that some- time in May, Moreno told her the Respondent did not have to bargain with the Union even if the Union won the election. According to her testimony, Moreno made this statement on several occasions. Alvarado also testi- fied that on June 13, Moreno spoke to her and Gloria Diaz about the coming election. Alvarado stated that Moreno told the employees he had just come from a 144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD meeting with management and, "You all have lost the election." When Alvarado asked Moreno how he knew this because the election had not yet occurred, Moreno replied that he had just been in a meeting with the de- partment managers in which they had counted the number of employees they felt were going to vote for management. According to Alvarado, Moreno said, "We have 137." At this point Alvarado told Moreno that a number of employees were saying they were going to vote for the Respondent simply because they did not want to get into trouble. Moreno told Alvarado that the Union should have written down the names of their sup- porters in order to secure their votes. Alvarado further testified that on June 17, Moreno told her that if the election "does not go through," a lot of employees were going to get fired. She stated he iden- tified Fred Garcia and Carlos Molina from the appliance department and Ramero Juarez and Juan Gonzalez Jr. from the TV and stereo department. According to Al- varado's testimony, Moreno said the Respondent initially intended to get rid of the "main pushers" for the Union. Alvarado stated that shortly after the election (June 18), Moreno came up to her and Gloria Diaz and stated he had just come from a meeting with Gore. According to her testimony, Moreno said Gore instructed the depart- ment heads not to harass the employees who had been supporters of the Union because the Union only lost a small margin, and might possibly be brought in "by force" in September. Alvarado stated she told Moreno that harassment was already taking place, and she point- ed to treatment she considered to be unfair to herself, Fred Garcia, and Carlos Molina. She testified that Moreno indicated this was pursuant to the orders of "Big P," who Moreno identified as Frank Perez. Several days later, a desk which the employees used to do their paper work in the sewing department was removed. When Al- varado complained to Moreno about this, he said the desk was removed on orders of Gore. According to Al- varado, Moreno stated the desk was removed "because the employees were involved in the Union and Gore was trying to make it hard on them." Moreno denied he ever told any of the employees in his department he knew the Union had lost the election even before the balloting had taken place. He also denied stating that employees would be fired if the Union lost the election, or that the Respondent would not bargain with the Union if it were voted in. He stated that after the election, a number of employees came up to him and said they were going to appeal the results because the Respondent had tricked the employees and used witch- craft to twist the minds of several employees to get them to vote against the Union. He denied stating that Molina and Garcia would be harassed by management after the election, or that the Respondent was going to get rid of the "main pushers" for the Union. He acknowledged that he was familiar with the word "pusher" because he used to work in the oil fields, but denied using that expression at the store. Moreno also denied telling the employees the desk was removed from the sewing department to make it uncomfortable for the employees because they had supported the Union. He stated there was no need to have a desk for the employees to do their paper work because the sewing machine cabinet tops were used for this purpose Finally, Moreno denied ever referring to Frank Perez as "Big P." 12. Yolanda Alvarado—Fred Hull: Alvarado testified to a conversation she and employee Rudy Cerda23 had with Store Manager Hull in the sewing department sometime in April. According to Alvarado, she and Cerda were reading copies of unfair labor practice charges which had been filed against the Respondent by the Union as Hull walked by the sewing department. Al- varado testified that Hull asked if she had sold anything that day, and she replied she had not. Hull then said, "If you were doing your job, don't you think you would be selling instead of reading that." Hull questioned Cerda concerning why he was in the sewing department. Ac- cording to Alvarado, Cerda indicated he was waiting for his truck to be repaired and walked away. Hull testified that he observed Alvarado and Cerda reading a piece of paper as he was passing by the sewing department. He asked Alvarado if she had made her sales quota for the day and the employee replied that she had not. He then told Alvarado that if she were taking care of business instead of doing something else, she could make her quota. Hull acknowledged that he asked Cerda why he was in the sewing depai tinent and when told that Cerda was waiting for his truck to be repaired, di- rected the employee to get a ride back to his department if his truck was not going to be ready for awhile. 13. Maria Garcia—Jere Delano: Garcia testified that she had several conversations with her supervisor, Delano. According to Garcia, on March 26, Delano called her into Frank Perez' office. He told the employee the Respondent was going to make adjustments in the wages of the employees and he went over her work per- formance appraisal with her. Garcia testified she in- formed Delano she had been promised a raise in March. According to Garcia, Delano stated he was not aware about that but if her work performance were all right, he would see about getting her a wage increase. Garcia fur- ther testified that Delano then asked her to bring him in- formation on the benefits promised by the Union. He told the employee he did not want her to get into trou- ble and advised her that he was against having a union in the store. On April 4, Garcia had another conversation with Delano. She stated Delano had called her into Ruby's office this time. When she arrived, Delano said he had to "cool down" for 2 hours before talking with her because he was "very pissed off." Delano told Garcia that Edith Salge, his assistant, reported to him that Garcia would not do the tasks Salge assigned to her in a timely fashion; but when she later did them, she did a good job. Delano told Garcia he did not want to put her on probation and he wanted the best for her. He instructed Garcia to do what Salge directed when she directed it to be done and to do a good job. Garcia agreed to comply with De- lano's instructions. Delano acknowledged having a conversation with Garcia about a wage adjustment. According to Delano, 23 Cerda worked in Respondent's service department. MONTGOMERY WARD & CO. 145 he told Garcia that she would get a wage adjustment be- cause the Respondent had conducted a wage survey and increases were found to be warranted. He also admitted discussing the Union with the employee at this time. He told Garcia she should get the benefits the Union was promising in writing and go to Padgett to compare them with the benefits given by the Respondent. Delano stated he told this to all the employees in his department, but he did not recall whether he had spoken to Padgett prior to making this suggestion to the employees. Delano further acknowledged that he spoke with Garcia about her failure to comply with instructions given by Salge. According to Delano, this occurred sometime in March. Delano stated he told Garcia she should follow her supervisor's orders and do the job when it was intended to be done. He did not give Garcia a written warning because this was the first complaint against her since she began working in his department. Delano also recalled that approximately a week after this last discussion, he had occasion to speak to Garcia again. He stated he instructed Garcia not to go out of her de- partment during working time "harassing" employees about the Union. He told Garcia the employees were en- titled to make up their own minds whether they wanted to be represented by the Union. Salge confirmed that she complained to Delano about Garcia's work performance. Delano asked if she wanted Garcia placed on probation and she indicated she did not. Salge stated she merely wanted Garcia to improve her work performance. She testified she later told Delano that Garcia's work had improved. On cross-ex- amination, Salge admitted she was aware Garcia was active on behalf of the Union and she was certain Salge had passed this information on to Delano. 14.Mary Guerra—Chris Rocha: Guerra testified that in late March, Padgett passed by the furniture department where she worked. Guerra corroborated the testimony of Casso that Rocha called out to Padgett and said that all the employees in his department had signed authoriza- tion cards for the Union. According to Guerra, Rocha pointed out that she and another employee, Torres, had signed cards. Guerra retorted, "Hell, you want the Union as badly as anyone else, don't you?" She stated that Rocha replied, "Yeah." Guerra testified to another conversation with Rocha regarding the Union. Although she did not fix the pre- cise time when the conversation took place, Guerra stated that Rocha asked if she wanted to get the Union in the store. Guerra replied that she did. At this point, Rocha stated he guessed it would go through, but then again, he did not know if it would or not. 15.Fred Garcia—Hector Villarreal: Garcia testified to a conversation he asserted took place on February 14, the day the meeting was held at the Hilton. He stated that during working hours he went into Villarreal's office to speak with him. According to Garcia, Villarreal wanted to know how many employees had signed authorization cards for the Union and he wanted Garcia to give him their names. Garcia replied that it was up to Villarreal to find that information out for himself. He stated Villarreal then mentioned that Del Castillo and Molina were names - that he knew, and he would find out who the others were and keep an eye on all of the employees. Villarreal recalled talking to Garcia during the day on February 14. He said Garcia called his office and stated he had some information he wanted to give Villarreal. He told Villarreal he thought he had some evidence of a "kickback" being taken by his department manager, Temo Gonzalez. During this conversation, according to Villarreal, Garcia also stated that he, Del Castillo, and Molina were active in trying to get a union in the store. Garcia told Villarreal that they wanted to get rid of Temo Gonzalez either by causing Villarreal to investi- gate the kickback claim or by bringing in the Union. Vil- larreal testified that this was the first time he heard about the union activity among the employees. 16. Fred Garcia—Bob Gore: Sometime in mid-April Garcia had a conversation With Gore. Garcia testified he asked Gore what changes would occur if the Union became the representative of the employees. Garcia stated Gore replied it would be a different "ball game." He said the Respondent would deduct points from em- ployees for violations and when enough points had been accumulated, the employees would be brought before a "union jury" and if found guilty, would be fired. Garcia asked Gore why only union supporters were being writ- ten up by the Respondent's supervisors and management. According to Garcia, Gore replied they were the only ones committing violations. Garcia protested that this was not true and the conversation ended at that point. Gore admitted he had a conversation with Garcia, but stated it came about by Garcia advising him that the union campaign had nothing to do with Gore personally. He testified Garcia said he did not want to jeopardize his job. Gore replied that the employee merely had to do his job and there would be no problem. 17. Tekla Ronnbeck—Bob Gore: Ronnbeck, the payroll clerk, testified she had a conversation with Gore in his office approximately a week before the election on June 18. According to Ronnbeck, she was speaking to Gore about the large number of wage increases 24 when Gore told her that he had seen her name on a "union letter." Ronnbeck replied, "Yes," and asked Gore if he was sur- prised. Gore stated he was not. Gore testified he had several conversations with Ronn- beck about the Union. He stated that in late February or early March, Ronnbeck told him she wanted to get a union in the store because her husband and sons had all been union members, and the failure to have union repre- sentation for employees was one of the things wrong with the "Valley." He stated that in April, Ronnbeck came to him and asked what effect the Union would have on the store payroll. Gore replied that it would have no effect whatsoever. Gore denied initiating any conversations with Ronnbeck regarding the Union and indicated that when the topic was discussed, it was brought up by the employee. 18. Javier Del Castillo—Fred Hull: Del Castillo testified that on March 1, he was called into Gore's office and 24 The wage increases are treated as a separate topic in this decision, infra. 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they had a strong disagreement over a policy exception notice (written reprimand) issued by Gore over the han- dling of a sale of a refrigerator by Del Castillo. Del Cas- tillo admitted their disagreement was intense and during the discussion their voices became quite loud. He stated that when he left Gore's office, Hull stopped him. 25 Hull told Del Castillo if he did not like the way management was running the store, why not quit. Del Castillo asked hull what was the problem and Hull replied, "You are the problem." Del Castillo asked Hull what was the problem and Hull replied, "You are the problem." Del Castillo questioned why he was considered a problem and asked Hull if it was because he tried to clarify things and solve matters pertaining to customers. He stated Hull repeated that if Del Castillo did not like the way things were run, he could walk out of the "big door in front." Hull testified that he spoke with Del Castillo at the time the employee was having a corrective interview with Gore. According to Hull, Del Castillo became loud and belligerent toward Gore and Hull went in and told Del Castillo that if he did not like the policies of the Company, he had the privilege of leaving. 19. Amelia Caro—Chris Paloma: Paloma is the person- nel manager at Respondent's Laredo, Texas store." Prior to going to the Laredo store, Paloma worked at the McAllen store for 6 years. Her family was in the McAllen area and she maintained a close relationship with some of the employees at the McAllen store; she was especially close to Amelia Caro. Sometime in late February or March, Paloma returned to McAllen to visit for the weekend. Caro and Guerra gave a barbecue party for her and invited several other store employees who were friends of Paloma. Maria Garcia attended this gathering and testified that during the course of the evening, Paloma asked the employees if they had signed authorization cards for the Union. Ac- cording to Garcia, when a number of employees indicat- ed they had, Paloma said, "You all don't know what you are doing." Caro testified that several weeks, later she had a number of union supporters over to her apartment for a meeting, and she received a telephone call from Paloma in Laredo. According to Caro, Paloma stated she was worried about Caro because Paloma had told several people in the Laredo store that Caro was involved in ac- tivities on behalf of the Union at McAllen. Caro replied she now knew what kind of friends she had and the con- versation ended. Approximately 5 minutes later, Paloma called Caro again. She asked Caro not to mention her name or the fact that she passed on the information to Caro, because it might get her into difficulty. Caro stated Paloma called a third time that evening and asked Caro if she knew what she was doing. At this point, Caro re- fused to discuss the matter any further with Paloma. Paloma acknowledged she attended a barbecue party at Caro's home during her visit to McAllen. She stated she and Caro were old friends and called each other on occasion. According to Paloma, she first learned of the union campaign in early January from Caro during one 25 Gore's office is located next to that of the store manager 26 Laredo is approximately 150 miles from McAllen. such telephone conversation. Caro mentioned in this con- versation that a union representative (Johnson) had been ejected from the Respondent's store. Paloma further tes- tified that the barbecue was given as a homecoming party for her by Caro and Guerra. While they were gathered with the other employees at the party, someone brought up the subject of the Union. Cam, Guerra, and Maria Garcia indicated they had signed authorization cards and Paloma asked the employees if they knew what they were doing. Paloma testified her concern was based on her personal relationship with Caro, although she stated she did not believe that the employee's job would be in jeopardy because of her union activities. She testified that Guerra indicated she was supporting the Union because management was pressing her about meet- ing her draw as a commission salesperson. Paloma further testified that 2 weeks later, she called Caro from Laredo. Paloma admitted her store manager in Laredo had mentioned that union activity was taking place at the McAllen store. Although Paloma testified she did not indicate she was aware that Caro or the other employees were involved with the Union, she stated her boss in Laredo asked if she knew anything about Del Castillo, Molina, or Caro. In response to his question, she indicated she knew Caro. Paloma testified she told Caro during this phone conversation that Paloma was a ledger employee (management) and Caro was a timecard employee, and they could no longer dis- cuss business when they talked. She told Caro she felt she might have mentioned Caro's name to management people in Laredo. Caro replied, according to Paloma, that she did not care who knew about her union involve- ment. She stated that she was looking for another job in any event and Paloma cautioned Caro to be careful. Paloma admitted she called Caro back approximately 5 minutes after the first conversation. She told Caro that the matter was only between them as she did not want anyone else to know about their discussion. Paloma testi- fied she was concerned about Caro mentioning her name and thus identifying her as supporting the union effort in McAllen. During this second conversation, Caro men- tioned that Molina had been suspended from the McAl- len store and Paloma stated that she did not want to know anything about the Union. She again cautioned Caro to be careful and terminated the conversation. Paloma denied she had been instructed to inquire about Caro's union activities or to speak to the employee about her union involvement. She also stated that she only re- called telephoning Caro on two occasions that evening. I. The Wage Increases The record discloses that a large number of employees received wage increases in 1980; especially during the months of March and June. Tekla Ronnbeck testified that during her 5 years as the payroll clerk, she had never processed pay increases for so many employees as she did in March and June. Ronnbeck stated she had to use a special form called a "mass change form" to ac- commodate all of the names rather than make out indi- vidual forms for each employee, as had been the past practice. Ronnbeck testified that while it was not unusual MONTGOMERY WARD & CO. 147 for employees to receive several pay increases in the course of a year, it was unusual for so many to get them at one time. Ronnbeck did not attribute these increases to the increase in the Federal minimum wage, which went into effect in January 1980. She stated that all ad- justments for the minimum wage had been put into effect in January. She acknowledged, however, that because of the increase in the Federal minimum wage, the more senior employees also received wage increases to main- tain the differential between their hourly rate and the new minimum wage. 27 Ronnbeck estimated that approxi- mately 100 employees received wage increases in March and approximately 70 employees received increases in June.28 She noted that the June increases were effective on June 4 and the pay raise was reflected in the pay- checks received on June 18; the date of the election.29 According to Ronnbeck, wage increases are normally given on the anniversary date of employment, unless the recipient is receiving a merit wage increase. In the latter situation, the increase could occur at any time during the employment year. Ronnbeck also confirmed that anni- versary- date increases do not necessarily occur on the exact anniversary date of hire for each employee. In some instances, they are given prior, and in others, sub- sequent to the employee's anniversary date. Ronnbeck stated that while some of the wage increases on March 26 and June 4 were classified as merit increases, most were designated as "adjustments" or "equity" increases. Because of the large number of wage increases, Ronn- beck spoke to Gore about them a week before the elec- tion in June. 3° According to Ronnbeck, she told Gore that many of the increases given to the employees were in larger amounts than had been given in the past. Ronn- beck attributed the size of the increases to the pressure being asserted by the union organizing campaign. Gore denied this. He told Ronnbeck that in the past, many de- partment managers had not been efficient in determining when employees should get raises and let a number of raises slip by. Padgett was the principal witness for the Respondent regarding the wage increases given during the union campaign, and her testimony was corroborated by Hull and Gore. First, Padgett stated it was the general policy of the Respondent to review the job performance of all new employees at the end of 90 days and if they proved satisfactory, they were given a 25-cent-an-hour increase 2•Z was described as the "ripple effect," which occurs when the minimum wage is increased In order to maintain the differential between the employees earning the minimum wage rate and the more senior em- ployees, it was always necessary to make adjustments for the latter cate- gory whenever there was a change in the minimum wage rate. 28 The General Counsel submitted exhibits compiled from Respond- ent's records that listed the employees and the amount of wage increases they received on March 26 and June 4 (See G C Exhs. 102 and 103.) The Respondent submitted similar lists from its records, but the Respond- ent's lists indicated the reason for the pay increase for each employee. (See R Exhs. 67 and 68.) Roth sets of exhibits show that over 140 em- ployees received wage increases on March 26 and 70 employees received wage Increases on June 4 29 Under the Respondent's payroll system, a 2-week timelag existed be- tween the effective date of pay increase and the date when the increase first appeared in an employee's paycheck. 3° This was the same conversation in which Gore informed Ronnbeck that he was surprised to see her name on a letter supporting the Union in pay. Next, Padgett stated all employees received annual performance appraisals on the anniversary date of their employment and if the appraisals were satisfactory, a wage increase was given. She acknowledged that some supervisors turned in appraisals before the anniversary dates, and others after. Thus, annual wage increases were not necessarily given on the precise anniversary dates of the employees affected. She further testified that when an employee was promoted to a new position, it was Re- spondent's policy to give that employee the minimum wage level for the new position, but the increase could not be greater than 20 percent. If the minimum level for the new position was greater than 20 percent, the em- ployee would be reviewed ever 6 months and given a raise until the level was reached. Padgett also testified to a number of wage plans or programs that directly impacted on the wage increases received by the employees during this period. According to Padgett, the Respondent's corporate headquarters ap- proved a plan for the auto service employees in October 1978, which was not implemented in the store until Sep- tember 1979. Under this plan, the Respondent was to give the auto service employees wage increases every 6 months (March and September 1980) until they reached the level required by the plan. According to Padgett, a later wage survey revealed that these goals could not be achieved with 6-month increases, and management decid- ed that these employees would receive increases every 3 months until the plan's objectives were achieved in Sep- tember 1980. Padgett stated she discussed the review of the auto service plan with Hull and with the district per- sonnel manager. They approved changing the interval of the wage increases to 3 months. Padgett stated her survey revealed that Respondent was paying its auto service employees less than its chief competitor, Sears, and consequently, was losing personnel to Sears. Padgett also referred to another wage program in effect at the store for the repair service employees. She stated Respondent was losing its repair service employ- ees to competitors because of its lower wage scale. Pad- gett acknowledged that Respondent had a repair service wage plan for the employees in the store since 1976. Ac- cording to Padgett, in late February, 1980, she discussed updating the wage survey for the repair service depart- ment with its manager. Padgett stated her data showed that Respondent's employees were still being paid less than similar employees at Sears. 3 ' Padgett testified she spoke with higher level management, including the dis- trict manager's office, and a decision was made to give all of the service repair employees wage increases in March 1980. After this increase, according to Padgett, the Respondent continued to review the wages of the service repair employees and discovered they were still below the wage scale for similar employees in the area. Therefore, management decided to give these employees 37 Padgett testified that she conducted an informal wage survey in 1979 and it revealed that the repair service department employees were receiving lower wages than any of Respondent's competitors. She further stated that in July 1979, the entire department received wage increases but acknowledged this also occurred in the 2 previous years (1977 and 1978) 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wage increases every 3 months until their wages were comparable to those paid by Respondent's competitors. Padgett further testified that on instructions from Re- spondent's district office to all stores in the district, the draw-rate for commission sales employees was increased. The net result of this was to increase the hourly rate each commission salesperson earned against the draw, but it also meant that each salesperson in this category had to sell more merchandise to meet the draw." Pad- gett also stated that the truck tire sales personnel had their base rate increased from $140 to $185 a week on instructions from Respondent's district office. These in- structions applied to all district stores with truck tire centers. Padgett also testified regarding the increase in the Federal minimum wage rate. Although the minimum wage was $3.10 an hour, the Respondent's corporate headquarters set $3.15 per hour as its minimum rate. Pad- gett stated she was not aware of this until March 1980, when she received a directive from the district personnel office. (See R. Exh. 55.) In order to meet the require- ments of this directive, Padgett immediately gave pay raises to those employees who were receiving less than $3.15 per hour. According to Padgett, this caused a ripple effect and other employees had to be given pay in- creases to maintain the wage differential. Padgett also testified about another plan that was put into effect in all of Respondent's store that impacted on the wages of the employees. According to Padgett, the regional office required a change in the job grades of the lead salespersons in all of the stores. These individuals were moved up from job grade 3 to job grade 5. This change resulted in a storewide increase of a minimum of 40 cents an hour for all of the employees so affected. In addition to the above programs, Padgett stated she also looked at the wage scales being paid to the employ- ees working in the customer accomodation center (CAC). Padgett testified that there was an extremely high rate of turnover among these employees and she and Ruby" decided that a wage increase was in order. 34 After securing approval of the store manager, these employees were granted increases of 20 cents an hour. According to Padgett, this reduced the turnover rate among the CAC employees from almost 100 percent to 70 percent. Finally, Padgett testified that in March 1980, she re- viewed the job grades of the employees on a storewide basis and analyzed the information obtained from this review without regard to the departmental listing of the employees. (See R. Exhs. 63 and 64.) Prior to this ap- proach, Padgett always reviewed the job grade structure departmentally, and did not take into account the differ- ences in the wage rates earned by employees working in different departments but occupying the same job grade. According to Padgett, this study disclosed numerous in- equities in the wages earned by employees with the same 32 By increasing the weekly draw for the commission salespersons, the Respondent in effect raised their salaries from $3 25 to $3 75 an hour. 33 As store controller, Ruby was the manager of this section 34 Padgett testified that when she compared the salaries being paid to these employees to the wage scale that should have been in effect in Feb- ruary 1980, she discovered these employees were below the standard re- quired by the wage program job grade and the same length of employment. She passed this information onto the store manager and the district office. Padgett stated she was instructed to cor- rect this condition as soon as possible by giving the em- ployees adversely affected wage increases. She was also instructed by the district office not to string out the wage increases over the year. Padgett took full responsibility for selecting June 4 as the date the second major round of wage increases would become effective. She stated that once this date was chosen, the store manager had the final authority to approve implementation of the increases. Padgett also testified that she was fully aware the increases would not be reflected in the employees' paychecks until 2 weeks later (June 18). Hull recalled that Padgett conducted a survey some- time in January 1980 to determine if the wage scale paid by the Respondent was competitive with Sears. Accord- ing to Hull, the survey showed that Sears had drastically changed their wage scales to a "time-step program." Analysis of the information obtained by Padgett indicat- ed that the Respondent was not competitive with the wages being paid in the marketplace. Hull discussed the matter with the district manager and the district person- nel manager. He stated he was ordered to implement a wage plan and put it into effect immediately in order to enable the Respondent to obtain parity with Sears.35 J. The Discharge of Baldemar Flores and Reynaldo Gonzalez Flores and Gonzalez worked in the shipping and re- ceiving department under Carlos Sandoval. Gonzalez was hired by the Respondent in October 1979 and Flores was hired on January 22, 1980. Flores testified that on February 18, he was told by Sandoval that he was going to be laid off because there was a slow sales period in the store. According to Flores, Sandoval told him that after things picked up, he should come back. Flores went to Padgett's office that day and was informed by Padgett that he was being laid off because business was slow. Gonzalez testified that he was called into Padgett's office on February 18 and told that the Respondent was cutting down on the number of hours budgeted for em- ployees and since Gonzalez was new, he was being laid off first. Gonzalez went to Gore to question the reason for his layoff and was told that his work was satisfac- tory, but that the Respondent had to cut back on the number of hours available for employees to work. After his layoff, Gonzalez went to work for Ruby, the store controller, in Ruby's private landscaping business. Gon- zalez testified that in March he had occasion to go to the store to see Ruby about getting his paycheck for some landscaping work. According to Gonzalez, Ruby took him aside and went out in the parking lot to talk with him Gonzalez testified Ruby informed him that Hull did not want him coming into the store and "passing out any 35 Gore testified that in late November 1979, he instructed Padgett to conduct a wage survey among the warehouse employees and truckdnv- ers According to Gore, unlike the testimony of Padgett and Hull, this survey determined that the Respondent was competitive in this particular area at the time of the survey. MONTGOMERY WARD & CO. 149 type of thing." When Gonzalez asked Why, Ruby replied that Gonzalez signed a union card when he was working for the Respondent and that was why he was laid off. Gonzalez further testified that Ruby called him at home sometime in April and asked what kind of trouble Gon- zalez was getting him into with the labor board." Pad- gett testified that Gonzalez had a satisfactory work record, but there were some problems with Flores. Pad- gett stated she had been told by Gore that there had to be cuts in the nonselling area and the receiving depart- ment had to lose two people. Padgett decided to lay off those who were the last hired, and these individuals were Flores and Gonzalez. She stated the Respondent had no recall policy and laid-off employees were rehired only if there were vacancies they could fill when they reapplied. Padgett testified that in the receiving and stockroom area, the need for personnel diminishes after the inventory period following the Christmas season. Ac- cording to Padgett, business does not pick up in that area until the back-to-school season commences in August. Padgett stated that in prior years there were layoffs in the receiving department and none of the laid-off em- ployees were ever recalled or transferred to other de- partments. Padgett denied having any knowledge about the union activities of Flores or Gonzalez at the time the decision was made to lay them off. Gore testified that his payroll was exceeding the allot- ed budget so he decided to reduce personnel in the ware- house and also in the POPs area and in the credit depart- ment. Gore stated this decision was made because the in- ventory had been taken after the Christmas season and sales in the store were generally down. Gore denied any knowledge of the involvement of Flores and Gonzalez with the Union. Gore indicated his decision to trim back in the nonselling area was ordered by the Respondent's district office. He then went to Padgett to determine the last two employees hired in receiving and ordered them laid off in order to reduce his payroll. In the other sec- tions of the nonselling area, Gore stated he cut back in the number of hours worked by the employees. Ruby acknowledged that he conducted a private land- scaping business while he was working as controller for the Respondent. He stated that Gonzalez worked for him while they were both employed by the Respondent. Sometime in March, Hull admonished Ruby for conduct- ing his private business on the store phone and receiving calls and visits from employees in his landscaping busi- ness while working at the store. Ruby testified that Gon- zalez came into the store that month to inquire about working for Ruby the following week. Ruby left the store with Gonzalez and asked Gonzalez not to discuss any private business while he was working at the store. According to Ruby, Gonzalez understood and agreed. Sometime in April, Ruby and Gonzalez were both working on a landscaping job. After the completion of the job they were in Ruby's truck drinking beer. Ac- cording-to Ruby, Gonzalez mentioned that he was prob- ably laid off by the Respondent because of his activities on behalf of the Union. Ruby testified that he replied in 36 The Union had filed charges alleging that Gonzalez was laid off be- cause of his union activities. a joking fashion, "yes, you probably was [sic], you ass hole." Ruby testified he intended this to be a joke, but Gonzalez apparently took it seriously. According to Ruby, after the Union filed charges al- leging the Respondent terminated Gonzalez for engaging in union activity and that Gonzalez had been "badgered" by Ruby, he called Gonzalez at home. He asked Gonza- lez if he thought Ruby was serious about his comments about the reason why Gonzalez had been laid off. Gon- zalez indicated he thought Ruby was serious and that was why he had been instructed not to talk to Ruby at the store. Ruby testified he denied this was what he in- tended, and said he only meant for Gonzalez not to con- sult with him at the store regarding the landscaping busi- ness. After Flores and Gonzalez were laid off, Rogelio Alaniz was transferred to the receiving department on April 11 Alaniz had worked part time in store security under Villarreal. Gore testified Alaniz had not been per- forming well in the security section and he needed a full- time job to support his family. Since the Easter season was approaching and sales were increasing, he consulted with Padgett and they decided to transfer Alaniz to the receiving department. The Respondent's records reveal that no other new hires or transfers occurred in the re- ceiving department until August (when the back-to- school season started) and October (when the prepara- tion for the holiday season commenced). (See G.C. Exh 99 and R. Exh 42). K. The Suspension of Molina As noted previously, Molina was suspended for a brief period commencing March 20. According to Molina, on that date Temo Gonzalez noticed that someone in the major appliance department had crossed out the price on a tag on a washer and placed a new price in ink instead of putting a new tag with the correct price on the appli- ance. In an effort to determine who was responsible, Gonzalez went around checking the pens of all the sales- persons to compare the color of the ink. He did not ask Molina, however, for his pen. Molina became incensed and asked if Gonzalez wanted to see his pen also. Gonza- lez replied that he had not asked for it. Molina insisted and Gonzalez told Molina he did not have to put up with the employee's actions. 37 He ordered Molina to go home for a few days. Molina left the department and went to the Buffeteria. Gonzalez called Villarreal over to get Molina to leave the store. Molina then went out to a phone in the mall and called Hull. He was told by Hull to contact him in a few days and he would let the em- ployee know when he was to return to work. Molina then placed a call to the Respondent's regional office in Dallas about his suspension and was informed he would 37 Molina also testified that on the preceding day when Johnson was ejected from the store, Gonzalez came up to him and said, "Why don't you go help your friend?" Gonzalez then ordered Molina to clean a new shipment of refrigerators that had just been placed on the sales floor Molina questioned why he had to do the job when Gonzalez' cousin was standing in the department reading a- newspaper. Molina stated that de- spite his objections to cleaning the refrigerators, he completed the job as directed by Gonzalez. 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD be contacted by Paul Perez. According to Molina, Perez called him from Hull's office and Molina objected to dis- cussing his complaints while Perez was with Hull. Perez arranged to meet with Molina later that evening. Molina met with Perez at the latter's hotel and they went out to dinner. Molina stated Perez told him unions were not good for retail stores. According to Molina, Perez stated the unions only took dues and did not get good contracts for the employees. Molina testified that Perez asked what it would take to get him to help defeat the Union. Molina replied that it would be necessary to get Hull "to walk a straight line" and remove Temo Gonzalez from the major appliance department in order to show him the Union was of no advantage to the em- ployees. Molina testified Perez stated he was interested in correcting the problems at the store, "union or no union." According to Molina, Perez said that Molina had to prove himself before any actions could be taken, and Molina responded that it was up to the Respondent to show the employees they were interested in correcting the employees' complaints. The next day (Saturday) Hull called Molina and asked the employee to report to his office the following Monday. When Molina met with Hull, Hull gave him a policy exception notice reprimanding Molina for his con- duct. (G.C. Exh. 33.) The notice accused Molina of in- sulting and humiliating Gonzalez in front of other em- ployees and engaging in "disrespectful conduct" the day before regarding the cleaning of the refrigerators. The notice stated Molina was to be placed on disciplinary probation for 30 days, ending on April 22. Hull told Molina he wanted the employee to stop embarrassing Gonzalez in front of the employees. Molina refused to sign the notice, asserting that it was not true. He ques- tioned Hull about where he got his facts and Hull stated it was based on information supplied by employees Broaddus and Salinas. Molina asked Hull to bring them into the office and have them make the statements to his face. Hull refused to comply with this request. When Molina continued to refuse to sign the policy exception notice, Hull asked the employee to state at the bottom the reasons why he would not sign the letter. Molina did so and, according to Molina, Hull suspended him for 30 days. When Molina returned home, he received another phone call from Hull. According to Molina, Hull said he had made a mistake and he was revoking Molina's sus- pension. He asked the employee to report back to work that same day, which Molina did. Hull testified that in late March, Gonzalez complained to him that Molina had refused to do his share of house- keeping chores. He claimed that Molina threw a rag on a refrigerator, when he was asked to clean it. Hull instruct- ed Gonzalez to advise Molina to do his share of the work or be written up on a policy exception notice. Hull stated that Gonzalez later came to him and said he had sent Molina home. Gonzalez informed Hull that he was interrupted by Molina when checking the pens of the salespersons to determine who had changed a price tag. Gonzalez told Hull that Molina was rude and insolent when he interrupted him Hull called Villarreal and asked him to talk to the employees who were present when the incident occurred and to report the facts back to him Based on Villarreal's report, Hull talked to Broaddus and Rachel Salinas about the incident. Accord- ing to Hull, these employees confirmed that Molina was wrong and had been rude to Gonzalez. Hull then wrote up a policy exception notice on Molina regarding the in- cident. 38 Hull confirmed that he called Molina and asked the employee to come to his office. He went over the policy exception notice with Molina and put him on a 30-day disciplinary probation. Hull testified that prior to issuing the policy exception notice, he consulted with Paul Perez. Perez indicated he thought the disciplinary action was proper. Hull stated that during his conversa- tion with Molina they both became confused over the terms of the policy exception notice, and Molina thought he was being suspended for 30 days. Hull was unable to recall, however, whether he had told the employee that he did not want to see him around the store until the 30 days were up. Hull stated he became aware there was a misunderstanding between them when Molina asked for his vacation pay, and Hull denied the request. However, Hull acknowledged he did not clear it up at that point. After Molina left, Hull called the employee at home and said the discipline was probation and not suspension. He asked Molina to return to work that afternoon and the employee did. Paul Perez acknowledged he spoke with Molina from Hull's office after being informed by his regional office that Molina called and wanted to speak to someone about his situation." He stated Molina wanted to know if anyone from the store was present while they were talking and when Perez informed him ,Hull was there, Molina declined to talk any further. Because of this, a meeting was arranged at 7 p.m. that day away from the store. Perez testified that Molina came to his motel and picked him up and they went out to dinner. According to Perez, the discussion centered on the morale problem in the store. Molina indicated the Union was the last resort for the employees because they had received no satisfactory action from local management or from the district office. Molina complained about the way the sales personnel were treated, especially in the major appliance department. Molina told Perez that the employees were discontented and that was the reason they sought assistance from the Union. Perez was unable to recall whether during the course of the conversation they discussed Molina's suspension. Perez replied that the problems in the store were local. According to Perez, they returned to his motel room and he reaffirmed his commitment to enforce company policy. He said Molina advised him that certain violations were occur- ring at the store such as: sales personnel being required to work while off the clock; Gonzalez "giving away" sales to favorite salespersons; and Gonzalez receiving commissions on sales of bottom-of-the-line merchandise 38 Hull testified that he personally had prepared 15 to 20 policy excep- tion notices on employees between mid-1979 and March 1980 39 Perez admitted on cross-examination that the employees in the major appliance department had been identified as the focal point of the union activity in the store. He also admitted that Molina had been identi- fied as one of the leaders in the umon movement and he was aware of this at the time he spoke with Molina. MONTGOMERY WARD & CO. 151 when other salespersons sold the item. Molina also com- plained that Gonzalez was hiring relatives to work in his department and he accused Gonzalez of being involved in some kind of smuggling operation. Perez denied that he asked Molina what it would take to get him to change his mind about the Union. He also denied that he prom- ised to do anything on Molina's behalf in order to per- suade him to abandon the Union. Perez checked into Molina's various complaints and he also had a discussion with Hull. Perez testified that he advised Hull to deal with Molina's suspension as if the employee's union activities had not occurred. However, he suggested that Hull look into the matter of the sus- pension and stated that he was later informed by Hull that Molina had been called back to work. Perez also in- dicated that he checked into the matter of Gonzalez showing favoritism in his department and determined that Gonzalez only offered help to new salespersons as part of his training program. He determined that the commission on the bottom-of-the-line items was a prac- tice followed by all of the stores in the district. Regard- ing the hiring of relatives, he determined that Gonzalez' relative in the major appliance department had been "grandfathered" in when the Respondent began follow- ing a policy of prohibiting nepotism. Perez testified he had also checked with security on the allegation that Gonzalez was involved in some sort of smuggling oper- ation and assumed that it was under investigation. He de- termined that nothing was occurring that would harm the Respondent. Perez admitted that he discovered some instances when Gonzalez had required commissioned salespersons to work in the warehouse while off the clock. Perez relayed this information to Hull who inves- tigated and found it to be true. Perez advised Hull that this was against company policy and illegal. He told the store manager that all employees who worked would have to be paid. He stated that he was later informed by Hull that this practice had been corrected. L. The Written Warnings Issued to Fred Garcia Garcia testified that after he became involved in the union organizing campaign, the number of written warn- ings (policy exception notices) he received from manage- ment substantially increased. According to Garcia, he re- ceived more policy exception notices after February 1980 than in any other period of time he had been work- ing for the Respondent. Garcia admitted he had previ- ously worked for the Respondent in 1975 and had been placed on probation by Albert Clark, then operating manager, for poor attendance and failure to follow up on customers' complaints. He also admitted that subsequent to this probation, he was terminated by Clark in 1975 for failing to improve in these areas of deficiency. Garcia was later reemployed by Hull, but continued to have problems that resulted in his receiving written warnings from his manager and other members of Respondent's staff." Gonzalez noted on Garcia's performance apprais- 40 Hull testified that when he reemployed Garcia, he told the employ- ee his rehire was conditioned on his taking care of his customers and not lying to them. al in August 1979 that Garcia generated a great volume of sales, but failed to "accomplish what he promises to customers." (R. Exh 7) Respondent introduced into evidence a series of policy exception notices issued to Garcia between December 18, 1979, and July 21, 1980. (R. Exhs. 8-17.) These in- fractions were summarized in a single document by Gore on July 21, when he notified Garcia he was being placed on probation for 90 days. (G.C. Exh. 143.) Each infrac- tion, with the exception of one, involved a failure on the part of Garcia to properly service a customer and in one instance, causing great inconvenience to the customer.4' The one policy exception not directly involving a cus- tomer was a failure to list the serial numbers of micro- wave ovens sold to customers in a register Respondent was required to keep by Federal law. (R. Exh. 13)42 Garcia acknowledged that the underlying incidents, which gave rise to the policy exception notices, had oc- curred, however, he stated that in two instances he had relied on Temo Gonzalez and Ramon Pruneda to follow through on the matters involved in these particular situa- tions. His testimony indicated that because of their fail- ure to do so, the problem arose with the customers. Al- though he acknowledged that the facts did occur as set forth in the various policy exception notices, Garcia re- fused to sign two that were issued to him on July 21. After completing the 90-day probation imposed on July 21, Garcia's work performance improved and Gore testi- fied that Respondent experienced no additional problems with the employee. M. The Discharge of Mary Guerra When the organizing campaign began at the store, Guerra was working as a commission salesperson in the furniture department under the management of Chris Rocha. Prior to working there, Guerra worked as a salesperson in major appliances. She stated she asked for and was given a transfer from the latter department be- cause her sales were low. Guerra attributed her lack of success in the appliance department to her inability to speak Spanish fluently. After her transfer to the furniture department in November 1979, Guerra continued to have difficulty meeting her required sales quota. The docu- mentary evidence discloses that during the time Guerra was working in the furniture department, she was only able to meet her commission sales draw for 3 weeks out of the 5-month period. 43 Guerra testified that in mid- 41 See. R. Exh. 11 wherein the customer traveled 300 miles from Mexico, but was unable to pick up the appliance ordered because of Gar- cia's failure to order it from the warehouse. 42 The testimony indicates that Garcia was not the only salesperson in the major appliance department who violated this rule, nor was he the only one who received a policy exception notice for this infraction. Under the terms of the Federal regulation governing the registration of the microwaves, the Respondent was liable for up to a $10,000 fine for failing to register the products when they were sold. As a result of this infraction, Garcia was placed on probation for 90 days, effective April I. 42 Under the Respondent's policy, all commission sales persons were given a weekly draw against their sales commissions In the furniture de- partment, the draw was $150 a week and the commission on sales was 6 percent. Thus, in order to meet Respondent's minimum standards, each salesperson was expected to sell enough merchandise to earn commissions Continued 152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD March, she was called into Gore's office about her low volume of sales. According to Guerra, Gore stated that while her sales were low, management was going to "let it ride" because she was a good employee and they did not want to lose her. Guerra promised to improve her job performance. Guerra also testified that shortly after she transferred into the furniture department she had attempted to make a transfer to a noncommission selling position in the cos- metic department. She stated the manager of that depart- ment (Mary Gonzalez) asked her during the Christmas season in 1979 if she would like to work in the cosmetic department. Gonzalez considered Guerra to be a good asset. When Guerra expressed interest in making the change, Gonzalez said she would speak to management. Sometime in February, Gonzalez informed Guerra that management would talk to her about the transfer. Ac- cording to Guerra, she was later called into Padgett's office and asked if she was dissatisfied in the furniture department. Guerra replied she was not, but her sales were low. Padgett then told Guerra she felt the employ- ee should remain in the furniture department. She cited the example of another employee who took over a year to get her commissions up to the Respondent's standard. Guerra also spoke to Hull about her low volume of sales sometime in March. She told Hull her sales were low and asked if she could be transferred to another depart- ment. She admitted telling Hull during this conversation that her personal problems had interfered with her per- formance at work. According to Guerra, Hull stated she did not have to worry about her job. Guerra made another effort to transfer to a different department. She stated that she attempted to get a trans- fer into the display department, which was under the su- pervision of Frank Perez. Guerra testified she was re- quired to spend a great deal of her working time acces- sorizing displays in the furniture department. This con- sisted of decorating and placing accessories in various groupings of furniture displays. Guerra estimated she spent 15 to 20 hours a week on this type of work. She acknowledged, however, that all sales personnel in the furniture department were required to perform some dis- play work. Guerra testified she was complimented by Frank Perez for her work on the furniture displays and she asked him if she could be transferred to the display department. According to Guerra, Perez stated she was a commission salesperson, but he would look into the matter. Guerra made a similar request to Hull on March 28, when she became concerned because Gore had come into the furniture department and only checked on her sales. Guerra called Hull on the store telephone to ques- tion this and was told her sales were low. Guerra then asked Hull to transfer her to the display department and indicated that she had previously spoken to Perez about the matter. Hull reminded Guerra she was a commission salesperson and she protested that an inexperienced indi- vidual had recently been hired in the display department. that would equal the weekly draw. If a commission salesperson failed to meet his or her draw for two consecutive 4-week periods or for three, 4- week periods m a calendar year, that individual either would be termmat- ed or transferred to a noncommission position. Hull informed Guerra that this person was only working part time in displays. On April 2 Guerra was called into Gore's office. Pad- gett and Rocha were also present. Gore told Guerra her sales were lower than anyone else in the store. He in- formed the employee that as of that date she was being terminated. Guerra protested that if she had been al- lowed to go to a noncommission position, she would have been able to sell merchandise. According to Guerra, Gore indicated he was aware of this fact, but that she was being terminated nevertheless. Gore asked Guerra to sign a statement that her sales were low and the employee refused. Padgett testified that when Guerra worked in the major appliance department her sales were low and her supervisor wanted to transfer her to the furniture depart- ment. According to Padgett, Guerra refused on the ground that the job in major appliances was a challenge. Two weeks later, however, Guerra came to Padgett and asked to be transferred to the furniture department and Padgett accommodated her request. Padgett further testi- fied that in February she was aware that Guerra was having problems meeting her sales standard in the furni- ture department. According to Padgett, she suggested to Guerra that the employee transfer to the cosmetic de- partment where the manager was anxious to have her as a noncommission salesperson. Padgett stated Guerra re- fused and indicated again that her job in the furniture de- partment was a challenge. Several weeks later, according to Padgett, Guerra confided that she was having person- al problems that interfered with her work. She asked to be allowed to remain in the furniture department in order to work her way through the problems. Padgett stated that Guerra was terminated on April 2 because she failed to meet the minimum sales requirements for two consecutive 4-week periods. According to Padgett, Guerra was not offered a position in a noncommission sales area because she had been offered opportunities to transfer in the past and had turned it down. She stated there was no opening suitable for Guerra at the time of the decision to discharge her. Hull recalled having a conversation with Guerra sev- eral weeks before she was terminated. She told him she was having family problems and that her sales were low. She stated she intended to improve her work and she was taking a Dale Carnegie course at school. Later, Guerra called Hull on the store telephone and asked if she could go into the display department. Hull stated he told Guerra he did not think there were any openings, but he would check with Padgett and Gore. According to Hull, he subsequently determined that there were no openings available in the display department. Rocha also testified concerning Guerra's request to go to the cos- metic department. According to Rocha, he stated that sometime in February, Guerra informed him that she had been asked to go to the cosmetic department but that she turned down the offer. Guerra told him she liked it better in the furniture department. Rocha also testified that on one occasion, he refused to let a salesman (Casso) in the furniture department assist Guerra in handling a prospective sale. According to Rocha, Guerra had been '" = MONTGOMERY WARD & CO. 153 in the department for approximately 4 months, and he felt she should be able to handle any sales on her own.44 Gore testified that in November 1979 he talked with Guerra and indicated to the employee that her perform- ance was borderline in the appliance department. Ac- cording to Gore, after she transferred to the furniture de- partment, he had occasion to speak to her again at the end of December regarding her low volume of sales. He stated Guerra agreed to try harder. Gore testified he counseled Guerra in January, February, and March about her poor sales performance. Gore further testified that when he terminated Guerra, he did so because of her inability to meet Respondent's minimum sales stand- ards. According to Gore, he terminated employees in the past when they failed to meet the sales requirements. He also stated there were no openings in the cosmetic de- partment at the time the decision was made to discharge Guerra. N. The Discharge of Enoc Zuniga Zuniga was employed as a commission salesperson in the carpet and floorcovering department. His manager was Oscar Palacios. Zuniga was a member of the union organizing committee and worked actively in soliciting employees to sign authorization cards for the Union. The record shows that in August 1979, Zuniga re- ceived a performance appraisal in which he was rated satisfactory by Palacios and considered "potentially pro- motable." (G.C. Exh. 134.) The only area in which Zuniga was considered below Respondent's standards was in the Point and Purchase solicitation of credit ac- counts (POPs). Zuniga also received a similar satisfac- tory rating in April 1980 and again, his only cited defi- ciency was in the POPs category. (GC. Exh. 135.) A week prior to the election on June 18, Zuniga was called into Gore's office about his failure to meet his draw for 4 consecutive weeks ending June 4. Zuniga was advised by Gore that if he failed to meet his draw for two consecutive 4-week periods or for three 4-week peri- ods in a year, he would be terminated. 45 Zuniga refused to sign the "Cancellation of Unearned Draw" form showing he had been counseled about his low volume of sales. (R. Exh 83.) Zuniga testified he refused to sign the document because he felt the sales in his department were generally low over that period of time and were beyond his control. Zuniga felt the position taken by Gore during the interview was unfair and he complained to Palacios. According to Ztmiga, Palacios stated Zuniga was a good worker and the department was experiencing low sales during that particular 4-week period. Palacios told Zuniga he would speak with Gore on Zuniga's behalf. 44 Casso testified this incident occurred in late March. Guerra had a customer who was interested in furniture that would have totaled ap- proximately $3500. Casso stated he went over to assist Guerra with the sale because of her inexpenence. Rocha stopped him and said that Guerra would have to handle the sale on her own. Guerra was unable to com- plete the sale because she could not answer all of the customer's ques- tions about the furniture. Casso asked Rocha why he was not allowed to help Guerra complete the sale Casso testified that Rocha said he did not want Guerra to make any sales. 45 In 1979, Gore had a sumlar interview with Zumga because of low sales. He told the employee at that time, if he failed to meet the sales standard over the prescnbed period of time, he would either be terminat- ed or transferred to a noncommissioned position. Zuniga went on vacation for a week on July 7. During this time, the Union sent the Respondent a letter in which Zuniga and several other employees were named as "in-store representatives" for the Union. (G.C. Exh. 136448 When Zuniga returned to work on July 15, he was called into Gore's office and advised that he had failed to meet his sales quota for the second consecutive 4-week period, ending July 2, (R. Exh. 84.) Zuniga was told by Gore that he would be terminated immediately. The employee asked that he be allowed to finish the week, but Gore refused this request.47 Palacios testified that while he was aware of Zuniga's activities on behalf of the Union, he never spoke to Gore about this. According to Palacios, the decision to termi- nate Zuniga rather than to transfer him to a noncommis- sion position was made by Gore and Palacios made no recommendation to Gore in this regard. 48 Palacios testi- fied that prior to Zuniga's termination, he had talked to the employee every week about his deficiencies in sales. He stated he went out into the field with Palacios to assist the employee when he called on potential custom- ers. Palacios further testified that he appraised Zuniga as a satisfactory employee in 1979 and again in 1980 be- cause he was doing "fairly well." However, Palacios in- dicated that he rated Zuniga potentially promotable be- cause he felt this was necessary to encourage the em- ployee to reach his real potential. 0. The Discharge of Del Castillo As noted, Del Castillo was the leading activist on behalf of the Union at the McAllen store. He had been employed by the Respondent since 1972, -when he started as a noncommission salesperson in the hardware depart- ment. Del Castillo became a commission salesperson in the TV and stereo department and subsequently was pro- moted to manager of that department. In 1976 he was transferred to the major appliance department as a com- mission salesperson under the supervision of Temo Gon- zalez. There is no question in the record that manage- ment's staff and supervisors became aware of Del Castil- lo's leading role in the union organizing campaign almost immediately after the first meeting with the union repre- sentatives on January 29. Del Castillo testified that when he was given his per- formance appraisal interview in February 1980, his de- partment manager rated him lower than in past years and did not follow the same procedures." Del Castillo's ap- 46 The other employees named in this letter were Carlos Molina, Lynda Rivera, Amelia Caro, Juan Torres, and Julian Garza. 47 Gore testified he terminated Zuniga because the employee failed to meet the Respondent's sales standards and did not go out and solicit sales from new buildings and installations or subdivisions. 48 Palacios stated that during his tenure as manager in the carpet and floorcovering department, no employee who had failed to meet the sales standards had ever been transferred to a noncommission position. ' 49 It was Respondent's policy to have a supervisor or department man- ager fill out the appraisal form and then give it to the employee to rate him or herself. Once this was done, they would discuss the differences and any areas the supervisor felt needed improvement. After this was completed, the appraisal would be sent to the store manager for his ap- proval and any additional comments. 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD praisals for the years 1977 through 1979 indicate that his immediate supervisors and the store management consid- ered him to be an above-average salesperson. The 1977 appraisal gave Del Castillo a composite rating of "nota- ble." This was one category below the top rating of "su- perior." (G.C. Exh. 210.) On both the 1978 and 1979 per- formance appraisals, Del Castillo was rated "above aver- age." (G.C. Exhs 211-212.) Again, this was one catego- ry below the top rating on the appraisal form. In each instance these appraisals were approved by Hull. Del Castillo testified that when Gonzalez gave him the appraisal form in 1980, it had not been filled out by the department manager. Del Castillo complained about this and refused to have the appraisal interview until Gonza- lez filled out the form and rated him Gonzalez then completed the form and Del Castillo signed the docu- ment. Although Gonzalez rated Del Castillo lower than he had in the 3 previous years, he nevertheless indicated that the employee was "satisfactory." (G.C. Exh 213.) When the appraisal form was given to Hull for approval, however, the store manager made several changes and downgraded the composite rating. In the area of solicit- ing new accounts at point of purchase (POPs), Gonzalez rated Del Castillo as meeting the quota and occasionally exceeding it; but inconsistent in soliciting new accounts. Hull changed this to "below standard." Hull also noted that Del Castillo's solicitation of service contracts was "unsatisfactory." The changes in the performance ap- praisal were never shown to Del Castillo and he was un- aware of them until the document was subpoenaed by the General Counsel for use in this proceeding. Hull tes- tified that after he made the changes on Del Castillo's performance appraisal, he sent the document back to the personnel office to be forwarded to the department head, who would then discuss the changes with Del Castillo. Hull admitted, however, that he did not discuss the changes with the employee nor did he discuss them with the department manager. Testimony and evidence was introduced by the Re- spondent to show that despite his "above average" rating, Del Castillo was not a satisfactory employee. Be- tween July 15, 1976, and February 28, 1980, Del Castillo received four policy exception notices and corrective interviews. (R. Exhs. 23, 26, 27, and 28.) In addition, he had corrective interviews with management in Novem- ber 1979 and March 1980 for failure to meet the pre- scribed quota of sales of service contracts. (R. Exhs 24 and 25.) Del Castillo was discharged by the Respondent on March 28 for improperly handling records of returns (RORs) when merchandise was returned by customers on an even exchange basis. Del Castillo was accused by the Respondent of completing the RORs in a fashion whereby he received a double commission; i.e., a com- mission on the original sale and a subsequent commission on the exchange item. The documentation reflecting these particular transactions was intorduced into evi- dence and reveals that each of the transactions occurred in the year 1979. Del Castillo testified the for nearly a year he had a constant disagreement with coworker Ramon Pruneda over the manner in which he (Del Castillo) made out RORs for even exchanges.50 According to Del Castillo, Pruneda insisted that Del Castillo was making out the RORs improperly. Pruneda claimed the number "9" was supposed to precede the salesperson's clock number to show that the commission was to be deducted on the item being returned. Then on the accompanying sales ticket where replacement item was being ordered, the salesperson would ring up his or her regular clock number preceded by, "9" in order to show credit for the commission. Thus, the ROR and the accompanying sales ticket constituted a bookkeeping entry to deduct a com- mission previously earned and to award the commission on the replacement item when there was an even ex- change. Del Castillo, on the other hand, took the posi- tion that all sales were final after 30 days. 51 Therefore, he did not put the prefix "9" before his clock number on RORs that involved an even exchange after 30 days. It was his view that the salesman making the original sale had to expend time and effort to work out the exchange item for the customer and, thus, was entitled to a com- mission on the exchange without losing the commission on the original sale. Del Castillo testified that he had always prepared his even exchange RORs in this fashion and that they had been approved by Gonzalez and a member of the staff. He stated that in late January 1980, however, he took an ROR to Gore for approval and Gore rejected it. Ac- cording to Del Castillo, Gore told him that he could not take a commission on the subsequent exchange and there- fore he was required to place a prefix "9" on the ROR before his clock number. Del Castillo replied, "Okay, if that's the way you want it, that will be fine; no problem whatsoever." Del Castillo further testified that after this incident in January, he never prepared RORs contrary to the instructions given by Gore. On March 26 Del Castillo was called in by Donald Harrison, a field security officer from Respondent's re- gional office in Dallas, and questioned about a series of RORs involving transactions that occurred in 1979. Del Castillo sold a customer a refrigerator in February 1979 and it was returned the following September and ex- changed for another refrigerator. Del Castillo filled out an ROR (G.C. Exh 204) to authorize the return of the item and a sales ticket (G.C. Exh. 205) for the replace- ment item. Del Castillo did not place the prefix "9" before his clock number on the ROR, but did so on the sales ticket for the replacement refrigerator. The second transaction involved the sale of a freezer on January 26, 1977. The ROR indicated that this item was returned on May 11, 1979, because it had not been working properly and had been in the Respondent's service department over a long period of time. (G.C. Exh 206.) Again, Del Castillo did not place the prefix before his clock number 50 When RORs were prepared by salespersons, they were kept in an open box in the department until processed Thus, they were available for examination by anyone in the department Once an ROR was made out by a salesperson, it first had to be approved by the department manager and then by the operatmg manager or the store manager. 51 Normally, all sales on "big ticket" items are final after 30 days If the customer returned the item after that time and canceled the sale, it is considered due to a defect in the manufacture of the item and the sales- person would not lose the commission MONTGOMERY WARD & CO. 155 on the ROR, but did so on the 'accompanying sales ticket. (G.C. Exh. r 207.) Thus, he received a commission on the original sale and on the replacement item. The third transaction related to the sale of a washer on Feb- ruary 29, 1979. It was replaced on an even exchange basis on May 4, 1979. Consistent with his practice, Del Castillo left the prefix "9" off of the ROR (G.C. Exh. 208) and received a commission on the replacement washer (G.C. Exh. 209). Del Castillo testified he was questioned about these transactions by Harrison and Villarreal and asked about his understanding of how to prepare RORs for even ex- changes. He told them that because all sales were final after 30 days, he was entitled to the commission on the original sale and on the replacement item involved in each of the transactions in question. 52 Del Castillo stated he was accused of preparing the RORs so that he could claim a double commission. He responded that the RORs in question had been approved by both his department manager and by Gore. On March 29 Hull called Del Castillo into his office. Gore and Temo Gonzalez were there. Hull told Del Cas- tillo that because of the investigation into the employee's preparation of RORs, he was going to have to terminate him. Del Castillo protested and stated all of his RORs had been approved by Gonzalez and Gore when they were written. Del Castillo testified that Hull asked him to sign certain papers relating to his termination and the Lmployee insisted that he wanted the reasons for his ter- mination to be put into writing. Hull refused to do this and Del Castillo in turn refused to sign the papers as re- quested by Hull. Del Castillo's discount card was picked up by Gore, and Hull told Del Castillo he did not want to see him in the store. Gonzalez testified that sometime during the first part of March he overheard Del Castillo and Pruneda in a heated discussion. According to Gonzalez, Del Castillo told Pruneda to keep his mouth shut. When Gonzalez asked Pruneda about the conversation, Pruneda informed him that Del Castillo had been filling out RORs incor- rectly and receiving a commission on the returned mer- chandise. He stated that Pruneda showed him an ROR that had been filled out by Del Castillo and he then began an investigation of all of Del Castillo's RORs. Gonzalez testified that until his conversation with Prun- eda, he had not been aware of the manner in which Del Castillo was writing up the RORs. Gonzalez testified that as a result of his research of the RORs completed by Del Castillo, he went to Gore and told him Del Cas- tillo was writing up the RORs to receive double commis- sions. Gonzalez also testified that, from time to time, man- agement issued written instructions to the sales personnel advising them how to correctly fill out RORs; whether it was for an even exchange, a cancellation of a sale, or an uneven exchange. According to Gonzalez, whenever such instructions were issued, he would circulate them among the salespersons in his department and go over the procedures with them at the weekly sales meetings 52 Del Castillo did not mention to Harrison or Villarreal the mstruc- tuons he received from Gore in late January. that he conducted. Exhibits were introduced by the Re- spondent relating to the procedures br filling out RORs that had been published by various members of staff over a period of years, and Gonzalez testified that he had cov- ered their contents with the employees on receiving them from management. (See R. Exhs 75, 76, and 77.) In one instance, instructions were issued in April 1977 by Padgett (whose last name was then Douglas) relating to sales cancellations and refunds. The employees, including Del Castillo, signed the bottom of the covering memo to indicate that they had read the information contained in the document. (See G.C. Exh. 31.) Hull testified that in late January, Gonzalez gave him an ROR that had been filled out by Del Castillo that in- dicated the employee was receiving a double commission on an even exchange. According to Hull, he directed Villarreal to search through all of the RORs issued and report back to him. 53 He stated that Villarreal subse- quently came to him and indicated that he was going to have to notify the regional security office of the situation because he discovered several other RORs issued by Del Castillo that contained the same violation of company policy. Harrison, the field security officer, stated he checked with Villarreal when he came to the store on March 26. According to Harrison, this was the normal procedure in order to get a complete background report on an em- ployee before commencing the investigation. He and Vil- larreal researched all the RORs prepared by Del Castillo as well as the RORs prepared by other commission sales- persons in the major appliance and TV and stereo de- partments. According to Harrison, they determined that the RORs prepared by Del Castillo were the only ones in the group that allowed the salesperson to receive a commission on the initial item sold and on the replace- ment item. Harrison admitted that in talking with Villar- real, he was informed about Del Castillo's leadership role in the union organizing campaign in the store. Harrison indicated this in his investigative notes by putting down the following comment: Del Castillo is one of several employees who have been actively involved in union activity and at- tempted organization. Harrison interviewed Del Castillo and the employee ac- knowledged that he had omitted the "9" on the RORs that involved exchanges after 30 days. Harrison testified that on March 26, after completing his investigation, he recommended to Hull that Del Castillo be terminated for violating company policy. They placed a call to the re- gional security officer and he was informed of the rec- ommendation. Although the regional security officer agreed, he directed Harrison and Hull not to do anything until the regional staff had an opportunity to consult with Paul Perez. The following day Perez called and ap- proved the termination of Del Castillo. Hull testified that once the decision was made by the regional personnel, he no longer had any control over 53 Villarreal testified Hull gave him the Del Castillo ROR on March 19 or 20 It was then that he began the investigation 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the matter. He stated that he informed Del Castillo on March 28 that he was being terminated and asked the employee to sign his retirement papers in order to expe- dite payment of his money. Del Castillo refused to sign these documents. P. The Cast-A-Ballot Sweepstakes On the day of the election, the Respondent conducted a cast-a-ballot sweepstake (CABS) among the employees. For several weeks before the election the employees re- ceived notices in their pay envelopes calling their atten- tion to CABS without identifying what it was. (See G.C. Exh. 8.) One week before the election, the employees re- ceived printed information explaining that CABS was a sweepstake and the purpose to encourage all of the em- ployees to vote in the election. (See G.C. Exh 10.) The Respondent clothed two mannequins, one male and one female, with various items of Respondent's merchandise and placed a sign under each indicating that the total value of the merchandise was in excess of $300. This was purported to equal the amount of union dues each em- ployee would be required to pay over a 3-year period. Shortly before the election, Hull conducted a meeting with the employees in which he reviewed the rules of how the sweepstakes would be run. According to the instructions, the employees were to receive a sweepstake ticket from their supervisors or de- partment managers prior to being released to go to vote in the Board election. 54 Each employee was to place their name and department number on the sweepstake ticket and after voting, place the ticket in a box that was located in the front of the store. A drawing was to be held the following day to select the winner. Yolanda Alvarado testified that when her department manager, Moreno, gave her the sweepstake ticket to fill out, he said it was needed to vote in the election. Ac- cording to Alvarado, Moreno stated that she had to fill out the ticket and place it inside a ballot box. Alvarado did not participate in the sweepstakes. The following day a drawing was held in Padgett's office and employee Vicki Garza was declared the winner and awarded the prize. Padgett testified that after the winning name was drawn, she took the box that contained all of the other entries and put it in the store incinerator. According to Padgett, none of the other names were ever removed from the box. Hull testified that he did not review any of the other entries in the box before it was destroyed. Q. The Composition of the Bargaining Unit The parties agreed on the appropriate bargaining unit, but were in disagreement over whether several employ- ees should be included in the unit. The agreed-on unit is as follows: All regular full-time and regular part-time employ- ees employed at the Montgomery Ward retail facili- ties located at El Centro Mall and its warehouse fa- cility at 600 North Jackson, located in Pharr, Texas, 54 The Board election was conducted in the Respondent's training room that was located in the rear of the store. excluding all other employees, guards, watchmen, and supervisors as defined in the Act. The General Counsel introduced a list into evidence, compiled from records provided by the Respondent, set- ting forth the work force as of April 10. The parties stip- ulated that the names of four of our employees were to be added to this list, bringing the total employee comple- ment to 283. These four employees were Fernando Enri- quez, Maria Alicia Garza, Yolanda Espinosa, and Evan- gelina Melchor. 5 5 In addition, the General Counsel contends that the names of Javier Del Castillo, Baldemar Flores, Reynaldo Gonzalez, and Mary Guerra should have been included on the list, since they were unlawful dischargees. 56 The General Counsel further contends that two employees, Maria De La Fuente and Blanca Guerrero, were casual employees who should be excluded from the unit and two others, Delia Flores and Ernestina Hernandez, were confidential employees who likewise should be excluded. The facts relating to these four employees are as follows: 1. Maria De La Fuente is a part-time employee work- ing approximately 20 hours a week. She conducts cake decorating demonstrations in the store and also teaches classes on the subject to groups of customers who sign up for them. De La Fuente has a full-time job with the local school district as a teacher's aide and a cake deco- rator instructor. When De La Fuente was hired, she filled out one of Respondent's employment applications and was inter- viewed by Padgett. De La Fuente is paid $3.50 an hour for demonstrations and $7 an hour when she conducts classes in the store. She is required to punch a timeclock and is paid by the Respondent by check on a weekly basis, as are all the other employees. The materials and supplies used for the cake decorating demonstrations and classes are products sold in Respondent's housewares de- partment. Whenever customers or students want to pur- chase supplies, De La Fuente refers them to the housewares department. The manufacturer of these sup- plies (Wilton) has an arrangement with the Respondent whereby the Respondent is reimbursed a portion of De La Fuente's salary based on a percentage of the Wilton products sold in the store. However, Wilton makes no direct payments to De La Fuente. Her salary is paid by Respondent's check and Federal income and social secu- rity taxes are deducted. De La Fuente also receives an employee discount for merchandise she purchases from the Respondent, and gets paid holidays and accrues paid vacation time. Padgett testified that De La Fuente is en- titled to participate in the Respondent's retirement pro- gram, provided she works a certain number of hours during the course of a year. De La Fuente reports to a supervisor in the housewares department and receives annual performance appraisals from this individual. 55 It was also stipulated that three employees were terminated between April 10 and 30 and, therefore, were not included in the unit as of the latter date The employees in this group were Albert Rodriquez, Olga Rodriguez, and Gilberto Moreno 56 The question of whether the discharges of these employees violated the Act is treated in the section entitled "Concluding Findings," infra. MONTGOMERY WARD & CO. 157 , 2. Blanca Guerrero began working for the Respondent in December 1979, on a part-time basis until she quit in June 1980. She was employed as a microwave demon- strator in the major appliance department and reported directly to Temo Gonzalez. Guerrero was a full-time teacher of home economics in the local school district. Guerrero made application for employment with the Re- spondent and was interviewed by Padgett. She was told she would work between 4 and 12 hours a week giving demonstrations and conducting classes in the use of microwave ovens. Like De La Fuente, Guerrero re- ceived the standard employee discount and was paid weekly by check. When customers attending her classes or demonstrations sought to purchase microwaves, Guer- rero referred them to salespersons in the major appliance department. Guerrero punched a timeclock and worked under the direct supervision of Gonzalez. She also re- ceived performance appraisals from Gonzalez. 3. Ernestina Hernandez is the detail clerk in Respond- ent's administrative office. Her duties include opening and stamping all mail that comes into the store, operating the store switchboard, typing reports for the manage- ment staff and department managers, and setting up meetings for the staff. Her immediate supervisor is Fred Hull, the store manager. In addition to these duties, Her- nandez files all of Hull's correspondence and the forms he is required to submit weekly to the district office. She also types all of Hull's correspondence. Hernandez' desk is located in front of Hull's office in the open area where all the office clerical personnel of the store sit. 4. Delia Flores is classified as a personnel clerk and re- ports directly to Padgett. Her duties include the filing and handling of employee compensation claims. Flores takes all new applications for employment before submit- ting them to Padgett and examines them to make sure the applicants have properly completed the forms. How- ever, Flores makes no recommendations to Padgett re- garding the applications; she is merely the conduit by which the applications are passed on to the personnel manager. She has access to the personnel files, which are contained in Padgett's office. Periodically, she is respon- sible for filing documents in these files. The key to the personnel files is kept in Padgett's desk and Ronnbeck, the payroll clerk, has equal access to the files." Flores is also responsible for seeing that the performance appraisal forms for employees are sent to the various department / managers and supervisors on a timely basis. She merely inserts the names and the dates of hire on the forms and forwards them to the supervisors for completion. When the forms are returned to Flores, she updates the infor- mation on service record cards of the employees being appraised and then gives the forms to the store manager for his final action. R. The Authorization Cards In support of the contention that the Union had valid signed authorization cards from a majority of the unit employees at the time of the demand on April 10, the General Counsel introduced 162 authorization cards into 57 The General Counsel does not contend that Ronnbeck should be ex- cluded from the unit evidence. The parties are agreed that on April 10 there were 283 employees in the unit and that on April 30, there were 281 employees. The Respondent poses multi- ple objections to 65 of the authorization cards submitted. Although the objections are broken down into specific categories, many of the cards are objected to for more than one reason. Only those cards specifically contested by the Respondent will be treated here and all others will be considered valid designations for representation by the Union. For convenience, the cards will be treated seriatim: Porfirio Cabello—card signed March 19 (G.C. Exh. 12): This card was identified by Union Representative John- son who testified she gave Cabello the card in the mall parking lot or in the Buffeteria. Johnson stated when she solicited employee signatures, she told them that by sign- ing the card, they were authorizing the Union to repre- sent them in negotiations for a contract with Respond- ent. Cabello, on the other hand, testified he was told that he would be placed on a mailing list in order to receive further information about the Union. He stated he signed the card without reading it. Cabello had no difficulty speaking in English and there is no indication in the record that he had any difficulty reading the English lan- guage. I do not credit Cabello in that he was told the only purpose of the card was to be placed on a mailing list. Rather, I credit Johnson's testimony that during all of her solicitations she informed the employees they were authorizing the Union to represent them by signing the card. There is nothing in the circumstances of this solici- tation which warrant the finding that Johnson's represen- tations cancelled out the clear language contained on the face of the authorization card. Therefore, I find this card to be a valid designation executed by Cabello. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Cliff Lamping—card signed April 2 (G.C. Exh. 17): Johnson testified Lamping came up to her in the mall parking lot and requested a card. He stated he formerly belonged to a union and knew about the purpose for signing authorization cards. Lamping testified, however, that he was told the sole purpose of the card was to get further information about the Union. Lamping admitted he belonged to a union when he worked in Illinois, but he denied making any statements to this effect to John- son at the time he received the authorization card. He also indicated he did not read the card before signing it. I do not credit Lamping's testimony regarding the cir- cumstances surrounding his signing this authorization card. His admission that he had previously belonged to a union gives credence to the testimony of Johnson that he indicated he already knew the purpose of union authori- zation cards. As the Supreme Court stated in Gissel, "em- ployees are more likely than not, many months after a card drive and in response to questions where company counsel, to give testimony damaging to the Union, par- ticularly where company officials have previously threat- ened reprisals for union activity in violation of § 8(a)(1)." (395 U.S. at 608.) Having discredited Lamp- ing, I find that his card is a valid designation of the Union as his bargaining representative. 158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Juan Gonzalez Jr.—card signed January 29 (G.C. Exh 23): Gonzalez signed the authorization card at the meet- ing held at the Hilton Inn on January 29. This was the occasion when Union Representative Guardiola first spoke with the employees brought together by Del Cas- tillo. Guardiola explained to the employees attending the meeting that the authorization card was the first step to enable the Union to represent them for better wages and benefits and if enough cards were signed, they would be able to have an election at the store. Gonzalez testified he had the card in his possession for 15 minutes before signing it. Gonzalez was also one of the employee sup- porters of the Union and was active in his department in soliciting signatures of his coworkers. I find nothing in these circumstances to indicate that Gonzalez did not intend to authorize the Union to represent him when he signed the authorization card. None of the representa- tions at the union meeting indicate otherwise. Hence, I find Gonzalez' card to be a valid designation of the Union as his bargaining representative. Eugenio Munguia—card signed February 28 (G.C. Exh 29): Munguia testified he received the authorization card from a coworker. He stated he was asked to sign the card if he wanted more information on the Union and if he wanted to be represented by the Union. Munguia had the card solicitor fill out all the information for him and he then signed the card. In these circumstances, it is clear that Munguia was designating the Union as his bar- gaining representative when he executed the card. Benjamin Arrendondo Jr.—card signed April 5 (G.C. Exh. 30): Arrendondo testified he received his card from a fellow worker in the Buffeteria. According to Arren- dondo he was told the card was to get some are from the Union to come and talk to the employees, Arren- dondo read the card before signing it. I do not find any- thing in this card solicitor's statement to indicate that the express authorization contained on the card had been abandoned or ignored. Nothing contained in Arrendon- do's testimony indicated that the solicitor made an effort to contradict or misstate the card's purpose. Hedstrom Co., 223 NLRB 1409 (1976). He read the card, and since nothing was stated by the solicitor that cancelled the ex- plicit authorization, I find that Arrendondo executed a valid authorization card. Salvador Maldonado—card signed January 30 (G.C. Exh. 41): The card bearing Maldonado's signature was dated January 30. Molina testified that Maldonado did not write well in English and therefore Molina filled in portions of the card and Maldonado signed it. The card was given to Del Castillo who then filled in Maldonado's home address and dated the card. Maldonado, on the other hand, testified he was in the hospital on the date the card was purportedly signed. He was there for a hernia operation due to a job-related injury. Maldonado was in the hospital for several days and spent several weeks thereafter recuperating. He acknowledged the card contained his signature, but denied filling in any of the other information on the card. According to Maldon- ado, several weeks after his operation, he came to the store and Molina showed him a union authorization card. Maldonado was unable to recall any of the circumstances under which he signed the card, although he stated he probably received the card from Molina at that time. In view of Maldonado's testimony, I find his card to be a valid designation of the Union as his bargaining rep- resentative. Although the card was obviously misdated, it is evident from Maldonado's testimony that he ap- peared at the store sometime during the latter part of February and that he did indeed sign the authorization card. Furthermore, this occurred prior to the date of the Union's demand on April 10. In these circumstances, I fmd Maldonado's card should be counted toward the Union's majority status. J. P. Stevens & Co., 247 NLRB 420 (1980). Juan Villarreal—card signed January 30 (G.C. Exh 43): Molina identified Villarreal's card. He stated he gave the card to Villarreal in the store. According to Molina, he translated the language contained on the card because Villarreal could not speak or read English. According to Molina, Villarreal dated the card and signed it. Villar- real, on the other hand, testified he received the card from Rudy Cerda. Villarreal stated he was told by Cerda that the card was to get better benefits by having the Union represent him Villarreal did not sign the card im- mediately, but kept it several days before signing. In these circumstances, it is evident that the explicit authorization purpose of the card was explained to Vil- larreal, whether by Molina or by Cerda. The purpose of the card having been fully communicated to Villarreal in his native language, and in the absence of any contrary evidence that the employee did not have an opportunity to understand the nature of what he was signing, his card must be considered as a valid designation of the Union as his representative. Sons Souci Restaurant, 235 NLRB 604 (1978); Toltec Metals, 201 NLRB 952, 955 (1973), affd. 490 F.2d 1122 (3d Cir. 1974). - Rogelio Aleniz—card signed May 6 (G.C. Exh. 46): The Respondent objects to this card on the ground that it is dated after April 10, the date of the union demand for recognition. This card was identified by Lynda Rivera who testified she gave the authorization card to Aleniz. She stated subsequently returned the card to her after having filled out and signed it. Although this card may not be counted in terms of the Union's majority status on April 10, it is, nevertheless, a valid authorization card as of the date appearing on its face. Hilda Valera—card signed January 31 (G.C. Exh. 55): Valera received her authorization card from Lynda Rivera in the stockroom at the Respondent's store. Rivera testified that Valera filled out the card and re- turned it to her. According to Valera, she was told at the time she received that card that the solicitors were trying to get enough signatures to have an election. Al- though Valera admitted reading the card, she claimed she did not specifically read the language that authorized the Union to be the collective-bargaining representative of the card signer. She acknowledged that Rivera told her the employees would receive better insurance bene- fits if they were represented by the Union. I find nothing in the statements by Rivera that would render this card invalid. Amber Delivery Service, 250 NLRB 63 (1980). Considering the fact that Valera admitted reading the MONTGOMERY WARD & CO. 159 card and that the statements made to her also indicated the employees would receive better benefits if they were represented by the Union, I find nothing that contradicts the unambiguous language on the face of the card. Jackie Wisdom—card signed January 30 (G.C. Exh. 56); Lynda Rivera solicited Wisdom's signature on an author- ization card in the early part of the organizing campaign. Wisdom took the card and later returned it to Rivera after having signed it. Nothing was stated by Rivera to Wisdom concerning the purpose of the card at the time of the solicitation. Although Wisdom filled out all of the information on the card, she testified she did not read the card before signing it Wisdom subsequently became a leader of the antiunion group among the employees and went to Rivera to ask for the return of her card. Rivera informed Wisdom the card had been turned into Del Castillo for submission to the Union. On April 29 Wisdom wrote a letter to the Union requesting the return of her card. In the above circumstances, I find that Wisdom did not effectively revoke her authorization. The Board has held that employees can validly revoke their authoriza- tions by seeking the person who solicited their signatures and asking that their cards be returned. However, where the employer has engaged in coercive conduct designed to undermine union support, the Board presumes that revocation is the result of the employer's unlawful con- duct and any attempt at revocation thereafter is ineffec- tive. Warehouse Groceries Management, 254 NLRB 252 (1981). Here, Wisdom did not seek to revoke her authori- zation card until well after the Respondent had engaged in numerous and extensive unfair labor practices involv- ing surveillance, threats, unlawful interrogation and dis- cipline, and discharges of union supporters. It is more than apparent that the Respondent's coercive conduct was well under way at the time that Wisdom asked for the return of her authorization card. In these circum- stances, I find that Wisdom's revocation of her authori- zation card was not effective, and that her card will be counted. Francisca Borello—card signed April 5 (G.C. Exh 58): Botello was given a card by Amelia Caro in the shipping center mall. Botello does not read or speak English. She testified that Caro translated the card in Spanish to her and explained that it was for better benefits, higher wages, and greater job security. Botello testified she was in agreement with the things the Union was seeking for the employees and she signed the card. In these circumstances, it is clear that Botello under- stood the purpose of the card was to authorize the Union to represent her for the things that Caro indicated. There is no indication that Botello 'was misled regarding the purpose of the card. Indeed, from her testimony, there is every indication that she fully understood she was desig- nating the Union to represent her when she signed the card. Therefore, I find that Bo tello's card counts toward the Union's majority status. Sans Souci Restaurant, supra. Yolanda Garza—card signed April 16 (G.C. Exh 61): The sole objection to this card is that it is dated April 16-6 days after the date on which the Union made its demand for recognition. Although this card may not be counted toward the Union's majority status as of the date of the recognition demand, it is nevertheless a valid card as of the date it was executed. Dora Elia Munoz—card signed April 11 (G.C. Exh. 63): This card is also objected to by the Respondent because it bears a date after April 10. As in the case of Garza, this card is a valid designation of the-Union as bargain- ing representative on the date it was executed. Porfirio Navarro—card signed April 4 (G.C. Exh 64): This employee received his card from Amelia Caro, who testified she filled out all the information on the card and the employee signed it. Navarro testified that Caro said the purpose of the card was to enable the Union to come in and represent the employees after a vote. Navarro ac- knowledged that he read the card before signing it. I find nothing in this solicitation which renders the ex- press language of the card invalid. As the Board stated in a recent case citing its prior decision in Levi Strauss & Co., 172 NLRB 732, 733 (1968), "a statement that an election is contemplated, or that a purpose of the card is to make an election possible, is insufficient in itself to render invalid an unambiguously worded card."58 Herminio Orosco—card signed April 5 (G.C. Exh 65): Caro testified that she filled out the information on the authorization card and Orosco signed it. Orosco, on the other hand, testified that "an American lady" ap- proached him as he was leaving work and gave him the card so he could sign it. He stated that when he in- formed the solicitor he did not speak or write English, she began to speak to him in Spanish He testified the so- licitor did not explain anything to him about the card, but told him she would talk with him later because he was in a hurry to go home. Orosco stated he never saw the card solicitor again nor did he receive any informa- tion from her. Caro was not recalled to refute any of the testimony given by Orosco. In these circumstances, it cannot be said that the pur- pose of the card was ever truly communicated to Orosco. He credibly testified that the solicitor indicated she would speak to him later regarding the use to which the card was to be put. I find, therefore, that Orosco's card is not a valid designation of the Union as his repre- sentative and cannot be counted toward establishing the Union's majority status. Aida Rodriguez—card signed April 24 (G.C. Exh. 67): The only objection to this card is that it bears a date in April after the demand made by the Union. The card was authenticated by Caro who stated that the employee signed it after Caro filled it out for her. Since the card was executed on April 24, it cannot be counted toward the Union's majority status as of the date of the demand, but is a valid authorization card as of the date it was exe- cuted. Yvonne Trevino—card signed February 9 (G.C. Exh. 71): Trevino testified she was given a card by a cowork- er. She stated that she was informed the card was to "bring the Union in" and "to get information on the Union." Trevino testified she read the card before filling it out. 58 Amber Delivery Service, supra at 65. 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is apparent that the representations made by the card solicitor to Trevino were not inconsistent with the purpose stated on the face of the card. Indeed, one of the reasons stated was "to bring the Union in." Because the employee read the unambiguous statement on the face of the card and because the representations were not con- trary to that statement, I find her card to be a valid au- thorization for the Union to represent her. Sylvia Perez—card signed January 31 (G.C. Exh. 84): Yolanda Alvarado testified that she gave Perez an au- thorization card in the Buffeteria and told the employee that signatures were needed in order to organize a union in the store. According to Alvarado, she also told Perez that a certain number of votes were necessary in order to get the Union to represent the employees. Alvarado stated Perez took the card and returned it to Amelia Caro at a later date. Perez, on the other hand, denied she received the card from Alvarado. Perez stated she was given the card by Arturo Tristan, who told her that by signing the card she would receive further information about the Union. Perez stated she took the card home but did not read it. Tristan gave her a second card at a later date and she signed it. Perez also testified that while her card was dated January 31, the date of the union meeting at the Hilton, she did not attend this meet- ing. I credit Perez' testimony that she received the card from Tristan rather than Alvarado. Tristan was not called to testify concerning the solicitation and on the basis of the testimony of Perez, she was told that the card was for the purpose of getting more information re- garding the Union. However, I do not credit Perez' testi- mony that she did not read the card after she was given the first one by Tristan. Nor do I find Tristan's statement that the card was to get more information rendered in- valid the express authorization for representation con- tained on the face of the card. There is no evidence here that Tristan sought to misrepresent the purpose of the card or that he indicated she should disregard the ex- press language on the card. For this reason I fmd the statements made by this solicitor do not vitiate the validi- ty of the card signed by Perez and that it counts towards the Union's majority status. Hilda Rivera—card signed April 5 (G.C. Exh. 86): Al- varado testified that she gave Rivera an authorization card in the restroom of the store. According to Alvara- do, she asked Rivera to sign the card, if she wanted to be represented by the Union. Contrary to Alvarado's testi- mony, Rivera stated she was told the only purpose of the card was to get information regarding the Union and to secure enough signatures to have an election so that the employees could determine whether they wanted to be represented by the Union. She also testified she did not read the card before signing it. On cross-examination, Rivera admitted that no one told her the purpose of the card was to get information about the Union, but she thought this was the purpose. She also admitted on cross-examination that she did not read the card because she was aware that it was a union authorization card. In view of Rivera's willingness to indicate that the so- licitor had stated the card was for the purpose of getting information, when in fact this was her subjective under- standing, I do not credit her testimony that Alvarado represented the purpose of the card to be other than that which was stated on its face. Furthermore, in the cir- cumstances here, I find that Rivera was well aware that the card was for the purpose of authorizing the Union to represent her when she signed it, and her testimony at the hearing was not an accurate account of the circum- stances under which her signature was solicited. For these reasons, I find that Rivera executed a valid authori- zation card that is to be counted toward the Union's ma- jority status. NLRB v. WKRG-TV, Inc., 470 F.2d 1302 (5th Cir. 1973), enfg. 190 NLRB 174 (1971). Richard Canales—card signed February 9 (G.C. Exh. 88): Canales received a card from a coworker. Canales testified he was told by the solicitor that a certain per- centage of signatures were needed and that if the Union came in, the employees would get more raises and bene- fits. On cross-examination by Respondent, Canales stated he was told the only purpose of the cards was to get an election. Canales also denied reading the card before signing it, but subsequently acknowledged that he read "portions of the card" in order to fill in the required in- formation. It is apparent from Canales' testimony that he read the card before signing it, although he attempted to try to convey the impression that he limited his reading to se- lective portions of the card. As the Supreme Court said in Gissel, supra, "employees should be bound by the clear language of what they sign unless that language is deliberately and clearly cancelled by a union adherent with words calculated to direct the signer to disregard or forget the language above his signature." From Can- ales' own testimony, the solicitor stated that a number of signatures were needed in order to get better benefits and raises for the employees. There was nothing con- tained in this representation that was contrary to the stated authorization for representation contained on the face of the card. The efforts of Canales to show other- wise are simply not worthy of belief. Therefore, the card of Canales will be counted toward the Union's majority status. Evelia Garcia—card signed April 4 (G.C. Exh. 91): Maria Garcia solicited this employee's signature on an authorization card. Because Evelia could not speak or read English, Maria explained the purpose of the card to her in Spanish. Evelia testified that she was solicited sev- eral times by Maria before signing an authorization card. She was told it was for the Union and it was something good for the employees. When Evelia decided to sign the card, she put her signature and her address and phone number on the card and authorized Maria to fill out the balance of the information. In the totality of the circumstances, it is more than evident that the purpose of the card was fully communi- cated to Evelia. Respondent's sole objection, which rests on the fact that Evelia was a non-English-speaking em- ployee, is without merit. Accordingly, I find that Evelia executed the authorization card for the purpose of au- thorizing the Union to represent her and her card is valid. Sans Souci Restaurant, supra. MONTGOMERY WARD & CO. 161 Annette Mueller—card signed April 4 (G.C. Exh. 110): Mary Guerra testified she gave Mueller a card in the parking lot. She stated Mueller signed the card and re- turned it to her. However, Mueller denied she received the card from Guerra. According to Mueller, she re- ceived the card from Lillie Rodriguez and was told the card was to get more information about the Union. Mueller, who became a member of the antiunion com- mittee, admitted on cross-examination that prior to sign- ing the card, she only read portions necessary to fill in the required information. Mueller denied reading the portion that authorized the Union to be her representa- tive. Guerra was not recalled to rebut Mueller's testimo- ny nor was Rodriguez called on to testify regarding the circumstances under which the card was solicited. Therefore, Mueller's testimony is credited. But even ac- cepting the circumstances described by Mueller, it is clear that she was seeking to avoid responsibility for signing the authorization card by claiming that she only read selective portions and did not read the authorizing language. Having viewed the cards, I find this difficult to accept and, indeed, note that this was the litany recit- ed by many of the card signers who sought to disassoci- ate themselves from the cards at the hearing. Assuming that Rodriguez did give the card to Mueller and told Mueller that its purpose was to get more information re- garding the Union, I find that such a representation, if made, was not sufficient to render invalid the unambig- uous wording on the card. In these circumstances, I do not find that the card was represented to be exclusively for the purpose of securing information on the Union. Accordingly, I find that Mueller's card should be count- ed toward the Union's majority status. Amanda Ledesma—card signed April 28 G.C. Exh. 114): This card was authenticated on the testimony of Guerra. She stated the employee signed the card and re- turned it to her in the parking lot. Respondent's sole ob- jection to this card is that it is dated April 28. As in the case of other cards bearing dates after April 10, I find that this card cannot be counted toward the Union's ma- jority status on the demand date, but find it to be a valid card as of the date on which it was executed. Alma Garcia—card signed March 25 (G.C. Exh. 118): Guerra gave the authorization card to this employee in the parking lot. After filling out the card, Garcia gave it to either Caro or Maria Garcia. Alma Garcia testified she was told the purpose of the card was to enable her to get more information about the Union so she could make up her mind at the time of the election. She ac- knowledged, on cross-examination by the General Coun- sel, however, that she had attended a union meeting at Cairo's home and was given a card at that time. She also stated that she was informed the Union would represent the employees and try to get them better wages. In the totality of the circumstances surrounding Gar- cia's signing of the authorization card, I find it to be a valid designation of the Union to be her representative. She attended a meeting in Caro's home prior to signing the card and had been told that the Union would repre- sent the employees and attempt to get them better wages. That she may also may have been told she would receive more information on the Union, so she could make up her mind at the time of the election, does not clearly cancel the explicit language of the authorization card. This latter representation did not render the card invalid because this was not indicated to be the sole pur- pose of the card, no was it inconsistent with the unam- biguous language on the card. Peter Brown—card signed April 4 (G.C. Exh 120); Guerra testified she asked Brown to sign an authoriza- tion card in the mall, when she and a number of other union supporters were soliciting employee signatures. Guerra observed Brown fill out a card and return it to Del Castillo. Brown testified that he did not read the card although he filled out all of the information re- quired on the card. He also testified that at the time he was being solicited, he was told that a number of signa- tures were needed in order to have an election. He ad- mitted he was told of the benefits the employees would receive through union representation during the solicita- tion. On the strength of Brown's own testimony, it cannot be said that he was told the sole purpose of the card was to get an election or that he should disregard the lan- guage contained on the card. In addition, Brown's will- ingness to attempt to convey the impression that he failed to read the entire card, although he filled it in toto, gives rise to a strong inference that he was seeking to avoid any responsibility for what he knowingly signed. Accordingly, I find that Brown is bound by the language contained on the card because it was not in any way ne- gated by representations made to him at the time of the solicitation. Gissel Packing Co., supra; Levi Strauss & Co., supra. Francisco Rivera—card signed February 16 (G.C. Exh 124):Rivera testified he received his authorization card from Juan Gonzalez Jr. According to Rivera, Gonzalez stated the union supporters needed enough signatures to have a fair election. He also told Rivera that he did not have to belong to the Union, even if the employees voted it in. In the absence of any testimony from the card solici- tor, it is evident that Rivera was told the sole purpose of the card was to have an election. In my judgment, this clearly canceled the express language contained on the authorization card and I find that Rivera's card was not a valid designation of the Union as his representative. Rudolfo Curiel—card signed February 16 (G.C. Exh. 125):This employee identified his own card. He stated he received it from Carlos Molina and read the card before signing it. According to Curiel, Molina stated that if enough signatures were secured, a union representative would come and hold a meeting about the benefits the Union would offer the employees. Respondent objects to this card on the grounds that it was secured solely for the purpose of getting further information. Curiel read the card before signing it and it was clear that the unambiguous language authorizing the Union to represent the card signer was not canceled by Molina's representation that a person from the Union would come and speak to the employees about the benefits the Union was seeking in their behalf. It was never suggested that the only purpose of the card was to get further informa-, 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion and that Curie! should ignore the authorizing lan- guage contained on the card. In these circumstances I find that Curiel's card is valid and should count toward the Union's majority status. Raul Gonzalez—card signed February 15 (G.C. Exh 126): This card was authenticated by the card signer. He testified he received the authorization card from Gilberto Martinez. At the time he was given the card, Martinez informed him that the employees were trying to organize the Union and needed signatures so they could have an election. Based on this testimony by the card signer, I fmd there, was nothing stated that could be construed as represent- ing that the sole purpose of the card was to get an elec- tion. The representations did not contradict the unambig; uous authorization contained on the face of the card and I find this card to be a valid authorization for the Union to represent the employee. I fmd this to be true even though the employee was told that signatures were needed in order to obtain an election. Nothing was indi- cated to the employee that this was the sole purpose of the card or that he should disregard the language con- tained above his signature. Gissel Packing Co., supra. Jose Molina—card signed April 30 (G.C. Exh. 127): Mo- lina's card is objected to on two grounds . (1) that it is dated after April 10; and (2) that the employee was told the only purpose of the card was to get an election. Molina testified he received his card from a coworker and was told that signatures were needed to bring in someone to represent the Union. He also stated on cross- examination by Respondent's counsel that he was told the purpose of the card was to have an election. Considering Molina's testimony, which is the only tes- timony regarding his solicitation, I find nothing to indi- cate the solicitor told Molina to disregard the language authorizing the Union to be his representative, or that the only purpose of the card was to have an election. Therefore, Molina's card should count toward the Union's majority status on the date that it was executed, but does not count as of the date of the Union's demand for recognition on April 10. Mateo Zuniga—card signed April 28 (G.C. Exh. 128): The authentication for Zuniga's card was by the testimo- ny of Zuniga, himself. He stated he received the card from a coworker (Julian Garza) and was told the card was to get union benefits in the future. Zuniga testified he read the card before signing and stated that Garza talked to him in English and in Spanish, although he had no problem reading or understanding English. On cross- examination by Respondent's counsel, Zuniga testified that during the solicitation he was asked to sign the au- thorization card in order to get a union representative to come in and discuss union benefits with the employees. Respondent objects to Zuniga's card on the grounds that it was dated after April 10 and it was for the purpose of getting further information on the Union. Respondent's objection to the validity of the card must be rejected. It is clear from Zuniga's own testimony that nothing was stated to him that would negate the express language contained on the card authorizing the Union to be his representative for purposes of collective bargain- ing. Indeed, he was told that by signing the card he would be assisting in getting union benefits for the em- ployees in the future. Simply because he was told that it would also enable the employees to have a union repre- sentative come in and discuss these benefits does not contradict the authorization purposes of the card. Be- cause Zuniga's card was dated April 28, however, it cannot be counted toward the Union's majority on the date of the recognition demand, but is a valid authoriza- tion card as of the date it was signed. Mark Wallendorf—card signed April 17 (G.C. Exh. 129): Wallendorf authenticated his signature on the au- thorization card. He stated he received the card from Rudy Cerda and read it before signing it. However, he did not put a date on the card. The card bears a date of April 17 and Wallendorf recalled that he did sign the card sometime in April. According to Wallendorf, he was told by Cerda that the card was only for the pur- pose of getting information about the Union. Respondent objects to the card both on the basis of its date (after April 10) and the fact that its purpose was only for infor- mation. As Cerda was not called as a witness to testify about the circumstances surrounding the solicitation of Wallen- dorf, there is no testimony in the record to refute Wal- lendorf s statement regarding the purpose that was pre- sented to him when his signature was solicited. In these circumstances, I find that Wallendorf s card must be re- jected and cannot count toward the Union's majority status. His testimony indicates that the representation to him by the solicitor was such that he could ignore the language on the face of the card and that it was for a purpose other than indicated by the language. Bookland, Inc., 221 NLRB 35 (1975). Genaro Castillo—card signed April 23 (G.C. Exh 130): Castillo testified that he was also solicited by Rudy Cerda. Castillo stated Cerda informed him the only pur- pose of the card was to get information about the Union. Castillo did not read the card and simply signed it. He indicated Cerda filled in all the other information re- quired on the face of the card. This card is objected to on the grounds that it was signed after April 10 and also because the announced purpose of the card was solely to get information on the Union. Cerda was not called as a witness. On the basis of Castillo's testimony, his signature was solicited on the representation that the card would be used exclusively for a purpose other than representa- tion by the Union. I find, therefore, that Castillo's card is not a valid designation of the Union for representation purposes and cannot count toward the Union's majority status. Bookland, Inc., supra. Carlos Zuniga—card signed February 29 (G.C. Exh. 131): Zuniga received his card from a coworker. He tes- tified that he read part of the card and was aware that it was an authorization for representation by the Union. He also testified that the card solicitor informed him that the card was for representation and to get some information about the Union. He was told one of the reasons for signing was to allow him to get literature from the Union and to have a representative come and talk to the employees. MONTGOMERY WARD & CO. 163 2,uniga's testimony indicates that he was aware of the authorization purpose of the card. The fact that signing the card would also allow him to receive literature from the Union is in no way at odds with this purpose. There- fore, I find Zuniga's card to be a valid designation of au- thorization to the Union to represent him for purposes of bargaining with the Respondent. Juan Garcia—card signed January 31 (G.C. Exh 132): Garcia testified that when he was solicited to sign an au- thorization card, he was told the card was for the pur- poses of getting the Union in the store so the employees could receive higher wages and additional benefits. He was asked to sign the card if he wanted the Union to represent the employees in the store. It is evident from Garcia's unrefuted testimony that the authorization purpose of the card was fully commu- nicated to him when his signature was solicited. On this basis, I find that Garcia's card is a valid designation for the Union as bargaining representative and counts toward the Union's majority status. Domingo Villafuerte—card signed April 2 (G.C. Exh. 137): This employee testified that although he filled out the entire card, he did not read any of the information printed on the card. He testified that the solicitor in- formed him the only purpose of the card was to have an election. Villafuerte's testimony was extremely vague and it was apparent that he wanted to disassociate himself from any connection with the card that he signed. No other testi- mony surrounding the circumstances under which Villa- fuerte's signature was solicited was presented. In spite of the vagueness of his testimony, there is nothing in the record to refute that he was told the card was solely for the purposes of having an election. I am constrained to find that Villafuerte's card is not a valid designation of the Union to be his bargaining representative. Rosalee Campos Diaz—card signed February 15 G.C. Exh. 138): Diaz was told by the card solicitor that, if she wanted to get the Union in the store, she should sign an authorization card. She was also told that signatures of 50 percent of the employees were needed so they would have a right to an election. Diaz further testified that the card solicitor informed her she did not have to vote for the Union in the election but by signing the card, she would show her interest in the Union and receive infor- mation about it. Respondent contends that this card was solicited solely on the basis of getting an election. Contrary to the Respondent, the solicitor's alluding to an election was not inconsistent with the language con- tained on the face of the card. Nor did the solicitor make the representation to Diaz that she should disregard the language on the face of the card. In these circumstances, I find that Diaz' card is a valid authorization card that should be counted toward the Union's majority status. Ruby Smethers—card signed March 12 (G.C. Exh 140): Ramiro Juarez gave testimony to authenticate this card. According to Juarez, he solicited Smethers' signature in the Buffeteria. He told Smethers the card was to fmd out how many employees would sign for the Union. He also indicated that the card would enable the employees to have an election. Smethers took the card home and re- turned it to Juarez the following day. In these circumstances there is nothing in the represen- tation to Smethers that would indicate that she was to ignore the express language above her signature. The fact that Juarez took the card home, presumably read it, and returned it to the solicitor the following day, demon- strates that she was authorizing the Union to represent her when she executed the card. I find, therefore, that Smethers' card is a valid authorization card and counts toward the Union's majority status. Sevando Sandoval—card signed January 31 (G.C. Exh. 141): Sandoval worked as a commission salesperson in Respondent's TV and stereo department. He testified he received a card from coworker Juan Gonzalez Jr. Ac- cording to Sandoval, Gonzalez asked if he wanted to join the Union. When Sandoval inquired what it was about, Gonzalez said, "You're going to get better bene- fits and better commissions on your sales." Sandoval also testified that Gonzalez represented that everyone else but Sandoval had signed a card. The Respondent contests this card on the grounds that Gonzalez misrepresented to Sandoval that all the other employees had signed a card. However, it is not clear in the record whether this state- ment alluded to the entire store (which was not true) or whether it alluded to the employees in the TV and stereo department. On the strength of the testimony by Sandoval, I find the Respondent has failed to impeach the validity of this card. It has been held that puffing or misrepresenting the number of others who signed authorization cards will not invalidate a clear and unequivocal card signed by an employee, "unless there's objective evidence that the card would not have been signed but for the subscriber's reliance on the misrepresentation." Winco Petroleum Co., 241 NLRB 1118, 1135 (1979), and the cases cited therein. Considering Sandoval's testimony, there is not the slight- est suggestion that he signed the card simply because it was represented to him that all the other employees had done so. Indeed, based on his testimony, it can be said that the prospect of getting better benefits and better commissions was an equally, if not more, persuasive factor in his decision to sign. In the absence of any ob- jective evidence to the contrary, the misrepresentation cannot be considered decisive in securing the signature on this card. Therefore, I find that Sandoval's card is a valid designation of the Union. Carlos Yanez—card signed January 31 (G.C. Exh 145): The testimony authenticating the card signed by Yanez was given by Fred Garcia. Garcia stated he solicited Yanez' signature by telling him that the purpose of the card was to get the Union to come in and to have an election. Yanez took the card and subsequently returned it to Garcia. In these circumstances, there is no objective testimony that would indicate that Garcia's representations to Yanez were inconsistent with the message contained on the face of the authorization card. Garcia communicated the fact that the purpose of the card was to get the Union to come into the store to represent the employees and also to have an election. The fact that Garcia men- tioned that the card would enable the employees to go the election route did not destroy the essential character 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the cards as designation of the Union as the bargain- ing representative. Great Atlantic & Pacific Tea Co., 230 NLRB 766, 767 (1977); The Catalyst, 230 NLRB 355, 363 (1977). Accordingly, I find Yanez' card is a valid desig- nation of the Union as bargaining representative and counts toward the Union's majority status. Arnulfo Pulido—card signed January 31 (G.C. Exh. 146): Fred Garcia solicited Pulido's signature on an au- thorization card. Garcia testified he informed Pulido that the purpose of the card was to get a union to come in and to hold an election. He also told Pulido that by sign- ing the card, the employee was not obligated to vote for the Union. Pulido took the card, according to Garcia, and later returned it. Pulido confirmed he received the card from Garcia, but stated that he was told the purpose of signing the card was to secure enough signatures to have an election and to get a union representative to come down. Pulido denied reading the card and stated he was in a hurry when Garcia gave it to him in the store. He did not indi- cate, however, whether he signed the card at the time he was solicited or retained the card and later returned it to Garcia. Pulido also testified that the date on the card (January 31) was not the date on which he signed it. Ac- cording to Pulido, he did not sign the card until April or May. Pulido also testified that he knew what unions were about from his studies in college. The Respondent contests this card on the grounds of irregularity concerning the date as well as the asserted misrepresentation that the purpose of the card was to get an election. I find that Respondent's objections to the va- lidity of this card to be without merit. First, from Puli- do's own testimony, there is no question but that he signed the authorization card at some point. That he con- tends this was done in April or May and not on January 31, as indicated by the card, does not destroy the validity of the designation if other facts do not warrant rejection of this card. Although Pulido could not fix the date, the card bears a stamp from the Board's regional office indi- cating it was received in support of the Union's petition on April 10_ This fact coupled with Pulido's testimony that he signed the card is sufficient to establish that the card was signed prior to the date it was submitted in sup- port of the petition. See Montgomery Ward & Co., 253 NLRB 196, 204 (1980). Regarding the objection that the purpose of the card was misrepresented, I find this contention is not support- ed by the circumstances surrounding the card solicita- tion. The Board has held cards to be valid when the so- licitor represented the cards were for the purpose of seeing if the employees wanted an election and "it would be left up to the people to vote it [the Union] in or out." Great Atlantic & Pacific Tea Co., 210 NLRB 593 (1974). Similarly, in Unarco Industries, 197 NLRB 489 (1972), the same result was reached concerning representations that "they needed so many more cards before they could go ahead and get an election," and "we need six or eight more signatures in order for the Union to hold an elec- tion." (Id. at 494.) In the circumstances under consider- ation here, Garcia told Pulido the purpose of the card was to get a union in and to hold an election. I do not credit Pulido's testimony that he was told it was solely to have an election. Thus, I find in the totality of the cir- cumstances that the solicitor did not misrepresent the purpose of the card. I find nothing inconsistent with the representations made here and the purpose stated on the face of the card. In light of this, Pulido's card is a valid designation of the Union as his bargaining representative. The Catalyst, supra. George Broaddus—card signed January 30 (G.C. Exh 150): Del Castillo testified that he observed Broaddus at the union meeting on January 30 at the Hilton where the employees met with Union Representative Guardiola. It has been established that Guardiola told the employees that they would be authorizing the Union to represent them and the Union would proceed through the election process in order to establish its representation rights with the Respondent. Del Castillo observed Broaddus take an authorization card and fill it out at the meeting. Broad- dus did not turn in the card at that time, but subsequent- ly gave it to Del Castillo at the store. Broaddus testified he was told at the meeting that the card was for the pur- pose of getting an election. Broaddus acknowledged that he read the card before he signed it. There is nothing here that indicates Broaddus was told that the sole pur- pose of the card was to get an election. To the contrary, it has been found previously that Guardiola explained the representative purpose of the designation and how the Union intended to attain this status. The designation of the Union as the bargaining representative was clear and unequivocal on the face of the card and the representa- tions by Guardiola were not inconsistent with this pur- pose. Hedstrom Co., 223 NLRB 1409, 1411 (1976). Thus, I find the card of Broaddus to be a valid designation of the Union to be his bargaining representative. Rudolfo Cerda—card signed March 22 (G.C. Exh. 155): Del Castillo testified he gave Cerda an authorization card when Cerda came to his home to repair his televi- sion set. According to Del Castillo, he told Cerda that when the majority of the employees signed authorization cards, they could get representation by the Union and could have an election. He also told Cerda that by sign- ing the card he was not obligated to pay union dues or even to vote for the Union in the election. C,erda testi- fied he signed the card at a union meeting at someone's apartment, but he could not recall the name of the person. According to Cerda, he was told the Union would help the employees get better wages, working conditions, and cost of living wages. Cerda also stated that he was told the purpose of signing the cards was to determine how many employees were interested in the Union and if 50 percent or more signed cards, there would be an election. Cerda acknowledged he read the card before signing. He also passed out authorization cards to other employees and encouraged them to sign. The Respondent contends that Cerda was told that the sole purpose of the card was to get an election. I find this to be contrary to the testimony in the record. Even if the testimony of Del Castillo is disregarded, it is clear from Cerda's own testimony that it was not represented that the card was solely for the purposes of securing an election. Cerda read the card and therefore was aware of the clear language on the face of the card. In addition, MONTGOMERY WARD & CO. 165 the representations made to Cerda are similar to those which the Board has already held do not invalidate the clear designation contained on the face of the card. See Great Atlantic & Pacific Tea Co., supra; Unarco Industries, supra. In these circumstances I find that Cerda's card is valid and counts toward the Union's majority status. Angelica Correa—card signed February 7 (G.C. Exh 159): Correa signed an authorization card after having several conversations with Carlos Molina about the Union. Correa testified Molina told her that by signing the card, she would be asking for representation by the Union, but the signing of the card did not mean the Union would automatically come in because there had to be an election. It is clear from Correa's testimony that Molina never represented that the only purpose of the card was to secure an election. Rather, his representations were con- sistent with the designation contained on the face of the card and he indicated that the Union would secure its representation rights by means of an election. In these circumstances I find that Correa's card is a valid designa- tion of the Union as her bargaining representative. Laic! Cuellar—card signed March 21 (G.C. Exh 160): Del Castillo testified regarding the circumstances sur- rounding the signing of this card. He stated that he re- ceived the card from Ramero Juarez, a member of the organizing committee of the Union. Del Castillo did not observe Cuellar sign the card and it was turned in to him by the card solicitor. Neither J uarez nor Cuellar were called to testify regarding the card. Nor did the General Counsel attempt to establish the validity of the signature on this card from any source. The Respondent contends that the signature on this card has not been properly authenticated. In my judg- ment, the Respondent is correct in this regard. Although secondary evidence may be used to establish the authen- ticity of an authorization card, the testimony of Del Cas- tillo fails to accomplish this. Del Castillo did not see the card signer execute the card nor was it handed to him personally by the card signer; which would indicate that the signer had designated the Union to be her bargaining representative. See J. P. Stevens & Co., supra. Accord- ingly, I find that Cuellar's card has not been properly au- thenticated and therefore cannot be counted in establish- ing the Union's majority status. Fernando G. Enriquez—card signed April 21 (G.C. Exh. 162): Del Castillo testified that he solicited Enriquez' sig- nature on an authorization card, He stated he spoke to the employee in Spanish and informed him that the em- ployees were organizing for the Union and needed cards in order to be represented by the Union and to have an election. He further testified that he told Enriquez that by signing the card, the employee would not be obligat- ed to vote for the Union in the election. Enriquez gave Del Castillo the information to be written on the card and then signed it. Enriquez, who was receiving disabil- ity benefits due to a job-related injury at the time of the hearing, testified he was told the employees were inter- ested in getting a union for better benefits. He stated he was also told that if he wanted to receive information about the Union he should sign the card. It is evident from the testimony of Del Castillo and Enriquez that it was not represented that the sole pur- pose of the card was to get information about the Union. To the contrary, the card signer was told the employees needed signatures to be represented by the Union and to have an election. Nothing stated by Del Castillo in this solicitation was contrary to the authorization purpose contained on the face of the card. Moreover, although Enriquez testified in English, it is clear that Del Castillo fully conveyed the various purposes of the card to the employee since he spoke to him in Spanish. Therefore, I find that Enriquez' card is a valid designation of the Union to be his bargaining representative. However, since his card is dated April 21, which is after the date of the Union's demand for recognition, it cannot be counted toward the Union's majority status until the date con- tained on the face of the card. Magdalena Flores—card signed February 14 (G.C. Exh 164): Flores attended the meeting held at the Hilton on February 14. She testified she asked the union represent- ative at the meeting if the employees would be obligated in the future were they to sign the authorization cards. According to Flores, she was told that signing the cards would not obligate the employees, , and that the cards were simply to get enough signatures to hold an election where the employees would determine whether they wanted to be represented by the Union. Molina testified that he also attended that meeting and saw Flores there with her husband. Molina stated that the union represent- ative, Elliot, told the employees that signing the authori- zation cards did not mean they were in the Union. Elliot told the employees that a certain percentage of signa- tures were needed to show that they were interested in being represented by the Union. Elliot stated, according to Molina, that when this percentage was achieved, an election would be held to allow the employees to vote on whether they wished to be represented by the Union. From the above facts, the Respondent deduces that it was represented to Flores that the sole purpose of the card was to secure an election. I find otherwise. Flores' testimony is not inconsistent with that of Molina regard- ing what was said to the employees at this meeting. However, she did not fully elaborate on the explanation given by Elliot. I credit the testimony of Molina that-E1- Hot's explanation to the employees went further than the testimony of Flores. Thus, I find that he told the em- ployees a certain percentage of signatures were needed to show that the employees were interested in being rep- resented by the Union and that once this was attained, an election would be held to allow the employees to vote on union representation. There is nothing in these repre- sentations by Elliot that are inconsistent with the clear language on the face of the card. Nor do I construe these representations as being an attempt to assure the card signer that her card would be used exclusively for the purposes of securing an election. Rather, the repre- sentations stressed the fact that once the Union secured enough designations as bargaining representatives, it in- tended to follow the election route in order to gain rep- resentation rights with the Respondent. Winco Petroleum Co., supra at 1134; Great Atlantic & Pacific Tea Co., 230 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB 766 (1977); Great Atlantic & Pacific Tea Co., supra; Unarco Industries, supra. Therefore, I find Flores' card to be a valid designation of the Union as her bar- gaining representative. Donald Frymire—card signed February 16 (G.C. Exh. 166): Frymire's signature was solicited by Carlos Molina. Molina testified he gave the card to Frymire in the Buf- feteria. He told the employee that the purpose of the card was to get the Union to represent employees in the store and to see how many were interested in having an election. Molina stated that Frymire replied that he al- ready knew about unions because he had belonged to one in another state. Frymire signed the card and re- turned it to Molina. Frymire's testimony regarding the solicitation differs from that of Molina. Frymire, who, no longer is employed by the Respondent, stated he told Molina he was not certain that he wanted to sign an au- thorization card for the Union. Later, he went to Molina and asked for a card. He stated he questioned Molina about the language on the card that authorized the Union to represent the card signer for purposes of col- lective bargaining. According to Frymire, Molina stated that language did not mean anything and that the card was simply to get an election. It was after this explana- tion by Molina that Frymire signed the card. Respondent's objection to this card is well taken. It is clear from the testimony of Frymire, which I credit, that Molina deliberately told him to disregard the language above his signature on the card. This falls squarely within the circumstances that the Supreme Court pointed out would nullify the designating language on authoriza- tion cards. NLRB v. Gissel Packing Co., supra 395 U.S. at 606. For the above reason, Frymire's card is not a valid designation of the Union as his bargaining representative. Maria Alicia Garza—card signed April 30 (G.C. Exh 169): Garza's card was admitted into evidence on the strength of the testimony of Del Castillo. Garzo was not called as a witness. Del Castillo testified that he gave the card to Garza who filled it out and returned it to him Examination of the card reveals that she printed her name on the line that stated, "Print Name." However, she did not sign the card on the line where the signature was required. Respondent objects to the card of Garza on the grounds of improper authentication regarding the signa- tures and the fact that it was dated after April 10. I find neither of these objections invalidates Garza's designa- tion of the Union as her bargaining representative. Del Castillo's testimony regarding the signing of this card is unrefuted. The Board has consistently held that a card is not invalidated simply because the card solicitor did not witness the signing of the card. Dresser Industries, 248 NLRB 33, 38 (1980). Therefore, the only question re- garding this card is the fact that Garza's name was print- ed on the line which stated "Print Here" and the signa- ture line was left blank. Had Garza signed her name to this card it would have been properly authenticated by Del Castillo, as the solicitor to whom the card was re- turned. I see little distinction between the card here and cards which the Board has held to be valid where the name of the card signer is printed on the signature line and the card is authenticated only by the solicitor. See McEwen Mfg. Co., 172 NLRB 990, 993 (1968), enfd. sub nom. Clothing Workers, 419 F.2d 1207 (D.C. Cir. 1969), cert. denied 397 U.S. 988 (1970). The mere fact that Garza printed her name and left the signature line blank does not invalidate her intention to authorize the Union to represent her. Indeed, she ratified this intention when she returned the card to Del Castillo. McEwen Mfg. Co., supra. Therefore, I fmd the card of Garza to be a valid designation of the Union as her bargaining representa- tive, Because Garza's card is dated April 30, however, it cannot count toward the Union's majority status until that date. Adan Gutierrez—card signed May 20 (G.C. Exh 171): Del Castillo testified that although he did not solicit Gu- tierrez' signature, the employee turned in a signed au- thorization card to him. There was no other testimony offered relating to the circumstances in that this card was signed by Gutierrez. The Respondent objects to this card on the ground that it is dated after April 10. I find this objection has nothing to do with the validity of the card. In the ab- sence of any testimony tending to invalidate the card, I find that Gutierrez did effectively designate the Union as his bargaining representative when he signed the card. However, because the card was not signed until May 20, it cannot count toward the Union's majority status until that date. Michael McKissack—card signed April 22 (G.C. Exh. 178): McKissack testified he first received a card from Del Castillo. At the time he was given a card, Del Cas- tillo stated the employee's signature was needed to help bring an election about in the store. McKissack kept the card but did not sign it. He later received another card from Rudy Cerda, which he signed. McKissack testified that when Cerda gave him the second card, he stated McKissack's signature was needed in order to allow the employees to have an election to determine if they wanted to be represented by the Union. McKissack ac- knowledged that he read the card before signing it. Respondent objects to this card on the grounds that it is dated after April 10 and that the signer was told the sole purpose was to get an election. As the Board indi- cated in Amber Delivery Service, supra, the situation here is governed by the Board's decision in Levi Strauss & Co., 172 NLRB 732, 733 (1968). In that case the Board found that a statement that an election was contemplated or that the purpose of the card was to make an election possible is insufficient in and of itself to render invalid an unambiguously worded card. Here, McKissack's testimo- ny clearly indicates that he read the card before signing it. In these circumstances, the failure of Del Castillo or Cerda to allude to the representation purpose of the card does not indicate that that purpose was abandoned or ig- nored. Hedstrom Co., supra. Therefore, I find the card of McKissack is a valid designation of the Union as his bar- gaining representative. As in the case of the other cards that contained dates beyond April 10, McKissack's card does not become a valid designation until the date it was signed. Gilbert Martinez—card signed February 13 (G.C. Exh. 180): Martinez testified he received an authorization card MONTGOMERY WARD & CO. 167 from Carlos Molina on the sales floor in the appliance department. At the time of the solicitation, Molina told Martinez that a lot of people in the store wanted to go union and that just about everybody in the department had signed authorization cards. Martinez also testified that Molina stated the purpose of the card was to get the Union to represent the employees by having enough signed cards to get an election. Respondent objects to the validity of the card on the grounds that Molina mis- represented that everyone else had signed cards and that the sole purpose of the card was to get an election. I find that the testimony of Martinez does not support the Respondent's objections. The testimony of Martinez does not demonstrate that the representation that a number of other employees signed cards was the decisive factor in causing him to sign the card on that date. Winco Petroleum Co., supra. Nor does his testimony indi- cate Molina represented the sole purpose of the card was to have an election. Rather, his statements indicated that a number of the employees wanted to be represented by the Union and the means to accomplish this was by get- ting enough cards in order to have an election. These representations were not inconsistent with the purpose stated on the face of the card and do not invalidate the designation of the Union as bargaining representative. Dresser Industries, supra. Belen Ochoa—card signed January 31 (G.C. Exh 183): Ochoa testified that when she received an authorization card in the parking lot of the mall, she was told that if there were enough "votes," the employees could have an election. Ochoa did not sign the card at the time it was given to her but kept it for approximately a week. She testified that she thoroughly read the card and then went to the public library to read up on labor unions. After researching the matter, Ochoa decided to sign the au- thorization card. Although the Respondent contends that the solicitor misrepresented the purpose of the card by indicating it was solely to get an election, I find the circumstances here belie the Respondent's claim Although the card so- licitor did not allude to the representative purpose of the card during the solicitation, this employee took- it upon herself to carefully examine and read the card, and then research information regarding unions. It is clear that when this employee decided to sign the card (1 week later) she had every intention of designating the Union as her bargaining representative. Yong Kol Pak—card signed January 31 (G.C. Exh. 184): Del Castillo testified concerning this card. According to Del Castillo, he received the card from another member of the organizing committee, but was unable to identify the person. No other testimony was elicited concerning this card or the circumstances surrounding its solicita- tion. I find this card has been improperly authenticated and is not a valid designation of the Union as the bargaining representative of the card signer. Del Castillo was unable to recall who had solicited the card, nor was the card solicitor called to testify about the circumstances sur- rounding the signing of the card. In my judgment, there is insufficient secondary evidence to sustain the validity of this card. Ramon Pruneda—card signed January 31 (G.C. Exh 186): Pruneda was given a blank authorization card by Del Castillo. At the time Del Castillo gave the card to Pruneda he was accompanied by Carlos Molina and Fred Garcia. According to the testimony of Prtmeda, he was told by the three employees that the Union would get better wages and benefits for the employees. They also indicated that the purpose of the card was to "bring union representation" to the employees so they could evaluate what the Union had to offer and make up their own minds. Pruneda testified he read the card before fill- ing it out and signing it. The Respondent asserts that it was represented to Prunecla that the only purpose of the card was to secure more information about the Union by meeting with union representatives. Pruneda's testimony, however, does not support this claim. Statements that one of the purposes of an authorization card is to have a union rep- resentative come and talk to the employees does not indi- cate that the solicitor is directing the employee to ex- pressly disregard the language on the card. Moreover, during the discussion with the card solicitors, Pruneda was told that the Union would get better wages and ben- efits for the employees. In the totality of the circum- stances surrounding the signing of this Card, it cannot be said that the solicitors Misstated the purpose of the card. Dresser Industries, supra; The Catalyst, supra. Therefore, Pruneda's card shall count toward the Union's majority status. Baldemar Ramirez—card signed February 13 (G.C. Exh. 187): Del Castillo testified he received a signed card from Ramirez and he filled in Ramirez' address and dated the card Ramirez, on the other hand, testified he was given an authorization card by a coworker, Tony Tijerina. He stated that Tijerina informed him that signa- tures were needed so that union representatives could have a meeting with the employees. Tijerina also told Ramirez that votes were needed so that a union could be brought into the store. It is asserted that Ramirez' card was solicited on the misrepresentation that the only pur- pose of the card was to get information by having a meeting with union representatives. In my judgment this assertion does not fully take into account all that was stated to Ramirez at the time his sig- nature was solicited. He was not only told that a purpose of the card was to allow the employees to have a meet- ing with union representatives, but he was also told that signed cards were needed so that a union could be brought into the store. This clearly indicated that one of the purposes of the card was to get union representation for the employees and it is not inconsistent with the ex- press language contained on the face of the card. There- fore, I find the card of Ramirez is a valid designation of the Union as the bargaining representative. Rosalinda Ramirez—card signed January 31 (G.C. Exh. 188): This employee testified she was given a card but misplaced it. She received a second card, which she re- tained for awhile before signing. According to Ramirez, the card solicitor told her the purpose of the card was to get an election. She also testified, however, that the so- licitor discussed getting better wages and insurance bene- 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fits through union representation. She thought, although she was not certain, that the solicitor may have also said the employees were seeking representation by the Union. The objection that Ramirez' card was solicited on the misrepresentation that its sole purpose was to get an election is not supported by Ramirez' own testimony. It is evident from her statement that the solicitor discussed the benefits she would receive through union representa- tion and that she was told the employees were seeking to get that representation by the Union. In the totality of these circumstances, the representations made to Ramirez were not inconsistent with the express purpose stated on the face of the card, i.e., to authorize the Union to repre- sent the card signer. Accordingly, Ramirez' card is a valid designation of the Union as her bargaining repre- sentative. Jesse Rodriguez—card signed April 18 (G.C. Exh. 192): Del Castillo testified he received the card from Rudy Cerda. Although Cerda was not called to testify regard- ing the circumstances surrounding the solicitation, Rodri- guez confirmed that he was given the card by Cerda. According to Rodriguez, in soliciting his signature, Cerda stated that if he wanted to receive more `informa- tion about the Union, he should sign the authorization card. Rodriguez affixed his signature to the card and re- turned it to Cerda who filled in the balance of the infor- mation on the card. 'This card is contested on three grounds: (1) improper authentication; (2) misrepresenta- tion that the purpose of the card was solely to receive information about the Union; and (3) the card was dated after April 10. In view of the fact that Rodriguez confirmed he signed the authorization card, I find the card has been properly authenticated. The validity of its designation of the Union as the bargaining representative, however, is another matter. The only testimony regarding this card comes from Rodriguez, who was asked to sign the card if he wanted to get more information about the Union. On the basis of this testimony, I am of the view that the solicitation of this card amounted to an assurance that the signer's card would be used for no other purpose than to receive information about the Union. For this reason, I find the card of Rodriguez is not a valid desig- nation. Leonor Rutledge—card signed April 5 (G.C. Exh. 194): Del Castillo provided the only testimony regarding this card. He stated that when Rutledge gave him the author- ization card it only contained her signature. Del Castillo did not observe the employee sign the card. He complet- ed all the other information required on the card and turned it in to the Union. Respondent claims this card has been improperly authenticated and therefore must be rejected. I find the Respondent's objection to this card to be without merit. Cards are properly authenticated when the signatory returns the card to the solicitor, even though the solicitor did not witness the actual act of signing. In so doing, the card signer thereby acknowl- edges any writing contained on the card to be his or her own. Dresser Industries, supra; McEwen Mfg. Co., supra. Thus, I find the card of Rutledge to be a valid designa- tion of the Union as her bargaining representative. Criselda Saenz—card signed April 5 (G.C. Exh. 195): This employee testified she was solicited by Del Castillo and Garcia in the shopping mall According to the testi- mony of Saenz, she was told that if she signed the card, "it would help bring the Union down for a vote in the store." Although Saenz acknowledged she filled out the entire card, she professed not to have read the language authorizing the Union to represent her. She asserted that she was in a hurry and was on her lunch hour. The Respondent objects to this card on the ground that it was represented to the employee that the sole pur- pose of the card was to secure an election. I find nothing in the representations made to Saenz which indicate that she was to disregard the express language contained on the card or which assured her that the card would be for no other purpose than to get an election. I do not credit Saenz' testimony that she did not read the designating language contained on the card, but nevertheless filled out all the information required on the face of the card. As previously noted, many of the employees questioned by the General Counsel professed to have read selected portions of the card and I discredit their testimony in this regard. Accordingly, I find that when Saenz signed the card, she intended to designate the Union as her bar- gaining representative. Great Atlantic & Pacific Tea Co., 230 NLRB 766 (1977). Rachel Salinas—card signed January 31 (G.C. Exh. 196): Salinas testified she received a card in the shopping mall, but was uncertain whether the solicitor was Del Castillo, Garcia, or Molina. She stated that when she was first approached, she did not want to join the Union and did not sign the card. She testified that she was later told that the signing of the card did not mean she was joining the Union, it merely was for the purpose of get- ting a union representative to meet and talk with the em- ployees. Salinas stated that while she read the entire card in order to fill it out, she did not "thoroughly" read the portion designating the Union to be her bargaining repre- sentative. Subsequently, Salinas became a member of the antiunion group and sometime in late March or early April, asked Molina and Garcia to return her card. The Respondent objects to this card on the grounds that Sali- nas revoked her designation and that the card was solic- ited under misrepresentation regarding its purpose. As in the case of Wisdom, I find that Salinas' attempt to retrieve her card and revoke her designation is inef- fective. Having found that the Respondent committed numerous unfair labor practices shortly after the organiz- ing campaign began, the presumption attaches that the attempt to revoke the designation was motivated by Re- spondent's unlawful conduct. As to the representations made during the solicitation of Salinas' signature, I find nothing in the totality of the circumstances to indicate that the solicitor directed her to disregard the express language designating the Union as her bargaining repre- sentative or that the card was only for the purpose of having the union representative meet and talk with the employees. As previously indicated, I discredit the testi- mony of Salinas and the other employees who stated that while they read the card, they did not "thoroughly" read the authorizing language contained on the card. Thus, I MONTGOMERY WARD & CO. 169 find that there were no representations made to Salinas which cancelled or contradicted the message on the card. Accordingly, I fmd Salinas' card to be a valid des- ignation of the Union as her bargaining representative. Dresser Industries, supra. Tony Tijerina—card signed January 29 (G.C. Exh. 197): Tijerina signed a card at the meeting held at the Hilton Inn on January 29. He testified that the purpose of the card was to try to get the Union in the store. Tijerina acknowledged he read the entire card before signing it. He also testified that the union representative informed the employees attending the meeting that they were trying to get as many signatures as possible in order to have an election to bring the Union in the store. Respondent objects to this card on the ground that it was represented to the card signer that the sole purpose of the card was to have an election. Having previously found that the representative purpose of the card was ex- plained by the union representatives at this meeting, I find Tijerina's card to be a valid designation of the Union as his bargaining representative. Natividad Tijerina—card signed January 31 (G.C. Exh 198): Del Castillo testified Tijerina handed him the signed card in the store Buffeteria. Tijerina stated that when his signature was solicited, he was told the card was to get information about a union that would help the employees receive more pay and better benefits. Accord- ing to Tijerina, he did not read the entire card, but ac- knowledges that he filled in all the information contained on the face of the card. Respondent objects to the validi- ty of this card on the ground that it was represented that the sole purpose of the card was to receive information about the Union. Because I do not credit the testimony of the employ- ees who indicated they only read selected portions of the card, I find that Tijerina read the card in its entirety before signing it. Considering all of the circumstances surrounding the solicitation, I find Tijerina's card to be a valid designation of the Union as his bargaining repre- sentative. Not only did he read the card, the solicitor also indicated that the Union would help the employees receive better benefits and wages. I find nothing in the representations to Tijerina which directed him to disre- gard the express language of the card or assured him that it would be used only to receive information. Hence, I find this card to be a valid designation of the Union as his bargaining representative. Juanita Timmons—card signed April 29 (G.C. Exh. 199): The only testimony given regarding this card was that of Del Castillo. He stated the card was given to him by an unidentified member of the union organizing com- mittee. Respondent considers this card improperly au- thenticated and also objects to the card on the ground that it is dated after April 10. Because it is obvious Del Castillo did not observe the signing of this card, and as there is no supporting testi- mony from the card signer or the solicitor, or any other secondary evidence to authenticate the signature on the card, I fmd it to be improperly authenticated. Therefore, for the purposes of determining the Union's majority status, I fmd this card to be an invalid designation. Graciela Adame—card signed February 4 (G.C. Exh. 201): This card was also identified by Del Castillo. He was unable to recall how he received the card, but ex- pressed the view that it might have been given to him by a member of the organizing committee. In the absence of any further testimony or evidence concerning the au- thenticity of the signature on this card, I find it to be an invalid designation. Guadalupe Ramos—card signed January 31 (G.C. Exh. 202): Although Del Castillo, who identified this card, was unable to recall whether the card had been given to him directly by the employee or by an organizing com- mittee member, Ramos was called as a witness and ac- knowledged that he signed the card. Ramos was unable to read or speak English and stated that the card solici- tor spoke to him in Spanish. According to Ramos, he was asked if he wanted to join the Union and he was told that the card related to joining the Union. Ramos signed the card and gave it to the solicitor who then filled in all of the other information required on the face of the card. Respondent objects to this card on the grounds that it was improperly authenticated and that the non-English-speaking employee did not understand the purpose of the card. It is clear that both of Respondent's objections to the validity of this card are without merit. Any deficiencies in Del Castillo's authentication of the card are fully overcome by the fact that the card signer himself testi- fied and acknowledged that he executed the card. From the tdstimony of Ramos, it is clear that the purpose of the card was fully communicated to him and that he comprehended the meaning of the card when he signed it. Therefore, I find that Ramos was aware that he was authorizing the Union to be his bargaining representative at the time he signed the authorization card. Sans Souci Restaurant, supra; see also World Generator Co., 242 NLRB 1295 (1979). S. The Incidents Occurring After the Close of the Hearing in January 1981 As noted in the beginning of this decision, the hearing closed on January 20, 1981. Prior to the submission of the briefs, additional charges were filed by the Union against the Respondent and the Regional Director subse- quently issued new complaints alleging violations grow- ing out of events related to the prior cases. Upon the granting of a motion by the General Counsel, the hear- ing was reopened on May 12, 1981, and additional evi- dence and testimony was received on the following 1. The discharge of Yolanda Alvarado Alvarado was first employed by the Respondent in 1976. She left in 1977 and was reemployed in December 1979. When she returned in 1979, she worked as a sales- person in the drapery department for approximately 2 months and was then transferred to the sewing machine and vacuum cleaner department as a full-time commis- sion salesperson under the supervision of Ed Moreno.59 59 A full-time employee is descnbed as one scheduled to work 30 or more hours a week on a regular basis. 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Alvarado remained in this position until she was termi- nated in January 1981. During the hearing on the issues raised by the prior complaints, Alvarado gave testimony as a witness for the General Counsel regarding alleged unlawful statements made by Moreno and Hull. Management was aware, through Moreno, that she was an active supporter of the Union during the organizing campaign and the record re- veals she solicited employee signatures on authorization cards and attended union meetings. Alvarado testified she was originally scheduled to go on maternity leave on December 9 and remain away from work until January 12, 1981. Sometime in October, Alvarado was called into Padgett's office and given forms that she and her doctor were to fill out giving the expected dates she would be on leave. 60 According to Alvarado, Padgett said someone would fill in for her while she was on leave but when Alvarado's leave ended, she could return to the sewing machine depart- ment. Alvarado testified she showed the forms to Moreno before submitting them to the personnel office and indicated that if she could return before January 12 (the date established by the doctor), she would let him know. Moreno said he would advise Padgett and keep in contact with Alvarado. On December 2 Alvarado spoke to Moreno again about her job. Her condition was such that it appeared she was going to have to start her maternity leave before December 9. She asked Moreno if she would have her job in the sewing machine department when she re- turned. According to Alvarado, Moreno assured her that he had talked with Padgett, and the Respondent was going to hire a part-time employee (Martin Rodriguez) to work in Alvarado's place until she returned. 61 Alva- rado had her baby on December 3. Alvarado testified she received a call at home from Moreno on December 18. Moreno wanted to know if she could return to work before her leave was scheduled to end. He complained that Diaz was making mistakes and Rodriguez was having a lot of merchandise returned. Alvarado promised to check with her doctor and her husband and let him know if she could return early. That same afternoon Al- varado went to the store and informed Moreno that she could not return to work because it was too soon after the birth of her baby. Moreno replied that it was all right and that Rodriguez would work in Alvarado's place in the meantime. He told her to let him know when she was ready to return. On January 7 or 8, Alvarado came to the store and spoke with Moreno. She reminded him that she was going to return to work on January 12. Alvarado stated that Moreno told her she would have to talk with Pad- gett and she would have to present a doctor's release 60 Under the Respondent's system, maternity leave,was treated as any other disability leave and the forms given Alvarado were claims for dis- ability income during the leave period. (See R Exh 117.) 61 Until approximately a month before Alvarado went on maternity leave, the sales force in the sewing machine and vacuum cleaning depart- ment consisted of Moreno, Alvarado, and Gloria Diaz, all of whom were full-time employees. In early November, a part-time employee (Danny Elizando) was hired and Rodriguez was hired on a part-time basis in early December. before returning. Alvarado went to Padgett's office, but Padgett was not available. Several days later, Alvarado called Moreno at the store and asked why it was neces- sary to secure a doctor's release since the forms she sub- mitted to the personnel office indicated she would return to work on January 12. 62 Moreno told Alvarado that Padgett needed the doctor's release. On January 11 Al- varado again called Moreno at the store to inquire about her schedule when she returned to work the following day. Moreno told her she had to have a doctor's release and that she would have to talk with Padgett on January 14. That some afternoon, Alvarado brought a release from her doctor and took it to the personnel office. Al- though Padgett was there, Alvarado stated they did not engage in any conversation. She merely gave the medical release to Delia Flores, the personnel clerk. The follow- ing evening, Alvarado called Moreno at home to inquire about returning to her job in the sewing machine depart- ment. She stated that Moreno told her to come into the store the next day and they would talk with Padgett. Alvarado came to the store on January 14 but was told that Padgett was out of the office." Flores advised Alvarado that she needed to talk with Padgett before re- turning to work. Alvarado left the personnel office and went to the sewing machine department. While there, Moreno filled out Alvarado's employee appraisal form and discussed it with her. Alvarado questioned why she could not return to work as scheduled. Moreno indicated he did not know, but that the employee would have to talk first with Padgett. After Alvarado left the store, she went to the Federal building and spoke with Johnson, the union representa- tive. Alvarado returned to the store from the Federal building about 4:30 p.m. She was informed by Flores that P dgett had gone home but would be in contact with her the next day. The following day Alvarado re- ceived a call at home from Moreno. According to Alva- rado, Moreno stated he could not take her back in the sewing machine department because of instructions given to him by Padgett. Alvarado asked Moreno if he was ac- cusing her of something and he replied that he was not, but "since the trial, everything was different." Moreno agreed to contact Alvarado later. Alvarado testified that on January 16, she went to the Federal building where she saw Moreno sitting in the witness room. Alvarado stated that Moreno complained he was being accused of knowing so much about the union organizing campaign, but that he really did not know anything. Alvarado told Moreno that she merely wanted her job back. She stated nothing further was said in this regard while she and Moreno sat in the witness room. Alvarado returned to the store that afternoon and was paged by Padgett. When she went to Padgett's office she 62 While Alvarado was on leave, she received a second set of disability claim forms from the personnel office. A note was attached asking that the forms be completed correctly. After the doctor filled out the second set of forms, Alvarado's husband returned them directly to the personnel office. The forms indicated that Alvarado would be released to return to work on January 12. 63 Padgett was at the Federal building participating in the hearing on the unfair labor practice complaints that were being tried at that time. MONTGOMERY WARD & CO. 171 WAS told that she could not return to the sewing depart- ment because she had been replaced by two part-time employees. Padgett offered Alvarado a commission sales position in the carpeting department. Alvarado protested that Rodriguez had been hired only as a temporary em- ployee while she was on leave, but Padgett stated she would not remove Rodriguez from the sewing machine department. Padgett offered to put Alvarado on a wait- ing list for preferential rehire in the sewing department if she did not accept the position in the carpet department. Alvarado then asked if she could be transferred to the major appliance department and Padgett indicated she would check it out. During the conversation with Pad- gett, Alvarado complained that she would have to do a lot of heavy lifting because the sales personnel had to pull the heavy rolls of carpeting and linoleum iii order to cut them. She also complained that the sales commission in the carpeting department was less than the 9 percent that she had been receiving in the sewing machine de- partment.6 Later that day, Padgett called Alvarado at home. Pad- gett told the employee that there were no openings in any department except the carpet department. She told Alvarado that she could earn good money on her com- missions in carpeting. Alvarado protested that the com- mission in that department was less than she had been re- ceiving. She accused Padgett of not allowing her to return to the sewing machine department because she had been involved in the efforts to get the Union to rep- resent the employees. Alvarado stated that Padgett did not respond to her accusation. On January 19 Alvarado again came to the Federal building while the hearing was in progress. She sat in the witness room and briefly talked with Moreno, who was also there. According to Alvarado's testimony, Moreno said that when the Respondent won the case, all the em- ployees who testified against the Respondent would be fired. At this point, one of the attorneys for the Re- spondent came in the witness room to speak to Moreno and her conversation with Moreno ended. Moreno denied knowing the date that Alvarado was scheduled to return from her maternity leave. He also denied that Alvarado showed him the claim forms which indicated her scheduled date 0f return. He did acknowl- edge, however, that Alvarado asked him, prior to going on leave, if her job would be available when she re- turned. He stated he told the employee that it would depend on the conditions in the department at that time she came back. 64 Enoc Zumga (formerly in the carpeting department and alleged to be a discriminatee in the prior case) testified that the salespersons in the carpeting department were required to lift heavy rolls of carpeting and linoleum. He stated that while they used machines to do this, it was nec- essary for the salespersons to pull the material out by hand in order to cut it The stock help was supposed to assist the salespersons in moving the rolls, but Zuniga testified they were rarely available because they were always busy with other work Therefore, according to Zuniga, the sales personnel would have to bring stock out onto the floor two to three times a week Zuniga also testified that the commission on direct floor sales was 6 percent; on sales made out of the store, the commission was 8 percent, in addition, the salesperson received a 6-percent commission on all labor for installing the floor covering sold Moreno also testified that while Alvarado's work was satisfactory, she had been replaced in his department by two part-time employees (Elizandro and Rodriguez). Ac- cording to Moreno, when there were three full-time em- ployees allocated to his department, his actual payroll ex- ceeded the amount budgeted for his department. In addi- tion, whenever any of the employees were off, he had to cover the sales floor with "floaters" who were not that familiar with the operation of the department or the mer- chandise being sold. He stated that prior to Alvarado's leave of absence, he had to use floaters four or five times a month. After Alvarado was replaced with the part-time employees, he only had to resort to the use of floaters once or twice a month. He also indicated that by substi- tuting the two part-time employees for Alvarado, he had a lower departmental payroll and better floor coverage. Because of this, his volume of sales increased to the point where he was able to reduce the need for "mark downs" in order to move merchandise; thereby making the department more profitable." Moreno also testified that the work performance of the part-time employees in his department was excellent. He denied calling Alvarado in mid-December to complain about the poor performance of the employees in the sewing machine department, but was unable to recall if he had asked Alvarado to shorten her maternity leave and return early. Moreno admitted, on cross-examination, that based on a report of sales errors given to Hull for the week ending February 4, 1981, he was directed to have a meeting with his sales people because their per- centage of errors far exceeded the standard allowed by the Respondent. (See G.C. Exh. 224,) He also admitted that on March 17, 1981, he was compelled to place Eli- zandro on 30 days' probation because the employee con- tinued to make so many errors. Moreno acknowledged seeing Alvarado on two occa- sions in the witness room at the Federal building during the trial of the prior complaints. He stated their conver- sation only touched on general matters and that he told Alvarado when he was called as a witness, he would tell the truth. He specifically denied telling Alvarado that if the Respondent won the case, all of the employees who testified against the Respondent would be fired. Finally, Moreno testified that after Alvarado came to the store to determine her work schedule, he told her that she would need a doctor's release for the personnel department. Sometime later, Moreno was out of the store and received a call from Gloria Diaz. She informed him that Alvarado was at the store making angry threats re- garding Moreno. According to the information passed on to Moreno, Alvarado stated that Moreno would lose his job, his wife, and family if she did not get her job back in the sewing machine department. Moreno call Padgett and informed her of the threats. Moreno then called Al- varado at home and told her that he had been advised that she made threats against him at the store. He told Alvarado that before she returned to work she needed a 65 According to the testimony of the management witnesses, when sales were "soft," a department had to resort to markdowns on the mer- chandise m order to sell it The greater the number of markdowns, the less profit a department would earn 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD doctor's release. He stated that Alvarado continued to insist that he could give her her job back. Moreno told Alvarado she had to follow the store's procedures before returning to work. At this point, according to Moreno, Alvarado stated that he was getting paid to fire her and that management was nothing but a bunch of "suck- asses." He further testified that Alvarado said that if the Union got in, the employees would get rid of Hull and Gore and she would get rid of him Padgett testified she was responsible for the decision to offer Alvarado a sales position in another department after the expiration of the employee's maternity leave. Padgett stated that sometime in September, she explained to Alvarado the Respondent's maternity benefits and gave the employee the necessary health claim forms to be completed by the employee and her doctor. (See R. Exhs. 115 and 117.) When such forms are returned by an employee, they are processed by the payroll clerk (Tekla Ronnbeck) who signs Padgett's name to the document and forwards them to the Respondent's accounting de- partment in Grand Prairie for processing.66 The policy followed when employees return from dis- ability leave is set forth in Respondent's personnel manual. It states: Reinstatement will be offered provided, of course;, that the former position or a substantially equivalent one is available. If no such position is available the employee will be placed on a preferential hiring list and will be reinstated into the first suitable opening. [R. Exh. 120.] In the case of employees on maternity leave, if they re- turned during the peak seasons or if the turnover in their department was such that there were vacancies when their leave ended, they were normally allowed to return to the same jobs they held when they went on leave. In the absence of these conditions, the employees were either assigned to another department or placed on a preferential rehire list for the department in which they worked prior to going on leave. Padgett also testified that under a new mechanized payroll system (MPS) now utilized by the Respondent, she was required to replace full-time employees who left or went on long-term leave with part-time employees where possible, in order to achieve the new staffing guidelines mandated by Re- spondent's headquarters in Chicago." Padgett stated she first spoke face-to-face with Alvara- do on January 15, 1981. Prior to this, she had talked with Moreno and ascertained that Elizandro and Rodri- guez were working out well. She then decided there was no need to have three full-time employees in the sewing machine department. The use of the part-time employees provided more flexibility in scheduling them as the sell- ing needs dictated. She informed Moreno that she would offer Alvarado a job elsewhere when the employee re- 66 For this reason, Padgett stated she was not aware of the date Alva- rado was expected to return until given Alvarado*s medical release by Flores on January 12 or 13. The medical release indicated that Alvarado was available to return to work on January 14 (R. Exh 116) 67 The mechanized payroll system (MPS) is treated as a separate topic, infra. turned to work. When Padgett left the Federal building on January 14, she instructed Flores to call Alvarado and have her come to the store the following day. Pad- gett offered the employee a position in the carpeting de- partment. She told Alvarado that she had been replaced in the sewing machine department by two part-time em- ployees. Alvarado indicated she did not want to work in the carpeting department and Padgett then offered to put her on a preferential rehire list for the sewing machine department. According to Padgett, Alvarado could not understand why she could not return to her former posi- tion. Padgett then told Alvarado to let her see what she could do. The following day, Padgett called Alvarado on the telephone and told her that the only available opening was in the carpeting department. She stated that Alvara- do would have a greater earning potential. She told Al- varado that based on the earnings of a recently hired em- ployee in that department, her minimum potential was $14,000 a year as contrasted to $8700 she earned in the sewing machine department the prior year. Alvarado stated that she did not want to work for Oscar Palacios, the manager of the carpet department, and Padgett at- tempted to convince Alvarado that she should not let her personal feelings regarding Palacios enter into the matter. According to Padgett, Alvarado stated that she had talked with Tekla Ronnbeck and knew that the Re- spondent had to give her job back because other preg- nant employees had returned to their former jobs. Pad- gett sought to explain to Alvarado that under the MPS being used by the Respondent, part-time employees were being used to replace full-time employees in many in- stances. Alvarado then claimed that Padgett was at- tempting to "walk over her" because she was Hispanic and because she supported the Union. Padgett concluded the conversation by telling Alvarado to do what she thought best. Padgett terminated Alvarado a week later for "failure to report to work after an approved leave of absence." According to Respondent's personnel policy, this meant that Alvarado was not eligible for rehire by the Re- spondent. 2. The changes in the Respondent's payroll system and its impact on the use of part-time employees Padgett and Gore testified regarding the Respondent's practice of increasing the number of part-time employees and reducing the number of full-time employees at the Respondent's store. According to Padgett, this had been an ongoing practice since 1976. She stated she had dis- cussed the possibility of reducing the full-time personnel with Hull in May or june 1980. According to Padgett, it was decided at that time that the only action to be taken would be one of attrition, i.e., to replace full-time em- ployees who left for one reason or another with part- time employees. Padgett further testified that in certain departments, however, this policy could not apply. She cited the warehouse, TV and stereo, furniture, and major appliances as the departments where full-time employees continued to be needed. MONTGOMERY WARD & CO. 173 Gore testified that in September 1980, Respondent started to reduce the number of full-time employees and utilize more part-time employees. This was accomplished when full-time employees went on extended leaves of ab- sence, transfers to other stores, or switched to part-time positions for personal reasons. According to Gore, Re- spondent's headquarters in Chicago audited the McAllen store in November 1980, and pointed out there were too many overlaps among the full-time employees. Gore also testified that Respondent started using a mechanized payroll system (MPS) in place of the manual payroll system in its stores nationwide. Under the manual system, department heads or sales managers were re- quired to prepare payroll worksheets a month in ad- vance. In October 1980, all the Montgomery Ward stores instituted a computerized system that allowed for a more accurate estimate of staffing needs to cover the selling hours. This "fine tuning," according to Gore, allowed the Respondent to use more part-time employees, be- cause of the flexibility of scheduling them to provide coverage when needed as opposed to being locked in to set hours with full-time employees. Padgett testified that in January 1980 (prior to MPS), the ratio of full-time em- ployees to part-time employees in selling areas was 63 percent to 37 percent and in nonselling areas it was 85 percent to 15 percent; thereby giving a total ratio for the store of 72 percent full-time employees and 28 percent part time. After MPS was put into effect (January 1981), the ratios changed dramatically. In selling areas it was 45 percent full time and 55 percent part time. In nonselling areas, it was 79 percent full time and 21 percent part time; giving a storewide ratio of 59 percent full time and 41 percent part time. (R. Exh 122)69 3. The discharge of Gilberto Morales Morales worked in the furniture department at the time of his discharge. He had been active in the union organizing campaign and was one of the employees who signed a letter declaring support for the Union. He also testified at the hearing on the initial complaints regarding conversations with Gore and Frank Perez. According to Morales, he had receivd policy exception notices (writ- ten warnings) on several occasions for poor sales in 1979 and had been placed on probation by Gore. He stated that after he testified on behalf of the Union in October 1980, he began to receive many more policy exception notices—by his estimate, 15 to 20—and was put on pro- bation by Gore in December 1980. He continued to re- ceive policy exception notices after being placed on pro- bation and was terminated by Gore on February 11, 1981. Morales acknowledged that he had been written up in the past for failing to give the proper markdowns on sales and for his handling of customers. 69 Morales stated 68 It is stipulated that the Respondent never advised or consulted with the Union regarding the change in the payroll system or the greater utili- zation of part-time employees, 69 When merchandise is marked down, the salespersons are issued a "football list" which indicates the regular sales pnce and the markdown price. In addition, copies of the football list are usually available in the department affected by the markdowns that he had been warned by Gore for failing to note the proper markdown on sales. According to Morales, there were times when the football list was not available to the sales personnel. He also testified that he had been written up in one incident where a customer wanted merchan- dise that was not available. Morales stated he told the customer this, but she insisted on getting the merchan- dise. The customer ultimately complained and he re- ceived a warning. The triggering incident, according to Morales, occurred when a customer purchased merchan- dise on a layaway plan. The customer came in later to add another item to the account and Morales received verification from Respondent's San Antonio warehouse that the merchandise was available. When the customer liquidated his outstanding balance and wanted the mer- chandise, the additional item was not available. The cus- tomer then rescinded the sale and wanted his money re- turned. Morales told this to Rocha, his manager, and was instructed to make up an ROR and have it approved by Gore. Morales testified that he told Gore and Rocha he wanted to have the matter handled quickly because he was going to be off for 2 days. Rocha assured him that he would handle the problem. When he returned 2 days later, the customer came in and stated he had not re- leased the furniture to the pickup driver because the driver did not have the refund check to give the custom- er. Morales admitted he had advised the customer that the truckdriver would bring a check when he came to pick up the merchandise that had been delivered previ- ously.7° Morales also testified that he received a sales achieve- ment award in 1980 for meeting his sales draw for most of the year. He received a similar award in 1978 and, ac- cording to Morales, qualified for one in 1981. He also stated that in the past, he had received other prizes that were given to sales personnel for good sales perform- ance. Gore testified to a shopping list of policy exception notices issued to Morales for one infraction or another from February 1980 to February 1981. (See R. Exhs. 94- 104, 106-108.) These infractions ranged from failure to put the proper address on a delivery ticket, failure to give a proper markdown on merchandise sold, releasing merchandise from Respondent's San Antonio warehouse for delivery to a customer before the layaway charges were paid, failure to order merchandise from the San Antonio warehouse for delivery to a customer and fail- ing to charge a customer the double delivery fee for de- livering merchandise to two different addresses, failure to get staff approval on a c.o.d. pursuant to company policy, rudeness to the San Antonio warehouse personnel when calling about merchandise, failure to properly handle paperwork on layaway sales, and promising to have a delivery driver give a check to a customer when picking up merchandise for return. Morales refused to sign a majority of these policy exception notices, al- though when questioned at the hearing, he admitted the events stated in the notices did take place. On December 70 It was contrary to the Respondent's policy for truckdnvers to carry checks for customers when they picked up merchandise to be returned to the store. 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18, 1980, Morales was placed on 90 days' probation by Gore with the notation that if he continued to commit similar infractions of Respondent's policies, he would be discharged. Hull testified that several weeks prior to Morales being placed on probation by Gore, he had a corrective inter- view with Morales about his work performance. This was brought about because Rocha complained that Mo- rales failed to show up at the Saturday morning sales meetings to be informed about the proper markups and markdowns. Rocha told Hull that Morales was not giving the customers the correct markdowns on mer- chandise that he sold. Hull stated that when he had this corrective interview with Morales, he noted that if the employee received one more warning, there would be sufficient reason to terminate him. However, no other disciplinary action was taken at that time. On January 21, 1981, Gore called Morales in and went over a recapitulation of all of the past policy exception notices that had been issued to Morales since February 19, 1980. During this interview Gore advised Morales that since being placed on probation on December 18, he continued to perform poorly. The employee was warned that continued poor performance would result in his im- mediate dismissal before his probationary period was over. (R. Exh. 105.) When the incident involving the promise to have the delivery driver give a refund cheek to a customer occurred, Gore called Morales in on Feb- ruary 11, 1981, and terminated him 4. Concluding findings Although the evidence and testimony here is in sharp conflict, it is readily apparent that a number of incidents occurred between employees and supervisors and be- tween employees and members of management during the course of the organizing campaign. The General Counsel contends that these incidents, along with other conduct, resulted in a multiplicity of violations of the Act. The Respondent, on the other hand, argues that it did not engage in any conduct prohibited by the Act. Because of the numerous events to be considered, the al- leged misconduct will be treated in order of the sections of the Act asserted to have been violated. IV. THE 8 ( A ) ( 1 ) VIOLATIONS A. Surveillance and Creating an Impression of Surveillance of Employees Union Activities The General Counsel contends that the organizing meeting held in the McAllen High School park on Sunday, February 3, was being surveilled by Villarreal, the security manager. In my judgment, the record does not support this contention. The testimony discloses that Villarreal, an avowed soccer enthusiast, was parked in a position where he could observe a soccer game taking place in the park. It is also evident from the conversation he had with Broaddus that Villarreal was in fact watch- ing the game and, indeed, commented on a particular play. That some of the employees were gathering for a union meeting at a point in the park some distance from the soccer game does not, without more, establish that Villarreal was at the park for the purpose of surveilling their meeting. There is no indication that Villarreal was aware of the reason the employees were gathering in the park until he was informed by Molina the next day that the employees were holding a union meeting. Nor does the fact that Villarreal reported what he was told and observed to Hull, after being confronted by Molina about his presence at the park, establish that the security manager had prior knowledge of the union meeting or that he went to the park for the purpose of keeping the employees under observation. Rather, it tends to support Villarreal's statement that the informed Hull of the inci- dent in the event his presence at the park became an issue later on. In these circumstances, I find the record does not support the contention that the Respondent's se- curity manager was engaging in surveillance of the em- ployees' union activities in the high school park on Feb- ruary 3. 1. The meeting at the Hilton Inn on Ladies' Night The unrefuted testimony regarding ladies' night at the Hilton makes it clear that this was a popular social event that was well attended by many of the local people in the McAllen-Pharr area. Thus, under normal circum- stances, the presence of four of Respondent's supervisory or management personnel would not warrant any infer- ence of unlawful conduct. There are several factors, however, surrounding their presence at the Hilton on this particular evening that distinguishes it from the situ- ation at the high school park. First, the meeting was held in mid-February and by this time Respondent's management was well aware of the union organizing effort among the employees. Solici- tation of employees to sign authorization cards had taken place at the store and in the parking lot outside of the store. At least one written declaration of support for the Union had been sent to Respondent's management. (See G.C. Exh. 22—Gilberto Morales.) There had also been several conversations between employees and supervisors about the Union, including a conversation on the same day of the meeting between Fred Garcia and Villarreal. During the course of a discussion in his office, Villar- real asked Garcia to identify the employees who had signed authorization cards. Villarreal indicated he was al- ready aware of the involvement of Del Castillo and Molina. He stated he would learn the identity of the other union supporters and keep an eye on them. Al- though Villarreal denied making these statements to Garcia, he admitted having a conversation with the em- ployee in his office that day. Although he testified Garcia volunteered information about the union organiz- ing activity in expressing his reasons for wanting to get rid of his department manager, Temo Gonzalez, I do not credit Villarreal's account of this conversation. I particu- larly note that Villarreal stated this was the first he heard of the union activity among the employees. How- ever, he also testified that Molina had confronted him a week and a half earlier and accused him of observing the employees in the high school park while they were hold- ing a union meeting. This obvious contradiction in Vil- larreal's testimony, coupled with the fact that the union supporters were openly soliciting employee signatures in MONTGOMERY WARD & CO, 175 the parking lot of the store, cause me to conclude that Villarreal's testimony is unreliable. Therefore, I find that Villarreal did identify Del Castillo and Molina as advo- cates of the Union to Garcia and threatened to find out the name of others who were supporting the Union and keep them under surveillance. In light of the above, I find that Villarreal's presence at the Hilton February 14 was not only for the purpose of enjoying the social festivities, but was also to enable him to engage in surveillance of the employees attending the union meeting. My conclusions in this regard are but- tressed by the fact that Villarreal questioned Garcia that same evening in an effort to find out the names of the employees who attended the meeting and what was dis- cussed. He also told Garcia that it was useless for the employees to try to bring a union in the store because the people (management) would not stand for it and the employees would not make any more money. Villarreal's statements make it clear that he was carrying out the threat previously expressed to Garcia to find out who the supporters of the Union were and to keep an eye on them. Accordingly, I find that Villarreal not only cre- ated an impression of keeping the union activities of the employees under surveillance, but that he also engaged in actual surveillance while attending the social event at the Hilton. His conduct violated Section 8(a)(1) of the Act as it tended to inhibit employees in exercising their right to participate in unionization. Additionally, I find that Villarreal's statements to Garcia that Respondent would not stand for the employees to bring in a union carried with it the implicit threat that the Respondent would take retaliatory measures against the employees for seeking to bring in a union. This statement by Villar- real also constituted a further violation of Section 8(a)(1) of the Act. Regarding the other supervisors who attended the ladies' night activities at the Hilton (Delano, Miller, and Ruby), I find that while their presence initially may not have been for the purpose of observing the employees, it subsequently became converted to that purpose as these individuals became aware that a union meeting was being held. Much of their conversation with employees fo- cused on the union meeting. Thus, Ruby asked Fred Garcia in the lounge after the meeting, if the employees had a good turnout." Miller testified that he spoke with Maria Garcia and her husband in the lounge and the sub- ject of union activity also was mentioned. Therefore, it is apparent that while these three supervisors may not have been aware that a meeting was taking place when they first arrived at the hotel, they subsequently acquired knowledge of it. Further, that by their conversations with the employees, they created an impression that they were keeping the union activities of the employees under surveillance. This is true, even though the conversations I do not credit Ruby's testimony that he did not learn until several days later that a union meeting was taking place at the hotel that evening. It is apparent from the testimony of all the witnesses to this event that the supervisors were or became aware the employees were at the hotel to attend a union meeting. Indeed, Ruby acknowledged that he and Delano were wondering why so many of the Respondent's employ- ees were at the hotel and he stated, "The Union may have been men- tioned to some extent." between the supervisors and the employees were friendly and made in a joking manner. Cf. Conagra, Inc., 248 NLRB 609 (1980). 2. The meeting on March 25 The General Counsel asserts that the Respondent, through Chris Rocha, engaged in unlawful surveillance of a union meeting held at the home of employees Caro and Guerra on March 25. It is evident from the testimo- ny that both Rocha and Gore were aware that some ac- tivity was taking place that evening at the home of the two employees. According to their testimony, Caro ex- tended an invitation to Gore and Guerra to Rocha to attend "a party." The testimony of the employees, on the other hand, indicates that Rocha approached Caro and Guerra and asked if he could attend their meeting and was told that he could not. Further, that Gore asked Caro if she was having a meeting or a party at her apart- ment that evening. I do not credit the statements by Gore or Rocha that they were invited by the employees to attend a party. In view of the hostility of management toward the union campaign among the employees, I find it highly unlikely that either of the employees would have extended an invitation to representatives of manage- nient to attend their union meeting. Furthermore, in light or other conduct subsequently found here relating to Gore and Rocha, I do not find their testimony affords a trustworthy version of the events being considered here. Rather, I find that both of these individuals questioned Caro and Guerra regarding the holding of a union meet- ing at their apartment that evening, and that Rocha asked to be allowed to attend the meeting. My finding in this regard is reinforced by the credited testimony of em- ployee Casso, who was present during Rocha's conversa- tion with Guerra. After his request was rejected by Guerra, Rocha sought to persuade Casso to go to the meeting so that he could report back on who attended and what transpired. At the time of the meeting, Rocha drove into the parking lot of the building where Caro's apartment was located and sat in his car so that he could observe, once his presence became known to the employees, Guardiola (the union representative), Molina, and Garcia advised him that he could not attend the meeting. In my judg- ment, this was a patent case of surveillance. There was no legitimate purpose for his presence other than to ob- serve the employees while they were engaged in union activity. This obvious act of surveillance violated Section 8(a)(1) of the Act as it had a clear tendency to inhibit the employees in their activities on behalf of the Union. Delta Faucet Co., 251 NLRB 394 (1980); Wisconsin Beef Industries, 249 NLRB 256 (1980). I also find that by asking Casso to attend the meeting and report back to him, Rocha was seeking to have the employee report on the union activities of other employees. This is a further violation of Section 8(a)(1) as it tends to cause employees to believe such information is being sought to discourage union activities by engaging in reprisals against union supporters. Cummius Component Plant, 259 NLRB 456 (1981); E. L duPont & Co., 257 NLRB 139 (1981). 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Other acts of surveillance and creating an impression of surveillance (a) Chris Rocha: Guerra and Casso testified that some- time in March, Rocha called out to Padgett and an- nounced in a loud voice that all the employees in the fur- niture department had signed authorization cards for the Union. Although Padgett and Rocha denied this state- ment was made, I do not credit their testimony on this issue. Rocha impressed me as a very unreliable witness whose demeanor on the stand made him appear to be less than forthright. Padgett, on the other hand, testified in a straightforward manner, but her statements regard- ing many critical issues appeared to be shaded so as to avoid candid disclosure. This was especially true of her testimony regarding the wage increases granted to em- ployees during the organizing campaign. For this reason, I consider Padgett's testimony, unless specifically cred- ited, to be a less than precise version of the events under consideration. Accordingly, I find that Rocha created an impression that the employees' union activities were under surveil- lance. The nature of the information and the manner in which he announced it to Padgett clearly implied that he was keeping the union activities of the employees under observation. By this conduct, the Respondent further violated Section 8(a)(1) of the Act. Alumbaugh Coal Corp., 247 NLRB 895 (1980); City Products Corp., 251 NLRB 1512, 1518 (1980). (b) Edward Moreno: Yolanda Alvarado testified that on June 13 her department manager, Moreno, told her the Respondent had taken a count and "you all have lost the election." This statement was made to Alvarado 5 days before the election was held. I do not credit Moreno's denial that he made such a statement to Alvarado. It is apparent from the testimony of the Respondent's own witnesses that the store manager was continuously poll- ing the department managers and supervisors to get a count of the union supporters in the store. By informing Alvarado that the Respondent knew the outcome of the election prior to its having taken place, Moreno gave a clear impression that management had been engaging in surveillance of the union activities of the employees. Alumbaugh Coal Colp., supra; City Products Corp., supra. By this conduct the Respondent has engaged in an addi- tional violation of Section 8(a)(1) of the Act. (c) Fred Hull: The unrefuted testimony indicates that in early March, Molina came into the store on his day off and was searching for a particular type of yarn. Hull advised the employee that the store no longer carried that kind of yarn and suggested he purchase it elsewhere. Molina testified Hull followed him through the aisles until he exited the store. Although Hull denied trilling Molina through the store, I find his denial unpersuasive. Molina was a known supporter of the organizing effort and Hull, in a previous conversation with Molina, had warned the employee that if he caught him talking about the Union in the store, he could "walk out the door." I find that Hull's antipathy ,toward the union activities of the employees and his suspicion that Molina, among others, was soliciting employees in the store warrants the finding that he did follow Molina through the store on this occasion. I further find that Hull trailed Molina in order to keep his union activities under surveillance and to make it clear to the employee that he was under ob- servation in the store, even when he was off duty. Such conduct on the part of the store manager violates Sec- tion 8(a)(1) of the Act. K-Mart Corp., 255 NLRB 922 (1981). B. Interrogation and Threats 1. Paloma-Caro: The testimony regarding Paloma's conversations with Caro and other employees of the McAllen store is virtually undisputed. It was late Febru- ary or early March that Caro gave a homecoming barbe- cue party for Paloma and the subject of the employees' union activities was discussed. When Paloma was in- formed that a number of the employees attending the party had signed authorization cards for the Union she asked, "Do you know what you are doing?" This reac- tion on the part of the personnel manager from the Re- spondent's Laredo store carried the unmistakable impli- cation that the employees could expect some form of re- taliation from Respondent for signing authorization cards for the Union. Indeed, Paloma stated she was concerned about Caro, although she professed that she did not be- lieve Caro's job was in jeopardy. If there are any doubts as to the implication of Paloma's statement at the barbe- cue party, they are fully dispelled when her subsequent phone conversations with Caro are considered. Paloma confessed to Caro that she might have identified the em- ployee to her store manager in Laredo as one of the prominent supporters of the Union at the McAllen store. She cautioned Caro to be careful. In my judgment, it is reasonable to conclude that Paloma's words of caution, as well as her expression at the barbecue party, were in- tended to convey to Caro that Respondent's management would retaliate against her in some fashion because of her support of the organizing effort. Such conduct has a decided tendency to inhibit employees in the exercise of rights assured by the Act and violates Section 8(a)(1). 2. Gore-Morales: This conversation is in dispute. Mo- rales asserted Gore stated he did not think Morales would have signed the "union letter" and asked the em- ployee what he thought the Union had to offer. Gore denied having any such conversation with Morales. I credit the testimony of Morales. By his own testimony, Gore spoke with a number of employees regarding the Union. Furthermore, this conversation was consistent with Gore's efforts to discourage employee support for the Union. It is of no consequence that Morales' name was on a letter sent to the Respondent identifying him as a declared supporter of the Union. It has been estab- lished that an employer is not free to "probe directly or indirectly" into an employee's reasons for supporting a union. ITT Automotive Electrical Products Division, 231 NLRB 878 (1977); TRW-United Greenfield Division v. NLRB, 637 F.2d 410, 418 (5th Cir. 1981). Accordingly, I find that Gore did question Morales about his reasons for supporting the Union and that such questioning constitut- ed coercive interrogation in violation of Section 8(a)(1) of the Act. 3. Gore-Ronnbeck: Ronnbeck, the payroll clerk, spoke with Gore regarding the unusual number of wage in- MONTGOMERY WARD & CO. 177 " I A creases being granted to employees during the union or- ganizing campaign. It is clear from Ronnbeck's testimony that she attributed the increases to the union organizing effort. It was during this conversation that Gore stated he had seen her name on a "union letter" and admitted that he was not surprised. Gore had previously been ad- vised by Ronnbeck of her reasons for supporting the Union. It is apparent that Ronnbeck initiated the conver- sation and even if Gore did assert he had seen her name on a letter supporting the Union, I would not find a vio- lation in this context. Gore was not probing to ascertain the sentiments of Ronnbeck regarding the Union. Rather, he was responding to an assertion by Ronnbeck that the Respondent was granting wage increases because of the organizing effort. In these circumstances, I find that Gore did not violate the Act during his conversation with Ronnbeck. 4. Gore-Garcia: Although Garcia testified that he had a conversation with Gore in mid-April, his testimony did not indicate who initiated the discussion about the Union. Gore stated Garcia initiated the conversation by stating that the organizing campaign had nothing to do with Gore personally and that Garcia said he did not want to jeopardize his job (presumably by supporting the Union). In response to his question about what the con- ditions would be like if the Union represented the em- ployees,. Garcia testified Gore stated it would be a "dif- ferent ball game" and indicated points would be assessed against employees for infractions. When enough were ac- cumulated there would be a trial in the store by a "union jury" and if convicted, the offending employee would be fired. Assuming Garcia did initiate this conversation, I do not credit Gore's testimony that he merely told Garcia to do his job and there would be no problem. Having observed Gore during very lengthy testimony, I am persuaded that his account of the events and conver- sations was not completely straightforward. Moreover, in view of the numerous conversations Gore had with em- ployees concerning the organizing effort and considering the patter.i of the sentiments voiced in opposition to the organizing campaign by many members of management, including Gore, I find it reasonable to conclude that he did describe this implausible scenario to Garcia. But im- plausible or not, this prediction of adverse consequences of unionization, without any explanation that the circum- stances would come about for reasons beyond control of the Respondent, could reasonably be regarded as a threat to impose more onerous terms and conditions of employ- ment if the Union became the bargaining representative. Mark Lines, Inc., 255 NLRB 1435 (1981). Therefore, I find Gore's statements to Garcia on this occasion violat- ed Section 8(a)(1) of the Act. 5. Gore-Molina: It is undisputed that after the union or- ganizing drive began, whenever Gore observed Molina together with Garcia and Del Castillo in the Buffeteria, he would refer to the group as the "Mafia" or "Mexican Mafia." Gore attemped to justify these comments by stat- ing they were done in jest and that Molina would re- spond by calling him "El Gore" or "El Gorito." When considered in the context of all the unlawful activity en- gaged in by management officials and supervisors in op- position to the Union, Gore's reference to these three leading adherents of the Union as members of the Mafia takes on an unlawful connotation. Since their prominent role on behalf of the Union was well known throughout the store, not only to the employees but to members of management, it is apparent that Gore was equating their union activity with activities of a criminal element. That his comments may have been made in a humorous or jocular vein does not dispel the coercive impact of the comparison of their efforts to organize the employees with the activities of an organized criminal element. Cf. Houston Coca Cola Bottling Co., 255 NLRB 545 (1981). It is evident that Gore's disparaging references to the em- ployees, even if made in jest, were uttered because of their activities on behalf of the Union. Furthermore, be- cause this was done in the Buffeteria where numerous employees were usually seated during their breaks or lunches, it is apparent that Gore was attempting to hold the three leading union adherents up to ridicule in order to frustrate their organizing efforts. F.W.I.L. Lundy Bras. Restaurant, 248 NLRB 415, 423 (1980). The conversation between Gore and Molina in Gore's office in February is, in my judgment, further evidence of a violation of the Act. Although Gore testified Molina came into his office to assure him that the union cam- paign had nothing to do with Gore personally and Molina would "call off the dogs," if Gore got rid of Temo Gonzalez, I do not credit his testimony in this regard. Rather, I find the statements attributed to Gore by Molina to be consistent with Gore's efforts to dis- courage employee support for the Union. Thus, I find that Gore said the Respondent would have to cut the hours of the employees in order to make a profit, if the Union became the bargaining representative. The Su- preme Court has held that "[An employer] may . . . make a prediction as to the precise effect he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to the demonstrably probable consequences beyond his control . . . ." NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). There was no objective evidence to sup- port Gore's claim that unionization of the employees would cause the store to suffer a loss of profits. I find, therefore, that Gore's prediction was not based on objec- tive fact and his statement to Molina violated Section 8(a)(1) of the Act. Hinky Dinky Supermarkets, 247 NLRB 1176 (1980). 6. Hull-Molina: Having found that the store manager kept Molina under surveillance when the employee came into the store on his day off in search of some yarn, I also find that Hull's conversation with Molina the fol- lowing Monday regarding this incident was unlawful. When Molina told Hull he did not have to follow him in the store and indicated that he was not even the person who started the union organizing drive, Hull asked the employee to give him a few names. Although this re- quest was made in a casual fashion during their conversa- tion, I find, nevertheless, that it was an express solicita- tion for Molina to reveal the names of other supporters of the Union. Such a solicitation constitutes "an imper- missible interference" with the right of the employees to 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD engage in activities on behalf of the Union. TRW-United Greenfield Division v. NLRB, supra. The conversation between Hull and Molina during the first week in February, when the employee complained about Temo Gonzalez, constitutes an additional violation of the Act. When Molina informed Hull he was involved in the union organizing effort, Hull stated a union would not benefit the employees because they would no longer be able to come directly to management with their prob- lems and would have to go to the Union with every complaint. He further stated the employees would not get pay raises as frequently since the union contracts only provided for raises once every 3 years. Although Hull denied making these statements, I find his denial to be unconvincing. Hull set the pattern for management's opposition to the organizing effort and his proclivity for making unlawful' statements to Molina, and to other em- ployees, causes me to conclude that this conversation took place as described by Molina. Hull's comments to Molina misrepresented the rights of the employees to re- dress grievances individually if they were represented by the Union. Section 9(a) of the Act specifically preserves the right of individual employees or groups of employees to approach management in respect to grievances with- out intervention of their exclusive bargaining representa- tive, provided any adjustment of such grievances is not inconsistent with any collective-bargaining agreement in force and provided the bargaining representative is given an opportunity to be present The clear import of his statement to Molina was that this right would be non- existent if the employees selected the Union as their bar- gaining representative. C & J Mfg. Co., 238 NLRB 1388 (1978). In addition, his statement that unionization would limit the employees to one pay raise every 3 years was also a misrepresentation. Clearly, any collective-bargain- ing agreement between the Respondent and the Union had to be the result of mutual consent by the negotiating parties. By implying that the Union could or would uni- laterally limit the frequency of pay raises, Hull was mis- stating facts and thereby indicating that the employees would lose existing opportunities for wage increases if they selected the Union as their bargaining representa- tive. Accordingly, I fmd these statements to be violative of Section 8(a)(1) of the Act. 7. Hull-Alvarado: I do not find the statements made by Hull to Alvarado and Rudy Cerda in the sewing ma- chine department violated the Act. The employees were reading copies of unfair labor practice charges that had been filed by the Union against the Respondent when Hull observed them. By Alvarado's own testimony, Hull wanted to know if she had made any sales that day and that she should be selling instead of reading the material. There is no indication that Hull was even aware of the content of the material the employees were reading. But even if he were, there was nothing unlawful in his insist- ing that the employees return to their work assignments; especially as there is no evidence that they were on break or on their own time when the incident occurred. 8. Hull-Fred Garcia: Garcia also testified that Hull made the statement that his door would not be open to the employees if the Union represented them, and he would not be able to help the employees as he had in the past. Although these comments are consistent with the comments Hull made to Molina, there is one glaring dif- ference in the testimony. Garcia steadfastly maintained that the conversation occurred prior to January 29, the date he signed the union card. He also indicated that the conversation came about because Hull was instructing him not to solicit for the Union in the store. It is clear from the evidence in the record that the first group of employees did not meet with the union organizer until the evening of January 29 at the Hilton. Hence, the ini- tial group of union supporters did not commence their solicitations in the store until after that date. In spite of the obvious inaccuracy in fixing the date of the conver- sation, I find, nevertheless, that Garcia did have a con- versation after the commencement of the organizing drive in which these statements were made. Hull admit- ted that he spoke with Garcia in early February and asked if Garcia had seen anyone handing out union cards in the store. Thus, there was a discussion between the two in which the subject of solicitation of union authori- zation cards in the store was the topic. The fact that Garcia was mistaken as to the date of the conversation does not require a finding that he was also mistaken about the details of the conversation. As noted, the state- ments attributed to Hull by Garcia are consistent with Hull's comments to Molina that the open-door policy of management would no longer be available if the Union became the bargaining representative. I find, therefore, that Hull did in fact make these statements to Garcia and that such statements violated Section 8(a)(1) of the Act. 9. Hull-Del Castillo: The encounter between Hull and Del Castillo on March 1 in which Hull told the employ- ee that if he did not like the way management ran the store he could quit is, in my judgment, an additional vio- lation of the Act. Although Hull testified he made this statement to Del Castillo because he overheard the em- ployee engaging in a heated disagreement with Gore over the handling of a sale, I fmd Hull's explanation falls short of giving the complete account of this incident. Thus, I credit the testimony of Del Castillo in that when he asked Hull what was the problem, Hull replied, "You are the problem" and repeated that Del Castillo could walk out of the "big door in front," if he did not like the way things were being run. At the time of this statement, Hull was well aware that Del Castillo was the leading activist in the union organizing campaign and in view of Hull's other unlawful statements to supporters of the Union, I find more to his comments than the mere ad- monishment of an employee who vocally disagreed with company policies regarding a sale. Implicit in Hull's statements was the fact that Hull considered Del Castillo to be a problem because of his union activities, and his suggestion that the employee quit if he did not like the way things were being run by management constituted an implied threat of discharge. Sans Souci Restaurant, 235 NLRB 604 (1978). Accordingly, I find that Hull's state- ments were coercive and violated Section 8(a)(1) of the Act. 10. Delano-Maria Garcia: The conversation between Delano and Garcia in Frank Perez' office on March 26 (when Delano informed the employee she would receive MONTGOMERY WARD & CO. 179 - a wage increase is another example of unlawful interro- gation of employees by Respondent's supervisors. Delano admitted that during the course of the conversation he brought up the subject of the Union and urged the em- ployee to bring him information on the benefits promised by the Union, so they could be compared with the bene- fits being offered by the Respondent. Delano used this occasion not only to inform the employee she would be receiving a wage increase, but also to express antiunion sentiments. He told Garcia he did not want her to get into trouble and informed her that he was against having the Union in the store. From his statements, Garcia could reasonably anticipate that she would get into diffi- culty with management if she continued to support the Union. Moreover, by coupling his antiunion statements with the announcement of a wage increase, Delano was clearly seeking to undermine Garcia's support for the Union. In this context, his comments graphically demon- strated that the employees needed not be represented by a union in order to receive benefits from the Respondent. I rind this conduct to be a violation of Section 8(a)(1) of the Act:72 11. Delano-Caro: As in the case of Garcia, Delano also spoke to Caro individually on March 26 about the condi- tions in the department and the fact that Respondent was granting wage increases to a number of employees. Al- though Caro was not one of the employees receiving an increase, Delano brought up the subject of the Union during the course of their discussion. He asked the em- ployee why she was trying to help the Union get in the store and informed her that she must be aware of how management knew of her union activities. He also urged the employee to compare the benefits being offered by the Union with the benefits given by management and informed her that she could be fired because of her in- volvement with the Union. Delano's admission that the Union was discussed with Caro on this occasion causes me to conclude that the conversation occurred as de- scribed by Caro. It is evident that Delano was revealing to the employee that management was aware of her union activities and expressly threatening her with dis- charge if she continued to assist in the Union's effort to organize the store. There was no legitimate reason for in- terrogating Caro concerning her union activities and sen- timents and I find such interrogation to be patently coer- cive. Moreover, there was the clear threat to the em- ployee that if she continued to support the Union, she would be subject to discharge. I find these statements by Delano to be coercive and in violation of Section 8(a)(1) of the Act. Sans Souci Restaurant, supra. 12. Frank Perez-Arturo Tristan: As between the con- flicting versions given by Perez and Tristan regarding their conversations at the Eagle Lodge, I credit the testi- mony of Tristan. As a witness, Perez impressed me as one whose testimony did not have the ring of truth. Al- ?2 Delano's other conversation with Garcia on April 4, in which he admonished her for not carrying out the tasks assigned to her by Salge, do not, in my judgment, constitute a violation of the Act. Salge testified she complained to Delano about Garcia and his corrective interview with her was nothing more than an attempt to get the employee to follow the supervisor's instructions. There is no evidence that this repnmand was unwarranted or motivated by unlawful reasons though there was no hesitancy in his responses, he gave the distinct impression of tailoring his answers to serve his own ends rather than to give a truthful account of the events under scrutiny. For these reasons, I reject Perez' testimony when it conflicts with the testimony of other witnesses. Thus, I find that during the conversation at the Eagle Lodge several evenings before the election," Perez brought up the subject of the Union and questioned Tris- tan about his sentiments regarding the Union. When Tristan replied he supported the Union, Perez stated he thought the employee was smarter than that and that the "Valley" was not ready for unionization. Interrogation of this nature has been held by the Board to be coercive probing of employee sentiment, even in the absence of threats of reprisals or promises of benefit. PPG Industry, 251 NLRB 1146 (1980); Freuhauf Corp., 237 NLRB 399 (1978). But Perez' unlawful statements did not end here. He indicated Tristan had not received a raise because of his involvement with the Union and stated that Tristan could be "a hero," if he joined sides with management. When Tristan replied he would do so if he received a raise, Perez told the employee that while he did not promise anything, he would speak to Hull if Tristan would consider supporting management. It is apparent from these statements that Perez was not only asserting that Tristan suffered reprisals for his union activity, but was also promising improvement in his situation if the employee abandoned his support for the Union. Thus, the statements were patently coercive and interfered with the employee's right to engage in union activities. Accordingly, I find the comments by Perez violated Sec- tion 8(a)(1) of the Act. This is true even though the con- versation took place in a friendly atmosphere during a social drink at the Eagle Lodge. It is no defense that a violation is committed in a friendly manner. Houston Coca Cola Bottling Co., supra; Conagra, Inc., supra. 13. David Gonzales-Juan Gonzalez Jr.: Gonzales admit- ted talking to employees in the TV and stereo depart- ment regarding the Union. Although Gonzales stated the subject of the Union came up because an employee (San- doval) complained be was being harassed by other em- ployees for wearing a "Vote No" button, he admitted that other employees were gathered around during his conversation with Sandoval. Although Gonzales denied that he initiated the discussion or that he questioned the employees in his department about the Union, I do not credit his testimony. Rather, I find that the event took place as described by Gonzalez Jr. Thus, I find that David Gonzales called the employees over and inquired if they knew anything about the Union. I further find that he told the employees the Union would not be of any help to the commission sales personnel, but would only benefit the hourly paid employees This probing of employee sentiment and the prediction that the Union would not benefit the employees is coercive and violates Section 8(a)(1) of the Act. 7 3 Although Tristan placed the conversation as occurrmg on June 16 and Perez fixed it as June 12, I do not find this conflict significant The important matter for consideration is the substance of their discussion 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14.Ed Moreno-Gloria Diaz: By asking Diaz if she had signed a union card and by indicating that he knew "more or less" who among the employees in his depart- ment supported the Union, Moreno violated Section 8(a)(1) of the Act. In spite of his denials that he ever questioned any employees, I find that Moreno's testimo- ny is not worthy of belief. Moreno's statements to Diaz were consistent with his unlawful conduct in creating an impression of surveillance of the union activity of the employees in his department. In these circumstances, I find that Moreno not only probed employee sentiment regarding the Union, but that he also made every effort to convince them that he was aware which of the em- ployees in his department supported the Union. I find this conduct further violated Section 8(a)(1) of the Act. 15. Moreno-Alvarado: As previously noted, Moreno told Alvarado that management knew the outcome of the election and they had sufficient votes to defeat the Union. I further fmd that 1 day before the election Moreno advised Alvarado that if the election "does not go through," a lot of employees were going to be fired and that the Respondent intended to first get rid of the "main pushers" for the Union. His statements to Alvara- do constituted an obvious threat that the Respondent was going to take retaliatory action against the support- ers of the Union after the election. It is axiomatic that such threats of reprisal for engaging in union activity constitute a violation of Section 8(a)(1) of the Act. 16. Villarreal-Fred Garcia: As has been noted, Villar- real spoke with Garcia on February 14 and attempted to get the employee to reveal the names of other employees who had signed authorization cards. It was during this conversation that Villarreal stated he would find out who the union supporters were and keep an eye on them. It is clear from this conversation that Villarreal not only was threatening to engage in surveillance, but was attempting to enlist the aid of Garcia in carrying out this unlawful activity. I find this conduct on the part of Villarreal to constitute a violation of Section 8(a)(1) of the Act. Rock Hill Telephone Co., 234 NLRB 690, 696 (1978). C. The Wage Increases The General Counsel contends the wage increases given to large numbers of employees on March 26 (140) and on June 4 (70) were for the express purpose of un- dermining the organizing campaign by unlawfully erod- ing employee support for the Union. The Respondent, on the other hand, contends the wage increases were the result of ongoing programs designed to upgrade the wage structure to make the Respondent competitive in the labor market; especially with its chief rivals—Sears and K-Mart. Therefore, Respondent asserts the wage in- creases were for legitimate business reasons and not in- fluenced by the union activity of the employees. It is settled law that when wage increases are granted during an organizing campaign, it is presumptive evi- dence that the increases are given in order to undermine the Union's efforts to organize the employees and vio- lates Section 8(a)(1) of the Act. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); Chester Valley, Inc., 251 NLRB 1435 (1980); Devon Gables Lodge & Apartments, 237 NLRB 775 (1978); Zarda Bros. Dairy, 234 NLRB 93 (1978). As the Supreme Court stated in Exchange Parts, supra at 409: The danger inherent in well-timed increases in bene- fits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. Therefore, the burden rests on the Respondent to show that the increases here were granted for reasons other than to undermine employee support for the Union and to influence the outcome of the pending election. To this end, Respondent relied on the extensive testi- mony of Padgett to explain the business justification for the large number of wage increases. Other than the normal pay raises, given on or near the conclusion of probationary periods or employment anniversary dates, or raises due to promotions, her testimony indicates the wage increases were the result of longstanding programs. She asserted that the programs were mandated by Re- spondent's corporate, regional, and district offices and supplemented by her own independent surveys of the local marketplace. Although Padgett's testimony and the record evidence appear, at first blush, to overwhelmingly support the business justification for the granting of the wage in- creases on a wholesale scale in March and June, I find that when considered in the context of other factors present here, the Respondent has not overcome the pre- sumption of unlawful motivation. First, the Respondent's avowed animus toward the Union and the numerous in- cidents of unlawful conduct by management staff and su- pervisors cast a large cloud of suspicion over the timing of these wage increases. As the Supreme Court noted in Exchange Parts, "[O]ther unlawful conduct may often be an indication of the motive behind a grant of benefits while an election is pending, and to that extent it is rele- vant to the legality of the grant . . . ." 74 The hostility and the widespread unlawful conduct, in my judgment, give rise to a strong inference that the decision to grant the wage increases was based on a calculated desire to undercut the organizing effort and induce the employees to reject the Union in the pending election. This be- comes all the more apparent when the timing of the June increases is considered. Assuming the factors offered by the Respondent be true and that these increases were au- thorized to overcome the deficiencies revealed by the various surveys, the decision to grant them at a time when the pay raises would be reflected in the employees' paycheck on the day of the election rested solely with management. Padgett offered no explanation as to why this date, as opposed to some later date, was selected to confer a wage benefit on so many of the employees. In this context, I find it reasonable to conclude that the date was selected in order to have the maximum impact on the employees at the time they were scheduled to vote and thereby affect the outcome of the election. Nor is 74 Exchange Parts Co., supra at 410 MONTGOMERY WARD & CO. 181 _ my conclusion in this regard altered by the fact that it is asserted that a large number of wage increases granted in March and June were given pursuant to directives from Respondent's district and regional offices. Although the McAllen store was the only facility confronted with the organizing effort, it is clear that these higher level orga- nizational units were involved in orchestrating the oppo- sition to the union campaign at McAllen. This is evi- denced by the role played by Paul Perez in advising the local management in meeting the threat of unionization and the opinion survey conducted by Respondent's re- gional office. In my judgment, the Respondent cannot in- sulate itself on the local level by claiming that its actions were mandated for business reasons on instructions from higher level organizational units. In sum, when viewed in the context of the strong an- tiunion animus and the many unlawful acts of miscon- duct engaged in by management staff and supervisors, the Respondent has not persuasively established that the wage increases to such large numbers of employees were granted for legitimate business purposes. Rather, these in- creases, one occurring in the middle of the organizing effort and the other on the day of the representation election, compel a finding that the benefits were con- ferred in order to undermine the Union's organizing campaign and influence the outcome of the pending elec- tion. Montgomery Ward & Co., 253 NLRB 196 (1980). Accordingly, I find the Respondent violated Section 8(a)(1) of the Act in granting wage increases to large numbers of employees in March and June 1980. D. The Solicitation of Employee Grievances 1. The opinion survey The General Counsel contends the opinion survey conducted by Respondent's officials in mid-March and the presentation of the survey results in early April re- sulted in unlawful solicitation of employee grievances 'with promises to redress them. There is no question that the employee survey was conducted at the store pursu- ant to a decision by Respondent's regional personnel di- rector in Dallas. As McDonald stated, the survey was conducted because there was a "discipline and morale problem" at the McAllen store. It is also apparent that while the use of unsigned questionnaires to determine the attitudes of employees regarding their working condi- tions and company policies was a legitimate management tool employed by the Respondent throughout its oper- ations around the country, this was the first time such a survey had ever been conducted at the McAllen store; even though the store had been in operation since 1971. Thus, the timing of its use at McAllen, midway the orga- nizing campaign, compels a strong inference that the Re- spondent was soliciting employee grievances and com- plaints for the purpose of identifying and correcting them in order to demonstrate to the employees that rep- resentation by the Union was unnecessary. See K-Mart Corp., 255 NLRB 922 (1981); City Products Corp., supra at 1518. Cf. General Electric Co., 255 NLRB 673 (1981). Respondent contends there is nothing in the use of the survey itself, nor in the actions of those conducting or explaining the results of the survey, that can be said to indiCate'an unlawful objective. I do not find this conten- tion to be supported by the credible testimony or the ob- jective evidence. First, it is quite evident that when the survey was taken and its results announced to the em- ployees, the supervisors and management staff had en- gaged in numerous acts of unlawful conduct, i.e., imper- missible interrogation, threats, surveillance, and creating an impression of surveillance. The fact that the decision to conduct the survey was made at an organizational level above the store unit does not dispel the inference of an unlawful objective; especially when such a survey is conducted in the midst of widespread unlawful activity. It is readily apparent from the testimony of Hull, Paul 'Perez, and Palorna that Respondent's officials throughout the region and the district were well aware of the orga- nizational activity taking place at the McAllen store. Next, it is apparent from the credited testimony that when the results of the survey were announced by McDonald, he conveyed to the employees management's intention to take steps to correct many of the problems about which they complained. For example, Rivera testi- fied McDonald identified reprimanding employees in front of customers as an area of complaint revealed by the survey and he stated, "Management was going to .correct this right away." McDonald also indicated that there were other areas of concern and management would take steps to remedy them. Although McDonald denied promising the employees any solution to their complaints, he admitted telling the employees he would discuss the problems with the store manager and work toward resolving them. Implicit in this statement is a promise to correct the conditions that brought about the complaints. Furthermore, there is evidence that at least one of the conditions revealed by the survey was actual- ly corrected shortly after McDonald spoke to the em- ployees. Prior to the survey, the employees' paychecks were not covered by any other material and simply handed to them out in the open on the sales floor. After the survey revealed this was an area of concern to the employees, the paychecks were enclosed in envelopes when distributed to the employees. Padgett's testimony that she was unaware that it was a districtwide policy to issue employees their paychecks in envelopes, although she had been personnel manager since 1976, and Hull's testimony that he was unaware this policy was not being followed do not carry the ring of persuasiveness. Rather, it is apparent that this condition was corrected after the survey revealed the current practice was a source of the complaint with the employees. Therefore, it is apparent that the Respondent's opinion survey was conducted to enable it to solicit the employ- ees' grievances and complaints. It is also evident that in so doing, the Respondent promised to, and did, take measures to correct the conditions giving rise to the complaints. The purpose of this activity was clearly to undermine employee support for the Union. I find this conduct to be a violation of Section 8(a)(1) of the Act. K-Mart Corp., supra; City Products Corp., supra. 182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Other acts of solicitation of grievances (a) The conversations McDonald had with Fred Garcia and Molina are further evidence of unlawful so- licitation of grievances by the Respondent. These con- versations occurred shortly after McDonald had an- nounced the survey results and told the employees that he would make an effort to resolve their complaints. During his separate conversations with Garcia and Molina, McDonald was informed of their problems with their department manager, Temo Gonzalez, and in each case, the employees expressed fear that derogatory mate- rial was being placed in their personnel files by Gonza. lez. McDonald acknowledged that he not only checked their personnel files and informed the employees that nothing was contained therein that they were not aware of, but he also offered to set up a meeting between the employees and Gonzalez to mediate their differences. Thus, it is evident from McDonald's own testimony that he not only was attempting to identify the source of complaints these two employees had against manage- ment, but was also willing to take direct steps in order to assist in rectifying them. This action on the part of McDonald was consistent with the overall purpose of the written survey and was, in my judgment, intended to demonstrate to the employees that their problems could be resolved without resorting to union activity. 75 As- with the survey and the announcement of its results, I find that McDonald's actions were unlawful attempts by management to solicit and remedy employee grievances in order to undermine their support for the Union. This conduct was a further violation of Section 8(a)(1) of the Act. K-Mart Corp., supra. (b) The conversation between Molina and Paul Perez on the evening of March 20 does not constitute unlawful solicitation of grievances nor a promise to remedy the employee's complaint. Molina initiated the meeting with Perez when he called the Respondent's regional office to complain about his suspension by Temo Gonzalez earlier that day. He was directed to Perez who was then visit- ing the McAllen store. Although I credit Molina's testi- mony in most instances, I do not credit his statement that Perez asked what it would take to get Molina to help defeat the Union or that he stated Molina had to prove himself before any action could be taken on his com- plaints. Not only do I find it extremely unlikely Perez, the area labor relations manager, would have made such a blatant unlawful overture to one of the leading union activists, but I also fmd that Molina's testimony regard- ing this particular conversation was exaggerated in order to implicate Perez in unlawful activity. 76 Therefore, I 75 I do not fmd it necessary to resolve the conflict between the testi- mony of Molina and McDonald about whether McDonald indicated he had removed any derogatory information from the personnel files of Garcia or Molina. In my judgment, it is sufficient that after hearing the employees' complaints, McDonald examined their personnel files and re- ported back to them in order to alleviate their fears 76 Although this findmg affects the reliability of Molina's testimony re- garding his conversation with Perez, I do not find that Mohna's testimo- ny regardmg other incidents or conversations to be unreliable or unwor- thy of belief. I simply do not credit this part of Molina's testimony. See the comments of Judge Learned Hand in NLRB v. Universal Camera Corp., 179 F 2d 749, 754 (2d Cir. 1950). find that Perez was merely listening to Molina's unsolic- ited complaints about the store management during their conversation on March 20 and that he later took it on himself to investigate the validity of these complaints without any prior promise, expressed or implied, to the employee to remedy them. The fact that Perez' subse- quent investigation substantiated Molina's complaint about Gonzalez requiring the sales personnel in the major appliance department to work off the clock and that Perez directed Hull to correct this situation does not indicate that the grievance was solicited with a promise to remedy it. Similarly, the fact that Perez told Hull to treat Molina as if he were not involved in any union ac- tivity and cautioned Hull to look into the circumstances surrounding Molina's suspension, does not, in the circum- stances detailed above, warrant a fmding of unlawful conduct by Perez. Therefore, I find that during the con- versation regarding Molina's complaints against the store management the Respondent, through Paul Perez, did not solicit grievances with a promise to remedy them. Hence, no violation of the Act was committed. E. The No-Solicitation Rule and its Enforcement The rule prohibiting solicitation in the store or on the sidewalk is, on its face, impermissibly broad. It is settled law that in retail stores an employer may lawfully pro- hibit all solicitation on the selling floor, but is not privi- leged to bar employees from engaging in such activity in nonwork areas during nonworking times, such as breaks and lunch times. Marshall Field & Co., 98 NLRB 88 (1951), modified on other grounds and enfd. 200 F.2d 375 (7th Cir. 1952); Montgomery Ward & Co., 145 NLRB 846 (1964), modified on other grounds 339 F.2d 889 (6th Cir. 1965); Miller's Discount Dept. Stores, 198 NLRB 281 (1972), enfd. 496 F.2d 484 (6th Cir. 1974). Here the posted rule prohibited all solicitation, by em- ployees and nonemployees alike, within the store prem- ises without regard to selling or nonselling areas. Nor did the rule distinguish between working time and paid nonworking time, i.e., breaks or lunch periods. There was simply a blanket prohibition against solicitation in the store or on the sidewalk. Furthermore, it is apparent from the record that the rule was enforced solely to pre- vent union solicitation in the store. Indeed, Hull testified that although the rule had been in effect since the store first opened in 1971, he did not direct that it be posted until the union organizing campaign began in 1980. Moreover, there is ample evidence to demonstrate that the rule was discriminatorily enforced in order to thwart union solicitations while allowing other forms of solicita- tion to go unimpeded. Ther unrefuted testimony reveals that a supervisor (Carlos Sandoval) openly solicited em- ployees throughout the store to participate in sports bet- ting pools; employees solicited other employees for the sale of Avon products; and outsiders, such as a local pol- itician and Girl Scouts, were permitted to solicit for po- litical support and sales of cookies in the store. Further evidence of the discriminatory enforcement of the rule is found in the various warnings issued by Hull and Pad- gett to employees they suspected of soliciting on behalf of the Union in the store. Padgett, on being informed - MONTGOMERY WARD & CO. - 183 that Ray Gonzalez was passing out union authorization cards in the receiving area of the store, told Gonzalez he could not pass out union cards on "company time." Simi- larly, Padgett told Lynda Rivera that she had been ob- served passing out union cards on "company time" and warned the employees she would be subject to discipli- nary action if it occurred again. Although I am not un- mindful that Rivera admitted, during her testimony, that she had been passing out union cards on the sales floor but made no mention of this fact to Padgett, I do not credit Padgett's testimony that Rivera sought and she granted the employee permission to solicit in the Buffe- teria. Rather, / fmd Padgett, consistent with the posted ntle, warned the employee about soliciting on "company time." Finally, Hull observed Molina talking to several employees in a group on the sales floor and warned that if he saw Molina soliciting in the store, the employee could "walk out of the door." In my judgment, the foregoing not only evidences dis- parate enforcement of an overly broad no-solicitation rule, but also demonstrates that management considered the entire store off limits to union solicitation. Accord- ingly, I find the no-solicitation rule as promulgated by the Respondent to be invalid for all purposes. Times Pub- lishing Co., 231 NLRB 207, 208 (1977). I further find that Respondent's enforcement of the overly broad no-solici- tation rule was discriminatory and interfered with the right of employees to engage in union activity. By this conduct, I find the Respondent has violated Section 8(a)(1) of the Act. Miller's Discount Dept. Stores, supra. F. The Forcible Removal of the Union Representative from the Buffeteria Having found the no-solicitation rule promulgated by the Respondent to be unlawfully broad and discrimina- torily enforced, I find its application to Johnson, the union organizer, on March 19 to be a further violation of the Act. Review of the testimony reveals that Hull gave Johnson permission to talk to employees in the Buffeteria during their breaks, but subsequently revoked this per- mission on learning that Johnson had been on the sales floor inviting employees to meet with her in the Buffe- teria on their breaks. At the time of her ejection, John- son was seated at a table, eating food purchased from the counter and conversing with employees who were right- fully in the Buffeteria on permissible breaks. Because the facility was operated for use by the general public as well as by the employees, it is evident that Johnson was using this public cafeteria in a manner consistent with its intended purpose. Montgomery Ward & Co., 256 NLRB 800 (1981). There is no question that the Respondent's officials could have lawfully prevented Johnson from so- liciting employees on the sales floor. But as to whether her advising employees on the sales floor that she would be available in the Buffeteria to discuss the Union during their breaks rises to the level of solicitation is another matter. Assuming arguendo, however, that her conduct in this regard was in fact solicitation, by calling the police and forcibly ejecting her from the Buffeteria, where her conduct there was not incompatible with its use, Respondent was making it evident to the employees that its no-solicitation rule prohibited all union solicita- non on the store premises, including the public cafeteria. This the Respondent cannot lawfully do. Therefore, I find that by this conduct, Respondent violated Section 8(a)(1) of the Act. Cf. Montgomery Ward & Co., supra. V. THE VARIOUS VIOLATIONS OF SECTION 8(A)( 3 ) The General Counsel contends the Respondent dis- charged Baldemar Flores and Reynaldo Gonzalez in February because these two employees were involved in activities on behalf of the Union. There is no question that both Flores and Gonzalez were active in soliciting employee signatures on union authorization cards and at- tended union meetings during the early part of the orga- nizing campaign. It is also evident from the credited tes- timony of Gonzalez that Padgett was aware he was so- liciting signatures on authorization cards in the store. Taking into consideration the antiunion animus demon- strated by the Respondent and its widespread misconduct during the organizing campaign, it is evident that the General Counsel has made a prima facie showing that the union activities of these two employees was a moti- vating factor in the decision to terminate them in mid- February. This is especially true in the case of Gonzalez because of statements made to him by Ruby, when Gon- zalez was working in Ruby's private landscaping business after his discharge. On the first occasion, Ruby advised Gonzalez not to come to the store to talk to him Gonzalez indicated that Ruby stated Hull did not want the former employee in the store "passing out things" and that he had been dis- charged because he signed a union card. While acknowl- edging that he told Gonzalez not to come to the store to discuss the landscaping business with him, Ruby indicat- ed he did so because Hull had admonished him not to conduct his private affairs in the store. On the second occasion, when Ruby and Gonzalez had finished a land- scaping job and were drinking beer in Ruby's truck, Gonzalez expressed the opinion that he was probably discharged because of his union activities and Ruby re- plied, "You probably was, you asshole." Under the analysis mandated by the Board in situations in which dual motivations exist for terminating employ- ees, I find, however, that the Respondent has effectively established here that Flores and Gonzalez would have been terminated in any event, absent any union activity on their part. See Wright Line, Inc., 251 NLRB 1083 (1980). The testimony of Gore and Padgett, as well as the Respondent's records, demonstrate that after the post-Christmas inventory (taken in January), sales activi- ty declines substantially, briefly increases during the Easter season, and significantly increases during the back-to-school season beginning in August. The record also bears out Padgett's testimony that during the slack period after Christmas, Respondent usually reduces per- sonnel in nonselling areas. As the Respondent does not have a recall policy, employees so terminated are rehired only if they apply at times when sales activity has in- creased and there are vacancies available that they can fill. Thus, I credit Gore's testimony that he, on direction from the district office, began to terminate employees in 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the nonselling areas. I further find that when the decision was made to reduce the receiving department by two employees, Gore and Padgett decided that the employees who would be terminated would be the last two employ- ees hired in that section; in this case, Flores and Gonza- lez. The General Counsel's effort to show that other em- ployees were transferred into the receiving department to replace Flores and Gonzalez is not supported by the record. Aleniz, who worked in security under Villarreal, was not transferred to the receiving department until April (when the Easter season commenced) and no other employees were hired in or transferred to the receiving department until August (when the back-to-school season started). For these reasons, I find that both Flores and Gonzalez would have been selected for termination in mid-February even in the absence of any union activity on their part. Accordingly, I find that the Respondent did not engage in conduct that violated the Act when it terminated Flores and Gonzalez. A. The Suspension of Molina The issue of whether the suspension of Carlos Molina was motivated by unlawful reasons is a close question. The record fully demonstrates that Molina initiated a confrontation with his supervisor, Temo Gonzalez, on March 20 when the latter was checking pens of the sales personnel in his department in an effort to find out who changed the price tag on a washing machine. It is equal- ly evident that when Gonzalez told Molina to punch out and go home, he was acting well within his supervisory authority. There had been a confrontation between the two on the preceding day over Gonzalez' instructions to Molina to clean some refrigerators delivered from the warehouse and this final confrontation, on March 20, was brought about by Molina's unwarranted intrusion into Gonzalez' efforts to manage his department. Thus, I find that the disciplinary action taken by Gonzalez at that point would have occurred regardless of Molina's union activities. It is what followed that casts the suspension in a dif- ferent light. Molina was put in contact with Paul Perez after his call to the Respondent's regional office and their discussion caused Perez to look into the facts of Molina's suspension. When Hull called Molina into his office to sign the written reprimand (policy exception notice) charging the employee with rudeness and insub- ordination toward his supervisor and placing him on dis- ciplinary probation for 30 days, Hull was likewise fol- lowing the accepted practice in imposing discipline against the offending employee. There is nothing that in- dicated this degree of discipline would not have been im- posed even if Molina had not been involved in union ac- tivity. When Molina refused to sign the policy exception notice, an argument ensued between the employee and Hull. I credit Molina's testimony that Hull then suspend- ed him for 30 days, although the written notice stated the discipline was' to be probation for the period. It is clear from the testimony that Molina understood Hull to say he had been suspended, and that Hull was unable to recall whether he told the employee he did not want to see him around the store until the 30 days had expired. Thus, I find there was no misunderstanding and that Hull in fact suspended Molina during the disciplinary inter- view. That Hull rescinded the suspension and reinstated the original disciplinary action later the same morning does not rule out the strong inference that the suspension was imposed, in the first instance, because of his enmity against Molina because of the employee's activities on behalf of the Union. Indeed, the records introduced by the Respondent indicate that other employees, on occa- sion, refused to sign policy exception notices and no greater degree of discipline was imposed, other than that indicated on the written reprimand, In this instance, however, a more stringent penalty was imposed by Hull, albeit briefly. In these circumstances, and considering the numerous instances of misconduct by Hull, I find his ac- tions warrant the inference that the suspension was im- posed because of Molina's activist role on behalf of the Union. In so doing, Hull discriminated against the em- ployee in violation of Section 8(a)(3) and (1) of the Act. B. The Written Warnings Issued to Alfredo Garcia Although the records amply demonstrate that Garcia received a number of policy exception notices between December 1979 and July 1980, the parties are in dis- agreement regarding the conclusion to be drawn from the issuance of such a large number of warnings to a known union adherent. The General Counsel contends these written reprimands were issued to Garcia in retalia- tion for his union activities and to discourage him from engaging in such conduct. The Respondent, on the other hand, argues that each of the policy exception notices issued to Garcia were justified because the employee re- peatedly committed infractions of Respondent's store policies in handling his sales duties. In my judgment, the record here does not support the allegations of the Gen- eral Counsel. First, the history of Garcia's past employment with the Respondent indicates that one of his principal problems stemmed from a failure to follow through on complaints of customers. Further, that he was discharged in 1975 by the Respondent for failing to correct this deficiency. His subsequent rehire by Hull was conditioned on is over- coming this flaw in his sales performance. Second, after being rehired, it is evident that Garcia continued to expe- rience difficulties in delivering what he promised to cus- tomers. Thus, his performance appraisal in August 1979 carried the notation that Garcia generated a great volume of sales, but "failed to accomplish what he prom- ises to customers." (R. Exh 7) Although it is clear that the bulk of the policy exception notices in the record were issued to Garcia during the time of the union orga- nizing campaign, it is also apparent that each of these no- tices (with one exception) involved a failure on the part of Garcia to properly service a customer. Indeed, Garcia acknowledged that the underlying facts set forth in each of the policy exception notices were accurate. Even when he sought to explain away the circumstances, he nevertheless admitted that the incidents occurred. Ac- cordingly, it is clear that there was nothing pretextual about the underlying basis for the issuance of these policy exception notices to Garcia. Nor does the record reflect that the Respondent condoned or excused such MONTGOMERY WARD & CO. 185 infractions of its sales policies in the past, either by Garcia or any other salesperson, by not issuing a policy exception notice to the offending employee. Thus, while it is true that the General Counsel has made a prima facie case demonstrating that a large number of written reprimands were issued to an employ- ee who was active on behalf of the Union, I find that the Respondent has met the burden of overcoming this evi- dence by establishing that each of the policy exception notices was justified on the basis of Respondent's busi- ness practice and, more importantly, would have been issued to Garcia regardless of whether he was engaged in union activities. In these circumstances, I find the Re- spondent has not committed any violation of the Act by issuing policy exception notices to employee Alfredo Garcia after the commencement of the union organizing campaign. C. The Discharge of Employee Mary Guerra The record demonstrates that Guerra was a principal activist on behalf of the Union and, further, that Re- spondent's management was fully aware of her union ac- tivity, both in the 'store and after store hours. Guerra not only solicited employee signatures on authorization cards in the parking lot, she also attended union meetings and held a number meetings at her home. It has been found that during one such meeting, at least two of Respond- ent's officials, Gore and Rocha, were aware that a union meeting was going to be held at Guerra's home, and that Rocha subsequently engaged in unlawful surveillance of that meeting. The record also discloses that Guerra failed to meet the Respondent's standards for commission sales over an extended period of time. 77 When Guerra was first transferred from a noncommission sales area into major appliances in the fall of 1979, she failed to meet the required sales standards. After 6 weeks, she was transferred to the furniture department and granted a new grace period. Here again the record reflects that she failed to meet the commission sales standards for two consecutive 4-week periods ending March 12. It is in this context that the reasons advanced for Guerra's discharge on April 2 must be considered. As justification for the termination of Guerra, the Re- spondent points to its documentation of her failure to meet the commission sales standards while in the furni- ture department and to the "corrective interviews" with Gore regarding this matter. At first blush, it would appear the Respondent has fully demonstrated that Guerra would have been terminated in any event, with- out regard for the union organizing campaign or her union activity. However, there are other factors present here that are either ignored or have not been persuasive- ly explained by the Respondent. It is evident from Guerra's credited testimony that when she found herself below the commission sales standards, she brought the matter to management's atten- 77 As previously noted, the Respondent's policies required that com- mission salespersons who failed to meet their weekly draw (against sales) for two consecutive 4-week periods or any three 4-week periods in a given year be terminated or transferred to a noncomrmssion sales area. The first 4 weeks that a person works in a commission sales area is con- sidered a grace period that does not count toward meeting this standard. tion on several occasions. Each time she was given assur- ances that she need not worry about her job. For exam- ple, Guerra testified she confided in Hull, sometime in March, that she was having personal problems that inter- fered with her sales performance. She further asked Hull if she could transfer to another department because her sales were low. Hull informed Guerra that she did not have to worry about her job. On another occasion in mid-March, when Guerra was called into Gore's office concerning her low volume of sales, she was told that management was going to "let it ride" because she was a good employee and the Respondent did not want to lose her. Although these verbal assurances did not indicate that Respondent was not going to hold Guerra to the Commission sales standard, they certainly implied that management did not intend at that time to enforce the standards to terminate Guerra's employment. Further evidence of this view is reflected in Padgett's comments with Guerra when the discussion centered on Guerra's request to transfer to a noncommission selling position in the cosmetics department. During that conversation, Padgett cited the example of an employee who took over a year to meet Respondent's commission sales standards. Thus, until certain events involving the Union occurred, Respondent's management made it clear to Guerra that 'while she should strive to meet the sales standards, her employment was not in jeopardy. In spite of these assurances, Guerra sought to effectu- ate a transfer to a noncommission position in order to maintain her employment with the Respondent. After a conversation in February with Mary Gonzalez, manager of the cosmetics department, Guerra was called in by Padgett and questioned about a transfer to that depart- ment. Although Padgett testified that she offered a posi- tion in this department to Guerra and the employee re- fused it because she felt the job in the furniture depart- ment was a challenge, I do not credit her testimony. I find that this interview was the result of the inquiry by Gonzalez and that Guerra was receptive to such a change. Moreover, it was consistent with her efforts to find a noncommission position elsewhere in the store. Be- cause of the concern for her low volume of sales, reflect- ed in her discussions with Gore and Hull, I find it highly improbable that Guerra would have deliberately rejected a position in a department where the commission sales standards did not apply. Thus, I find that Padgett per- suaded the employee to remain in the furniture depart- ment. The record, however, reflects that Guerra's efforts to transfer to a noncommission position did not cease, and she attempted to persuade Frank Perez and Hull to trans- fer her to the display department. Because there were no available openings there, her efforts in this regard were unsuccessful. One other critical factor deserves mention at this pos- ture. Although Guerra failed to meet the commission sales standards for the second consecutive 4-week period ending March 12, she was not terminated until April 2. This focuses attention on the intervening events involv- ing the Union and the question of whether they had a bearing on the decision to discharge Guerra. More spe- 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cifically, the union meeting held at Guerra's home on March 25 was kept under unlawful surveillance by her department manager. On March 26, a letter signed by Guerra was sent to the Respondent in which the employ- ee declared her support for the Union and its organizing effort at the store. It was shortly after these two events that Guerra was called in on April 2 and terminated for failure to meet the commission sales standards.78 Considering all of the circumstances, I find, on bal- ance, that the decision to discharge Guerra was unlaw- fully motivated. In so doing, I deem the following to be significant considerations: (1) the Respondent's demon:. strated hostility toward the union organizing campaign and its propensity to engage in unlawful conduct to dis- courage employee support of the Union; (2) the verbal assurances given Guerra that her job was not in jeopardy even though she failed to meet the commission sales standards for the furniture department; (3) Padgett's at- tempt to distort her testimony to make it appear that Guerra refused a noncommission selling position when, in fact, the employee was seeking such a position in order to protect her employment; (4) a union meeting, which management knew about and unlawfully sur- veilled, was held at Guerra's home shortly before her discharge; and (5) management received a letter declar- ing Guerra's support for the Union shortly before the de- cision was made to discharge her. Weighing the above factors, including the justification offered by the Respondent, I am constrained to conclude that Guerra would not have been terminated by the Re- spondent on April 2 had she not been involved actively in the union organizing effort. Stated another way, I find that the Respondent has not persuasively demonstrated that Guerra would have been terminated in any event on this date, absent her union activities. Wright Line, supra. Therefore, by terminating Guerra, the Respondent has violated Section 8(a)(3) and (1) of the Act. D. The Discharge of Enoc Zuniga As in the case of Guerra, Zuniga's termination on July 15 was for failure to meet the commission sales standards (in the carpet and floor covering department) for two consecutive 4-week periods. It is uncontroverted that Zuniga was a member of the union organizing commit- tee, attended meetings, and solicited signatures on au- thorization cards. 79 It is also uneontroverted that Zuniga failed to meet his sales draw for a 4-week period ending June 4 and was called in by Gore for counseling. Zuniga was warned that he would be terminated if he failed to 79 The above analysis does not take into account the contention of the General Counsel that Guerra was unable to achieve the requisite volume of sales because her department manager, Rocha, had her performing dis- play work or refused to allow other experienced employees to assist her in making sales For the purposes here, it is sufficient that Guerra was below the commission sales standard and the Respondent asserted this as the basis for her discharge. 79 Zuniga's department manager, Palamos, testified he was aware of Zuniga's union involvement, but did not pass this information on to Gore. Nevertheless, considering that the record establishes that Hull polled his department heads during weekly management meetings to assess the number of union supporters among the employees, I find it rea- sonable to conclude that Palacios' knowledge of Zuniga's union activities are passed on to higher management. meet the sales standard for the next consecutive 4-week period. 80 After failing to meet the sales standards for the second 4-week period, Zuniga went on vacation. While he was on vacation, the Union sent a notification to the Respondent identifying Zuniga as one of a group of em- ployees selected as "in store representatives" for the Union. The first day that Zuniga returned from vacation, he was terminated by Gore. Considering the above, I am of the opinion the Re- spondent has met the burden of establishing that Zuniga would have been terminated in any event; whether or not he had been involved in union activities. The single most important factor the General Counsel relies on here is that Zuniga was identified as an in-store representative for the Union while the dispute between the Union and the Respondent was continuing. This argument, howev- er, ignores the fact that the Respondent, through Gore, warned Zuniga he would be terminated if he failed to meet the sales standard for a second consecutive 4-week period. Unlike the situation involving Guerra, no state- ments were made to Zuniga implying that he did not have to worry about the consequences of failing to meet the commission sales standards. Rather, he was pointedly told the standards would be applied and if he failed to achieve them, he would be terminated. At this point, the Respondent had not received the letter identifying Zuniga as one of the in-store representatives for the Union. Thus, when Gore terminated Zuniga, his actions were no different than that expressed to the employee during the corrective interview after the first failure to meet the commission sales standard. In the absence of more, I find the Respondent would have discharged Zuniga in any event. Wright Line, supra. In light of this finding, I conclude that the Respondent has not violated Section 8(a)(3) and (1) by discharging employee Enoc Zuniga on July 15. E. The Discharge of Javier Del Castillo It cannot be gainsaid here that Del Castillo was the principal union activist among the employees. Nor is it disputed that Respondent's supervisors and managerial officials were fully aware of the leading role he played in the union organizing effort. The record is also laced with evidence which reveals that because of his activist role, Del Castillo was the target of disparaging and coercive comments from Hull, Gore, and Temo Gonzalez. Their antipathy toward the Union, and toward Del Castillo in particular, is fully disclosed in the record. However, the Respondent contends, and correctly so, that the protect- ed activities of a known union adherent do not shield him from discipline or discharge when the action taken against him is not based on his union activity. See Cen- tral Freight Lines, 255 NLRB 509 (1981). Respondent 80 The General Counsel makes much of the fact that during this cor- rective mtervtew, Gore told the employee that he would be terminated but that during a similar interview in 1979, Gore stated the employee would be terminated or transferred to a noncommission position I attach no significance to this omission in the latter interview since transfers to noncommission positions were not automatic under the Respondent's policies Whether an employee was transferred or terminated depended on a myriad of factors that have no relevance here MONTGOMERY WARD & CO. 187 argues that Del Castillo was terminated solely for the reason that he violated company policy and procedure in handling even exchanges of merchandise to receive double commissions on a single sales transaction. There- fore, Respondent asserts that Del Castillo was discharged for reasons unrelated to his union activity. In my judgment, the record does not support the Re- spondent's contention. The manner in which the investi- gation of his violation of company policy was initiated, the timing of the investigation, the open hostility exhibit- ed by Respondent's supervisors toward Del Castillo be- cause of his union activities, the surreptitious change in his 1980 performance appraisal after the commencement of the organizing campaign, and the willingness of the Respondent to discredit its own records in order to dem- onstrate that Del Castillo was an unsatisfactory employee cause me to conclude that he was discharged for reasons other than the reasons asserted by the Respondent. First, the testimony of Respondent's own witnesses as to how the issue of Del Castillo's even-exchange RORs came to management's attention is conflicting. Hull stated that in late January, Terno Gonzalez showed him an ROR completed by Del Castillo (presumably prior to the union campaign) and complained that Del Castillo had filled it out in a fashion that would allow him to re- ceive a double commission. Hull asserted he then in- structed Villarreal to make an investigation and report back to him Villarreal, on the other hand, testified he was given a Del Castillo ROR by Hull on March 19 or 20 (well after the Respondent became aware of the union organizing effort and Del Castillo's role in it). Pruneda fixed late January or early February as the time when he spoke with Gonzalez about Del Castillo's RORs, while Gonzalez stated Pruneda brought the matter to his atten- tion in early March and he in turn spoke to Gore about it. In my opinion, these conflicting statements are more than the mere product of faulty memories. Rather, they indicate Respondent's efforts to portray its knowledge of the manner in which Del Castillo processed even-ex- change RORs as a recent discovery, which only coinci- dentally came to light during the organizing campaign, to be made of whole cloth. It is apparent from the testi- mony of Del Castillo and Pruneda that for more than a year, it was common knowledge in the major appliance department that Del Castillo omitted the prefix "9" from his even-exchange RORs when the exchange was more than 30 days after the original sale. 81 In addition, the s' I am not unmindful of Del Castillo's testimony that he had never been instructed regarding the procedure for handling RORs on even ex- changes It is clear that he attended sales meetings over the years where the subject matter was discussed and, Indeed, signed or initialed docu- ments showmg that he was conversant with the material relating to this subject. I find his disclaimer of knowledge about the Respondent's in- structions to be a misguided attempt to portray himself as being unin- formed about the procedures for even exchanges of merchandise Never- theless, contrary to the Respondent, there was a colorable basis for the manner in which he processed even-exchange RORs because it was the Respondent's policy to consider all sales, for commission purposes, final after 30 days The policy applied even when the item involved was sub- sequently returned by the customer. But it is irrelevant to these proceed- ings whether a colorable basis for his position existed, as it is squarely within the Respondent's business prerogative to determine the procedures to be followed in processing even-exchange RORs. manner in which Del Castillo filled out even-exchange RORs was the subject of a longstanding dispute between Pruneda and him. Furthermore, each such ROR and its accompanying sales ticket had to be approved first by the department manager and then by the operating or the store manager. Therefore, Respondent's assertion that such approval was routine and did not involve ex- amination of the documents lacks persuasive force; this is especially true since the transactions involved "big ticket" items. From this, I fmd it reasonable to infer that Respond- ent's management, both at the department and staff level in the store, was aware of Del Castillo's deviation from the required procedures in filling out even-exchange RORs and his reasons for doing so. Further, his actions in this regard were apparently ignored by management until January 1980, when Gore rejected an ROR and in- structed Del Castillo to place the prefix "9" on all even exchanges. My finding in this regard is further substanti- ated by the fact that after the investigation was conduct- ed in March 1980, the only documentation presented by the Respondent related to transactions that occurred in 1979. It is reasonable to assume that had there been any evidence that Del Castillo continued to fill out even-ex- change RORs in his customary fashion after his conver- sation with Gore in January, the Respondent would have presented it at the hearing. This compels the strong in- ference that the Respondent was looking for any infrac- tion which would ostensibly justify discharging Del Cas- tillo and seized on the even-exchange RORs of a prior year, about which it had previous knowledge, to accom- plish this objective. In so doing, the Respondent was in a position to rid itself of the foremost union activist in the store. Additional evidence that Del Castillo's union activities inspired the action taken against him is reflected in the report of the investigator sent from the regional office to track the RORs. In the report, Del Castillo is described as "one of several employees who have been actively in- volved in union activity and attempted organization," Although it is asserted this was simply an innocuous part of the background information on the employee, I find in the circumstances here, that it takes on a more ominous meaning and was intended to flag the true basis for the investigation. Nor is this the only evidence in the record indicating Del Castillo was targeted for retaliatory treatment be- cause of his union activities. In the years 1977 through 1979, the Respondent rated Del Castillo as an above-av- erage employee on his performance appraisals. In con- trast, in 1980, he was rated by his department manager as merely "satisfactory." 82 However, when the appraisal was sent on to Hull in mid-February, he changed the rating to "unsatisfactory." Contrary to Respondent's own policies, Del Castillo was never shown the appraisal after 8 2 It is significant to note at this point that when Gonzalez first at- tempted to have the appraisal interview with Del Castillo in 1980, he had not filled in his appraisal of the employee as required by the Respond- ent's policies. It was not until Del Castillo refused to go through with the interview that Gonzalez completed his portion and then discussed the ap- praisal with the employee 188 DECISIONS OF THE NATIONAL TABOR RELATIONS BOARD it had been changed by Hull. Hull's explanation, that the changed appraisal was given to personnel who in turn was responsible for sending it to the department manager - to discuss with Del Castillo, is not convincing. To the contrary, it discloses the lengths the Respondent was prepared to go in order to undergird its retaliatory ef- forts against Del Castillo because of his involvement with the Union. Any doubts on this point are fully dis- pelled when consideration is given to Respondent's at- tempt at the trial herein to show that Del Castillo was an unsatisfactory employee, even during the years when he was rated above average. That Respondent felt com- pelled to do so, in the face of its own documentation to the contrary, fully demonstrates that its hostility toward Del Castillo was inspired by his union activities and for no other reason. Considering all of the above, I find the Respondent's asserted justification for discharging Del Castillo is noth- ing more than a pretext offered to camouflage the unlaw- ful basis for the termination. The Respondent's demon- strated hostility toward Del Castillo because of his lead- ing role in the union campaign, the timing of his dis- charge (in the middle of the organizing effort), the wide- spread incidence of unlawful conduct by Respondent's officials and supervisors, the willingness to impeach its own documents to demonstrate that Del Castillo was an unsatisfactory employee, and the investigation of a prac- tice followed by Del Castillo about which management had prior, knowledge and chose to ignore, lead me to conclude that his role as the chief union activist in the store was the underlying basis for his discharge. Or in the terms of the Board's Wright Line analysis, the Re- spondent has not demonstrated that Del Castillo would have been terminated in any event, absent his union ac- tivities. 83 I find, therefore, that the Respondent violated Section 8(a)(3) and (1) when it discharged Del Castillo on March 29. VI. THE 8( ( 4 ) VIOLATIONS A. Yolanda Alvarado The General Counsel contends Alvarado was dis- charged in January 1981 because she testified against the Respondent during the trial of the unfair labor practices in this case. 84 It is without question that Alvarado's testi- mony was in support of the charges against Respondent. Nor is there any doubt that the credited testimony dem- onstrates the Respondent's supervisors and officials knew she was an active supporter of the Union. The critical issue here is whether the Respondent constructively dis- charged Alvarado by offenng her a more arduous posi- tion at the end of her maternity leave in order to retali- ate against her for testifying against the Respondent at the hearing. When Alvarado went on maternity leave on Decem- ber 3, her doctor estimated she would be able to return to work on January 12 and so indicated on the forms 83 Wright Line, Inc , supra 84 The General Counsel alternatively contends Alvarado's termination was a product of unlawful unilateral changes in the Respondent's staffing pattern provided to the Respondent. 83 Having previously dis- 'credited Moreno's testimony regarding unlawful state- ments made to Alvarado during the organizing cam- paign, I do not credit his denial that he assured Alvarado her position in the sewing department would be available when she returned from maternity leave and that her po- sition was being filled temporarily by part-time employ- ees. Nor do I credit his statement that the part-time em- ployees were working out well." Although Moreno denied calling Alvarado in mid-December to complain about the performance of his part-time employees, he was unable (or unwilling) to recall whether he asked Al- varado if she could shorten her leave and return early. Moreno's ambivalence regarding this phone call lends credence to AIvarado's testimony that such a call was in fact made, and that Moreno was experiencing difficulty with the employees in his department at the time. But Moreno's assurances aside, it is evident that the Respondent's policies controlled what an employee could expect on return from an extended leave. Because mater- nity leave was considered the same as disability leave, this meant an employee on such leave would be offered the same position, or a substantially equivalent one, if the position were available at the time the employee re- turned. If not, the returning employee would be placed on a preferential rehire list and offered the first suitable opening. Thus, employees did not return to their former positions, as a matter of right, after an extended disability leave. Therefore, the decision where Alvarado would work when she returned from maternity leave was deter- mined by Padgett's application of the Respondent's dis- ability leave policy and not by representations made by the department manager. It is unrefuted that the Respondent was instructed by its home office to institute the mechanized pay system (MPS) and this system allowed for greater use of part- time employees by providing a more flexible means of scheduling coverage when the needs required it. It is also unrefuted that in certain areas it could not be adapt- ed to the utilization of part-time employees; i.e., the warehouse, TV and stereos, major appliances, and furni- ture. Thus, Padgett's decision, made after conferring with Moreno, that three full-time employees were not needed in the sewing department was consistent with the MPS program implemented on directions from Respond- ent's corporate headquarters. Apart from the business justification, the factual cir- cumstances surrounding the offer made to Alvarado do not warrant the fmding that she was being offered a less desirable position as a means of retaliation for testifying against the Respondent. The record substantiates there was a full-time opening in the carpeting department and Padgett's testimony is unrefuted that the earning poten- tial was double that which Alvarado earned in the 85 I attach no significance to the fact that the first set of claim forms submitted by Alvarado to the personnel office were either lost or mis- placed. That Alvarado had to submit a second set of forms does not indi- cate, without more, that the Respondent was deliberately seeking to impede her return to work 86 This is refuted by Hull's written comments to Moreno in February instructmg him to hold a meeting because his employees were making too many errors. MONTGOMERY WARD & CO, 189 sewing machine department. 87 The claim that the duties were more arduous is not supported by the testimony in the record. While Zuniga testified that it was necessary for the salespersons in the carpeting department to bring out heavy rolls of carpeting or flooring, he also acknowl- edged that forklifts and other mechanized equipment were available for this purpose. He further indicated that the employees in the stock department were required to assist in this function. It is also clear from the testimony of Zuniga and F'adgett, that other female employees had successfully worked in the carpeting department. The fact that Alvarado would have to leave the store and travel to the homes of customers to take measurements and make sales did not make this position any less desira- ble, since she would have received mileage reimburse- ment from the Respondent for such trips. Nor does the record support the General Counsel's contention that Alvarado was treated differently than any other employees returning from maternity leave. The list introduced into evidence indicates that some of the employees returning from such leave were placed in different job positions than they held prior to taking leave and others were able to return to their former jobs. It is apparent that these decisions depended on the cir- cumstances that existed at the time the employee re- turned. Some returned at a peak season and their former positions were available; some were able to return to their former positions because their replacements quit; some were never replaced when they went on leave; and others were placed in different positions on their return. Thus, there is no conclusive showing here that Alvarado was treated differently than other employees returning from maternity leave. In sum, I find the Respondenf s explanation of the cir- cumstances which caused it to make an offer to Alvara- do of a full-time position in the carpeting and flooring department fully rebuts any adverse inferences that may be drawn from the decision not to place her in her former job. In so doing, I am not unmindful of the state- ment made by Moreno to Alvarado in the witness room at the time of the hearing that the Respondent was going to fire the employees who testified against it. The facts found here do not support the contention that this is what occurred with Alvarado. Rather, Alvarado's termi- nation was the result of her insistence on returning to her former position and refusing to accept the position in the carpeting and flooring department. Accordingly, I find the General Counsel has failed to establish by a prepon- derance of the credible evidence that the discharge of Alvarado was unlawful. B. Gilberto Morales The discharge of Morales presents less of a problem Morales' activities and support for the Union are well documented on the record and his testimony at the hear- ing was certainly contrary to the Respondent's interests. Nevertheless, I find the General Counsel has failed to 87 Alvarado complained that she received a higher percent- age of commission from each sale hi the sewing machine department, the actual dollar amount of commission from the carpet and floor covering sales would have been greater because of the larger unit cost demonstrate that Morales was discharged for reasons that violated the Act. There is a virtual litany of infractions that resulted in written warnings (policy exception notices) being issued and corrective interviews given to Morales. These writ- ten warnings and interviews predated the union activity at Respondent's store. It became readily apparent at the trial that as Morales testified about the written warnings, he did not dispute the circumstances which caused the warnings to be issued. Rather, he simply adopted the at- titude that they were written because he was an active supporter of the Union. As the Respondent points out in its,brief, involvement in protected activities will not pre- vent a union adherent from being disciplined or dis- charged when the action taken is not based on the em- ployee's union activity. Central Freight Lines, supra. The record here is well documented with evidence of numerous violations Of Respondent's policies and proce- dures committed by Morales between February 1980 and the time of his discharge. Additionally, these infractions were not disputed or denied by Morales, nor were they effectively explained away. In many instances, they in- volved the quality of service to customers and resulted in customer dissatisfaction and inconvenience, as well as monetary loss to the Respondent. It is also evident that any, one or a combination of these infractions could have resulted in Morales' discharge prior to the time he was actually terminated. Nevertheless, Morales was placed on probation for 90 days and warned that he would be dis- charged, if his performance did not improve. In spite of the precariousness of his position at this point, Morales knowingly committed further infractions of company rules and was terminated. It is more than evident that the record amply demon- strates that Morales would have been discharged by the Respondent in any event after these repeated infractions of its rules and the failure to heed the warnings given during corrective interviews. In my judgment, the union activities of Morales had no bearing on the decision to terminate him. Rather, he was discharged because of his continuedpoor performance as an employee. According- ly, I find that the discharge of Morales did not violate any section of the Act. VI. THE UNIT COMPOSITION A. Maria De La Fuente The unrefuted testimony of De La Fuente discloses that she works approximately 20 hours a week on a regu- lar basis for the Respondent. She shares in all the bene- fits enjoyed by the employees considered part of the unit, including an employee discount on all purchases made in the store. Additionally, she participates in the Respondent's retirement program provided she accumu- lates the required number of work hours in the course of a year. As in the case of all the other employees, De La Fuente punches a timeclock, is subject to the supervision of the department manager, and receives periodic per- formance appraisals. The General Counsel's contention that De La Fuente is a casual employee appears to be based on the fact that 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD she works full time for another employer. Board prece- dent, however, does not support this view. The Board holds, in department store cases, that employees who regularly work an average of 4 or more hours a week are regular part-time employees; and this is so even though they may work full time elsewhere. Leaders-Na- meoki, Inc., 237 NLRB 202 (1978) (and the cases cited therein). In light of the above, I find that De La Fuente should be included in the bargaining unit. B. Blanca Guerrero Similar to the situation with De La Fuente, Guerrero was hired by the Respondent on a part-time basis as a microwave demonstrator in the major appliance depth- ment. She held a full-time position as a home economics teacher in the local school district. Guerrero averaged between 4 and 12 hours a week giving demonstrations and conducting classes in the use of microwave ovens until she quit Respondent's employ in June 1980. Guerre- ro worked under the supervision of the department man- ager in the major appliance department, punched a fink- clock as did other hourly paid employees, received per- formance appraisals from her department manager, and enjoyed the employee discount given all of Respondent's employees. For the reasons cited in the case of De La Fuente, I find Guerrero to be a regular part-time em- ployee. Since Guerrero worked at least 4 hours a week until she terminated her employment and because her employment did not stop until well after the Union's demand in April, it is evident that Board law requires she be included in the bargaining unit. C. Ernestina Hernandez As the detail clerk, Hernandez has a wide variety of duties. She is responsible for opening and stamping all in- coming mail, operating the switchboard, typing reports for the management staff and department managers, and setting up meetings for the management staff. In addition to these responsibilities, Hernandez types and files all correspondence of the store manager, who is her imme- diate supervisor; including report forms he is required to submit to Respondent's district office. During the course of the organizing campaign, Hernandez typed all letters that Respondent issued to the employees opposing the unionization of the store. There is no indication in the record that any limitation is imposed on Hernandez' access to or typing of the store manager's correspond- ence. As the Supreme Court recently indicated in upholding the Board's definition of confidential employee, the ex- clusion for an employee in this category is a narrow one. NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170 (1981). It is limited to one who as- sists and acts in a confidential capacity to a person who formulates, determines, and effectuates management poli- cies in the field of labor relations.88 The record here discloses no limitation on Hernandez' access to the correspondence of Hull; including that which relates to labor relations. The Respondent's con- 88 B. F Goodrich Go, 115 NLRB 722, 724 (1956). tention that Hull was not involved in-establishing policy for labor relations, because this was the responsibilty of Paul Perez, is not supported by the evidence. Although it is true that Perez has overall responsibility for labor relations of the stores in the entire southern area, Hull, as the senior management official in the store, has the day- to-day responsibility of determining the application and implementation of these labor policies. Thus, I find that Hernandez acts in a confidential ca- pacity to a person involved in formulating, determining, and effectuating Respondent's labor relations policies. She is, therefore, a confidential employee as defined by the Board. Reymond Baking Co., 249 NLRB 1100 (1980); National Cement Co., 228 NLRB 1039 (1977). Accord- ingly, I find that Hernandez should be excluded from the unit. D. Delia Flores Although Flores reports directly to Personnel Manag- er Padgett, there is nothing in the record that discloses that she assists Padgett in any matters that relate to the formulation, determination, and effectuation of Respond- ent's labor relations policies. Although Flores' duties in- clude handling all new applications for employment, they are limited merely to ascertaining that all required information is filled out by the applicant. She then simply passes the application on to Padgett for her action. She also processes and handles the compensation claims of employees and is responsible for filing docu- ments in the employee's personnel files; this includes up- dating the information taken from the employee's per- formance appraisals after they have been completed and returned by the department managers and supervisors. Thus, Flores has access to the files in the course of her duties, but the files are maintained in Padgett's office and the key is kept in Padgett's desk. Ronnbeck, the payroll clerk, has equal access to these files. However, the Gen- eral Counsel does not argue that Ronnbeck is a confiden- tial employee. The Board has held that mere access to personnel files does not require an employee's exclusion from a bargaining unit as a confidential employee. Taft Broadcasting Co., 226 NLRB 540, 543 (1976). There is nothing in the record here that establishes that Flores ever assisted Padgett in a confidential capacity in any matter bearing on labor relations. In light of the foregoing, I find that Flores' duties do not place her in the category of a confidential employee. National Cement Co., 228 NLRB 1039 (1977); Taft Broadcasting Co., supra. Accordingly, I find that Flores is to be included in the bargaining unit. VII. THE MAJORITY STATUS AND THE 8(A) (5) VIOLATION The General Counsel contends that when the Union made its demand for recognition on April 10, it was the designated bargaining representative of a majority of the employees in the unit. Pursuant to stipulation, the parties agreed that 283 employees were in the unit on that date and further, that the unit consisted of 281 employees on April 30. Thus, at the time of the demand, the Union needed at least 142 cards to attain majority status. Of the MONTGOMERY WARD & CO. 191 162 cards introduced into evidence by the General Coun- sel, 11 have been found to be invalid designations for a variety of reasons. (See the section on authorization cards, supra)" Eleven other cards, which were found to be valid, were dated after the demand and cannot be counted toward the majority status on April 10.9° Therefore, on the date of the demand the Union pos- sessed 140 valid designations and this was less than a ma- jority. The Respondent contends that only those cards signed on or before April 10 can be considered in determining whether the Union attained majority status. Further, it argues that as no subsequent request for recognition was made, there was never a duty to bargain with the Union and no violation of Section 8(a)(5) can be found. In sup- port of this contention, Respondent relies heavily on the language of the decision of the United States Court of Appeals for the Third Circuit in Hedstrom Co. v. NLRB, 558 F.2d 1137 (3d Cir. 1977). In remanding that case to the Board, the court reversed the Board's fmding of an 8(a)(5) violation when the Union demanded recognition 3 days before it achieved majority status and made no fur- ther demand after a majority was attained. The court re- jected the Board's finding that the initial request was a "continuing demand." The Board accepted the court's opinion as the law of that case only and imposed a bar- gaining order nevertheless on the basis of its decision in Peaker Run Coal Co., 228 NLRB 93 (1977). I find the Respondent's reliance on Hedstrom is mis- placed. The Board simply accepted the court's decision as the law of that case and has not abandoned its "con- tinuing demand" rationale in appropriate circumstances. In the instant case, the Union had not attained majority status when the demand was made. However, it filed a representation petition with the Board's regional office on the same date and continued to solicit and receive valid designations from the employees. In the demand letter itself (G.C. Exh. 18), the Union offered to prove its majority status by a card check and suggested the date of April 28 for such a check. 'There is no reason to be- lieve that the Union abandoned its recognitional demand by filing the petition. Indeed, the offer to meet with the Respondent on April 28 to prove its majority status indi- cates the continuing character of the request for recogni- tion. Furthermore, the Respondent's unlawful conduct commenced almost immediately after the initial meetings between the employees and the union representatives in January and continued 'well beyond the date of the demand on April 10. In view of the Respondent's avowed hostility toward the unionization of its employ- 89 The cards found Invalid are Herman° Orosco (G.0 Exh. 65); Fran- cisco Rivera (G C Exh. 124), Mark Wallendorf ((3 C Exh. 129), Genaro Castillo (GC Exh 130); Domingo Villafuerte (G.0 Exh. 137); Ulla Quellar (G.0 Exh 160), Donald Frynure (G C. Exh. 166); Yong Kol Pak (G C. Exh. 184), Jesse Rodnguez (G.0 Exh. 192); Juanita Timmons (G.0 Exh 199); Graciela Adame (G.0 Exh. 201) 99 Cards in this category are- Rogeho Aleniz-516 ((IC. Exh. 46); Yo- landa Garza-4/16 (G.0 Exh, 61); Dora Elia Munoz-4/11 (G C. Exh. 63); Aida Rodriguez-4/24 (G.C. Exh. 67); Amanda Ledesma-4/28 (G.C. Exh 114); Jose Molina-4/30 (G.C. Exh 127); Mateo Zuniga- 4/28 ((3 C Exh 128); Fernando G Ennquez-4/21 (G C. Exh. 162); Maria Alicia Garza-4/30 (G.C. Exh. 169), Adan Gutierrez-5/20 (G.C. Exh 171), Michael McKissack-4/22 (G.0 Exh 178) ees, manifested by the numerous acts of unlawful con- duct, it would have been futile for the Union to have re- newed its demand after April 10. Scotts IGA Foodliner, 223 NLRB 394, 413 (1976); Victrylite Candle Co., 171 NLRB 548 (1968). In these circumstances, I fmd that the Union's demand was indeed a continuing one that remained viable at the time the Union secured additional valid authorization cards. In light of this finding, the Union attained majori- ty status on April 24 when at least five of the post-April 10 cards were in its possession. Once the majority status was achieved, a violation of Section 8(a)(5) was commit- ted by the Respondent. The law is well settled that an employer may insist on a Board-conducted election when presented with a bargaining demand so long as he does not fatally impede the election process. 91 But should the employer engage in conduct that impedes the process, he forfeits the right to a Board election and must bargain with the Union whose majority status has been established by other means—such as valid authori- zation cards. NLRB v. Gissel Packing Co., supra at 591- 592, 614; Drug Package Co., 228 NLRB 108, 111 (1977). It is at this point that the Board holds an unlawful refus- al to bargain has taken place. Trading Port, 219 NLRB 298, 301 (1975). That the facts found here warrant the imposition of a bargaining order is, in my opinion, manifestly clear. The Respondent embarked on a course of unlawful conduct almost immediately after the initial organizing meetings between the employees and the union representatives at the end of January. The unlawful conduct was not limit- ed to a few lower level supervisors but, rather, was en- gaged in by the chief management official at the store (Hull), his entire management staff, members of Re- spondent's regional office, and by department managers and lesser supervisors. There were numerous instances of unlawful conduct that included: unlawful interrogations; threats of reprisal for engaging in union activities; obvi- ous surveillance of employees' union activities; creating impressions of surveillance; unlawful probing of employ- ees' union sentiments and sympathies; making disparaging remarks to known union supporters; threats to reduce the number of hours employees would be allowed to work if represented by the Union; attempts to get employees to report on union activities of other employees; unlawful solicitation of employee grievances with promises to take steps to remedy them; threats, express and implied, to discharge employees becauses of their activities on behalf of the Union; unlawful grants of wage increases during the course of the union organizing campaign—the last of which was timed to be reflected in the employees' pay- checks on the day of the election; the promulgation and discriminatory enforcement of an invalid no-solicitation rule; and the forcible ejection of a union representative from Respondent's public cafeteria at a time when she was not engaged in conduct inconsistent with the intend- ed purpose of the cafeteria. Additionally, Respondent unlawfully suspended a known union adherent and discharged two others; one of 91 Summer & Co. v NLRB, 419 US. 301 (1974). 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whom was the principal union activist among the em- ployees. Nor did this misconduct cease after the election but, rather, it continued on through the period of the hearing in this matter. It is more than evident from the above that the Re- spondent's course of unlawful conduct throughout the union organizing effort was designed and intended to un- dermine the Union's majority strength and impede the election process. NLRB v. Gissel Packing Co., supra at 614; C. E. Wilkinson & Sons, 255 NLRB 1367 (1981). It is equally evident that the serious nature of the miscon- duct, reflected in the continuous and concerted effort to undermine the employee support for the Union, makes the possibility of erasing its effects and insuring a fair election extremely slight. As the Board has indicated; "threatening to discharge and discharging employees be- cause of their protected activity constitutes unlawful ac- tivities which have long been classified as misconduct going 'to the very heart of the Act." United Services for the Handicapped, 251 NLRB 823, 826 (1980) (citing NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). In addition, the solicitation of grievances with prom- ises to remedy have been found by the Board to have long-term coercive effects. The Board finds such solicita- tion served "to impress upon the employees the fact that they do not need a union to obtain satisfaction of their' demands . . . thereby [eliminatingl by unlawful means and tactics the very reason for a union's existence." Vira- con, Inc., 256 NLRB 245 (1981). Furthermore, the fact that Respondent's unlawful conduct extended beyond the election to the unfair labor practice hearing "reveals . . . a continuing hostility toward the Union and further re- duces the possibility of erasing the effects of Respond- ent's unfair labor practices and of insuring a fair rerun election by the use of traditional Board remedies." South- ern Moldings, 255 NLRB 839 (1981). In view of the above, I conclude that a bargaining order is warranted not only to protect employee repre- sentational sentiment, once expressed through authoriza- tion cards,92 but also to prevent the Respondent from profiting from its own wrongdoing.93 VIII. THE INDEPENDENT 8( A )( 5 ) VIOLATIONS The General Counsel contends that when the mecha- nized payroll system (MPS) program was implemented at the McAllen store, the Respondent was under a duty to notify the Union and afford it an opportunity to bar- gain about the program and its impact on the unit em- ployees. I find this allegation to be without merit. As Padgett and Gore indicated, the MPS was the result of the computerization of Respondent's payroll system on a nationwide basis by its corporate headquarters in Chica- go. The purpose of the MPS was to allow management to get a more accurate estimate of staffing needs during selling hours. Use of this program in these circumstances was clearly a legitimate entrepreneurial decision and well 92 Trading Port, Inc., supra; Drug Package Co • supra, United Services for the Handicapped, supra. 93 Dresser Industries, 248 NLRB 33, 39 (1980) within the prerogatives of management. It was not, therefore, a subject of mandatory bargaining. Nor do I find that the MPS program resulted in unilat- eral changes in terms and conditions of employment of unit employees so as to warrant a bargaining obligation. That the program provided a more accurate indicator of Respondent's staffing needs during selling hours has not been refuted by the General Counsel. It is also apparent that this system resulted in Respondent's policy decision to make treater use of part-time employees in certain de- partments because of the flexibility of scheduling them to provide coverage during times of need as opposed to the fixed schedules of full-time employees; which did not necessarily coincide with the peak selling periods. I do not find the change in the ratio between full-time em- ployees and part-time employees after the implementa- tion of MPS to constitute a unilateral change in terms and conditions of employment about which the Respond- ent was obligated to bargain. Other than the evidence relating to Alvarado, the General Counsel has not come forward with anything which would tend to establish that the Respondent was unlawfully terminating full-time employees and replacing them with part-time employees. Rather, the unrefuted testimony of Gore and Padgett demonstrates the Re- spondent relied on attrition to provide the slots for re- placement in those departments where part-time employ- ees could be utilized. Thus, when employees in the af- fected departments quit or were fired (and there is no in- dication here that the terminations were for unlawful reasons) or went on extended leave, they were replaced in some instances by part-time employees. The only evi- dence regarding an employee returning from extended leave being affected by this policy is limited to Alvarado. But the facts established here show that she was offered an equivalent full-time commission sales position in an- other department. It was her insistence on returning to her former job and her refusal to accept the offered posi- tion that resulted in her termination. I find, therefore, that the General Counsel has produced no evidence that would demonstrate that the MPS program or the policy decision to make greater use of part-time employees al- tered preexisting terms and conditions of employment. Moreover, the unit represented by the Union consisted of both full-time and regular part-time employees. The changes in the ratio between these two categories after the implementation of the MPS program did not alter the unit composition nor did it change the terms and conditions under which the unit employees worked. After the program was implemented, the Union contin- ued to represent both categories of employees; the only change being that a greater percentage of part-time em- ployees were now part of the unit. Therefore, I find the General Counsel has not estab- lished that the Respondent was ever under an obligation to bargain about the implementation of the MPS pro- gram or the decision to alter its staffing ratio by using a larger percentage of part-time employees in certain de- partments. Accordingly, I find the Respondent has not committed separate violations of Section 8(a)(5) of the Act by failing to bargain with the Union on these issues. MONTGOMERY WARD & CO. 193 The Objections to the Election The Petitioner timely filed nine objections to conduct alleged to have affected the results of the election. 94 The objections urged by the Petitioner are as follows: 1.On various dates during the period prior to the elec- tion the Employer threatened employees with reprisals in the event they voted in favor of the Petitioner. 2. On various dates during the period prior to the elec- tion the Employer interrogated employees concerning their activities on behalf of the Petitioner and/or their in- tentions with respect to the upcoming election. 3. On the date of the election, various employees were given raises to influence their choice in the election. 4.On various dates during the period prior to the elec- tion, representatives of the Employer told employees that the Employer would not bargain in good faith with the Union in the event the employees selecteda bargain- ing representative. 5. Various employees were harrassed and intimidated by the Employer because of their support for the Peti- tioner. 6. The Employer enforced its no-solicitation rule in a discriminatory manner permitting and encouraging an- tiunion employees to utilize company time and facilities to campaign against the Petitioner. 7. On the date of the election the Employer conducted a "Cast-A-Ballot Sweepstakes" in such a manner as to enable the Employer to identify those persons who had voted in the election. With the exception of Objection 7, the objections track the unfair labor practice allegations contained in the vari- ous complaints. Having found that the Respondent vio- lated the Act by threatening employees with reprisals, unlawfully interrogating employees regarding theirS union sentiments and desires, informing employees that the Re- spondent would not bargain with the Union if it became their representative, and engaging in unlawful acts of re- prisals against employees because of their support for the Union, I conclude that such conduct also interfered with the Respondent's exercise of free and untrammeled choice in the election held on June 18. Accordingly, I recommend that Objections 1, 2, 3, 4, and 5 be sustained. Objection 6 contends the Respondent's no-solicitation rule was enforced in a discriminatory manner to permit and encourage the antiunion committee to use company time and facilities to campaign against the Union. The facts found here do not support this contention. Conced- edly, the Respondent's no-solicitation rule has been found to be overly broad and invalid. But it has not been established here that the rule was enforced so as to allow the members of the antiunion committee to campaign in the store while prohibiting supporters of the Union from doing the same. For this reason, I recommend that Ob- jection 6 be overruled. The final objection relates to the "Cast-A-Ballot Sweepstakes" (CABS). While the Board has held that the conduct of a raffle does not constitute a per se basis for setting aside a Board-conducted election, where timely objections have been filed, it will consider all of 9 4 The Petitioner subsequently withdrew Objections 8 and 9 and they will not be considered here. the attending circumstances to determine whether the raffle destroyed the laboratory conditions necessary for assuring employees full freedom of choice in selecting a bargaining representative. Hollywood Plastics, 177 NLRB 678 (1969); Gibson Greeting Cards, 177 NLRB 589 (1969); Thnfl Drug Co., 217 NLRB 1094 (1975). In the instant case, the value of the prize to be award- ed was in excess of $300 and was represented to the em- ployees by the Respondent to be the equivalent of 3 years' union dues. When the employees were released to vote, they were given raffle tickets by their supervisors with instructions to place their names and department numbers on them before depositing the tickets- in the raffle box. This box was located at the opposite end of the store from where the polling place was situated. In a similar case, the Board held the amount of a large prize to be given away on the day of the election "inher- ently [induced] those eligible to vote in the election to support the employer's position." Smith International, 242 NLRB 20, 21 (1979). In that case the lead prize was an all-expense paid trip for two to Hawaii from Texas, or a family expense-paid trip to Disneyland or Disneyworld. Here, while the sum of the award was considerably less than the prize in Smith, it cannot be considered insub- stantial. Additionally, the timing of the announcement that a prize of this amount would be given away on the day of the election was as effective in inducing employee support for the Employer as the more substantial prize found objectionable in Smith. Finally, as in Smith, em- ployees here were required to identify themselves by placing their names and department numbers on the raffle tickets. This is tantamount to maintaining a list pro- scribed by Board policy. Id. at 21. Nor was this flaw cured by the assurances of Padgett that the box contain- ing the raffle tickets was incinerated after the winner was chosen. The breach of the Board's laboratory condi- tions occurred when the employees were required to identify themselves on the raffle tickets. In light of the above, I recommend that the Petition- er's Objection 7 be sustained. I further recommend that the election here be set aside and in view of my finding that a bargaining order is warranted, that the petition in Case 23-RC-4887 be dismissed. CONCLUSIONS OF LAW 1.The Respondent, Montgomery Ward & Co., Incor- porated, is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers International Union, Local Union No. 455, AFL-CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. By the following acts and conduct, the Respondent has committed violations of Section 8(a)(1) of the Act: (a) Engaging in surveillance and creating an impres- sion of engaging in surveillance of employees' union and other protected activities. (b) Interrogating employees concerning their interest in or activities on behalf of the Union. 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Attempting to induce employees to attend union meetings and report back on the union activities of other employees. (d) Threatening employees with retaliation, including loss of jobs, because they engaged in activities in support of the Union. (e) Informing employees that if they become represent- ed by the Union, their hours will be reduced and more onerous terms of employment will be imposed. (t) Referring to union supporters in disparaging terms. (g) Attempting to persuade employees to reveal the names of other employees who support the Union. (h) Jelling employees that should they select the Union as their bargaining representative, they will no longer be able to bring their complaints and grievances directly to management. (i) Telling employees that they will receive fewer pay raises if the Union becomes their bargaining representa- tive. (j) Promising employees benefits if they abandon their support for and activities on behalf of the Union. (k) Granting employees wage increases in order to un- dermine their support for the Union and to influence the outcome of the pending election. (1) Soliciting grievances from employees with promises to remedy their complaints. (m) Maintaining and discriminatorily enforcing an in- valid no-solicitation rule. (n) Forcibly ejecting a union representative from a public cafeteria at a time when her conduct was consist- ent with the use of the cafeteria and causing her subse- quent arrest. 4. Respondent has committed violations of Section 8(a)(3) of the Act in the following manner: (a) By imposing more stringent discipline on employ- ees because they engaged in activities on behalf of the Union. (b) By discharging employees because of their activi- ties in support of the Union. 5. Respondent did not violate Section 8(a)(4) of the Act by terminating Yolanda Alvarado , or Gilberto Mo- rales. 6. On April 24, 1980, the Union was designated as ex- clusive representative for purposes of collective bargain- ing by a majority of the employees in the unit set forth below: All regular full-time and regular part-time employ- ees employed at the Employer's retail facilities lo- cated at El Centro Mall and its warehouse facility at 600 North Jackson located in Pharr, Texas, ex- cluding all other employees, guards, watchmen, and supervisors as defined in the Act. The aforesaid unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 7. Commencing on April 10, 1980, and continuing to date, the Union requested, and is requesting, that the Re- spondent bargain collectively with it as the exclusive bargaining representative of the employees in the unit described above with respect to wages, hours, and other terms and conditions of employment. 8. By refusing to recognize and bargain with the Union since April 24, 1980, as the exclusive collective- bargaining representative of all the employees in the ap- propriate unit described above while contemporaneously engaging in cOnduct which undermined the Union's ma- jority status and prevented the holding of a fair election, the Respondent has violated Section 8(a)(5) and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, it shall be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged employees Mary Guerra and Javier Del Castillo, it is recommended that these two employees be offered immediate and full reinstatement to their former posi- tions, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. In addition, that these two employees be made whole for any loss of earnings they may have suffered by the use of the unlawful discrimina- tion against them. Backpay shall be computed in the manner described in F. W Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).95 Further, having found that a bargaining order is warrant- ed in the circumstances of this case, the Respondent shall be ordered to recognize and bargain with the Union, on request, as of April 24, 1980, as the exclusive representa- tive of all the employees in the unit found appropriate herein, and if an understanding is reached, embody such understanding in a signed agreement. Finally, a broad cease and desist order is warranted here since the wide- spread misconduct engaged in by the Respondent clearly "demonstrates a general disregard for [its] employees' fundamental statutory rights." See Hickmott Foods, 242 NLRB 1357 (1979). One last item remains to be treated here. The General Counsel requests that as part of the remedy, the Re- spondent be required to pay the legal fees and expenses incurred by the union representative in connection with the arrest and trial after her forcible ejection from the Buffeteria. It is also urged that Respondent be directed to petition the Municipal Court of Pharr, Texas, to remove any and all records relating to the arrest. In sup- port of this request, the General Counsel cites Baptist Memorial Hospital, 229 NLRB 45 (1977) (employee awarded legal expenses by the Board for employer- caused arrest while handbilling); and Tiidee Products, 194 NLRB 1234 (1972) (employer's defense in Board pro- ceeding found frivolous and union granted expenses in- curred). In the instant case, it cannot be said that the Respond- ent's actions toward Johnson, although found to be un- 9 5 See generally Isis Plumbing Co, 138 NLRB 716 (1962). MONTGOMERY WARD & CO. 195 lawful, were frivolous or without some debatable support in the invalid no-solicitation rule. Additionally, the cases in which the Board has awarded litigation expenses for civil or criminal court proceedings resulting from an em- ployer's unlawful conduct, such awards have been given uniformly to employees. None of the cases involve non- employee union representatives. Cf. Clark Manor Nursing Home Corp., 254 NLRB 455 (1981) (employee defending charge of trespass brought by employer); Bill Johnson's Restaurants, 249 NLRB 155 (1980) (employee defending against libel suit brought by employer); Power Systems, 239 NLRB 445 (1978) (employee defending against law- suit brought by employer to recover expenses incurred in meeting an unfair labor practice charge filed by employ- ee); Liberty Mutual Insurance Co,, 235 NLRB 1387 (1978) (employee defending injunction proceeding brought by employer to prevent employee from engaging in business where purpose was to chill employees' interest in union- ization); Baptist Memorial Hospital, supra. In light of the above, I find no compelling basis for extending recovery of legal expenses for the criminal action or to direct the Respondent to request expurgation of the court's records on behalf of nonemployee Johnson. [Recommended Order omitted from publication.]