Sherwood Diversified Services, Inc.

SHERWOOD DIVERSIFIED SERVICES 341 Federated Answering Service, a Division of Sher- wood Diversified Services, Inc. and United Telephone Answering and Communication Serv- ice Union, Local 780. Cases 2-CA-19496-1, 2- CA-19496-2, and 2-CA-19496-4 March 31, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On July 9, 1984, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed cross-exceptions and briefs in support of cross-ex- ceptions and in response to the Respondent's ex- ceptions, and the Respondent filed an answering brief to the cross-exceptions of the General Coun- sel and the Charging Party. On February 10, 1986, the Board ordered this matter remanded to the judge to make findings, conclusions, and credibility resolutions based on the existing record regarding whether Marilyn McGuire was an agent of the Respondent at the time the decertification petition was circulated.1 On March 6, 1986, Administrative Law Judge Biblowitz issued the attached supplemental deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel and the Charging Party filed answering briefs to the excep- tions of the Respondent. The Board has considered the decision, the sup- plemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions, 3 as modified, and to adopt his recommended Order as modified.4 1. The February 10, 1986 Order remanding this case to the judge directed him, inter alia, to make findings regarding the alleged agency status and 1 278 NLRB 472. 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings 3 The judge found that the Respondent was not responsible for the conduct of Supervisors Brown and Gaillard under Montgomery Ward & Co., 115 NLRB 645 (1956). We consider it unnecessary to pass on the judge's finding that Brown and Gaillard were supervisors or on the Gen- eral Counsel's alternative contention that they were acting as the Re- spondent's agents, because the finding of any additional violations based on their conduct would be merely cumulative and would not matenally affect our Order 4 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties unlawful conduct of Marilyn McGuire. In his sup- plemental decision the judge made pertinent credi- bility resolutions and concluded she was the Re- spondent's agent, but did not decide the legality of McGuire's actions. Based on the credited testimo- ny, we find that agent McGuire violated Section 8(a)(1) of the Act by soliciting signatures for the decertification petition from employees Linda McKeiver, Debby King, Eleanor Wilson, and Sandra Gunn, thereby interfering with the employ- ees' Section 7 rights. See Hearst Corp., 281 NLRB 764 (1986); D & H Mfg. Co., 239 NLRB 393, 403 (1978). See also Eastern State Optical Co., 275 NLRB 371, 372 (1985). The judge also credited employee Rose Frazier's testimony that she was told by McGuire that the Respondent wanted to get rid of the Union and could give the employees a better dea1. 5 Such a promise of benefit is a clear violation of Section 8(a)(1). Additionally, the judge found that Eleanor Wilson had a March 3, 1983 conversation with McGuire in which McGuire so- licited her support for the decertification campaign and asserted that Wilson owed it to Vice President Walasek to help him in the decertification drive be- cause Walasek had assisted Wilson when she was in financial difficulty. This reminder of earlier fi- nancial assistance mentioned at the time McGuire was seeking Wilson's assistance with the decertifi- cation campaign had a reasonable tendency to coerce Wilson as it implies a future granting or withholding of benefits based on her response and is a violation of Section 8(a)(1). 2. In his decision the judge dismissed the 8(a)(5) allegation that the Respondent refused to provide the Union's accountant with wage information on the bargaining unit employees. 6 The judge credited the uncontradicted testimony of Vice President Walasek that there was an oral arbitration decision on this issue, found that the General Counsel had not carried her burden under Olin Corp., 268 NLRB 573 (1984), deferred to the arbitration deci- sion, and dismissed the 8(a)(5) allegation. The Charging Party filed a cross-exception to this find- ing, 7 claiming that the Respondent had violated Section 8(a)(5) by refusing to provide the wage in- formation and, in effect, asserting that the arbitra- tor's award was clearly repugnant to the Act. We agree. 5 No exception was taken to the judge's finding that McGuire told Frazier that the Respondent could give the employees a better deal 6 The record indicates that the Respondent denied the accountant access to its payroll register, which contains information necessary to verify the accuracy of the overtime payments made to the employees. 7 The General Counsel addressed this issue in her response to the Re- spondent's exceptions but did not file a cross-exception on this finding 288 NLRB No. 45 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This 8(a)(5) allegation stems from a dispute over a unilateral change the Respondent had made in the employees' work 'schedules from an 8-hour day, 5-day week to a 10-hour day, 4-day week. The Union's grievance over this change went to arbitra- tion on December 16, 1982, and an award was issue& directing the Respondent, inter alia, to pay retroactive overtime to its employees who had worked more than 8 hours on any one day during the Respondent's implementation of the 10-hour day, 4-day week schedule. On April 7, 1983, the Respondent refused to provide its payroll records to the Union's accountant when it realized that the accountant was auditing the overtime payments.9 The Union's accountant tried to obtain this infor- mation 2 or 3 months after the April 7, 1983 denial, but the Respondent again refused. On May 27, 1983, the arbitrator issued an oral determination on the Union's right to the wage in- formation. The judge credited the following testi- mony of Respondent's vice president, Walasek, re- garding the arbitrator's decision: He said that the Union had no right to go beyond the scope of the inquiry, that they have no business in the financial business of the Company, absolutely none, and that if there were any inquiries that were going to be made on whether the employees are paid their retroactive [sic] on the 10-hour workday—and that's where it all arose from—that the em- ployee would have to make the claim and come to the Company first, and the Company ought to ameliorate the claim, or, if the em- ployees still had a question about it, the em- ployee knew what they had to do to get it ameliorated. The Board will defer to an arbitration award when the proceedings appear to have been fair and regular, all parties have agreed to be bound, the decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act, Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955), and the ar- bitrator considered the unfair labor practice issue that the Board is called on to decide. Raytheon Co., 140 NLRB 833, 884-885 (1963). The Board will find that the arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally 8 The arbitration decision is contained in the record at C.P. Exh. 4. There is no date on the decision indicating when it was issued, but there is a reference in the record and in the Respondent's answering brief to the General Counsel's and the Charging Party's cross-exceptions indicat- ing that the award issued sometime in December 1982. 9 The Union notified the Respondent on January 10, 1983, that its ac- countant would contact the Respondent to arrange a tune to audit the payroll records. See C.P. Exh. 5. with the facts relevant to resolving the unfair labor practice. Olin, supra at 754. The Board will find deferral inappropriate under the clearly repugnant criteria only when an arbitrator's award is "palpa- bly wrong,' i.e., the arbitrator's decision is not sus- ceptible to an interpretation consistent with the Act." Ibid. The Board requires that the party seek- ing to have the Board reject deferral s show that these standards have not been met. Ibid. In this case, there is nothing to indicate that the arbitration proceedings were not fair and regular or that the parties had not agreed to be bound by the decision. Similarly, there is no indication that the contractual and unfair labor practice issues are not factually parallel or that the arbitrator was not pre- sented generally with the facts relevant to resolv- ing the unfair labor practice. The evidence does es- tablish, however, that the arbitrator's award is clearly repugnant to the Act. In this regard, the Respondent admittedly re- fused to provide the Union with wage information relating to bargaining unit employees. It is settled law that such information is presumptively relevant and necessary to a union's collective-bargaining duties and that an employer violates Section 8(a)(5) by refusing to provide it. See Gunn & Briggs, Inc., 267 NLRB 944, 947 (1983). See also NLRB v. United Technologies Corp., 789 F.2d 121 (2d Cir. 1986), enfg. 274 NLRB 609 (1985), and 274 NLRB 1069 (1985). Here, the oral arbitration decision ef- fectively denies the Union's right to the requested wage information. Under no interpretation can the arbitrator's decision requiring individual employees to present their claims for retroactive overtime payments to the Respondent be said to resolve the refusal to provide the wage information in a manner consistent with the Act as it indicates the arbitrator did not require the Respondent to over- come the presumption. Accordingly, because the arbitration decision is "palpably wrong," we find it to be clearly repugnant to the Act and consider de- ferral to the decision inappropriate." See Olin, supra. 1 ° We note that in prearbitral Collyer-type cases the Board has found it inappropriate to defer when the issue involves a request for information. See Clinchfield Coal Co, 275 NLRB 1384, 1385 (1985); General Dynamics Corp., 268 NLRB 1432 fn 2 (1984). In postarbitral Spielberg-type cases the Board also refuses to defer when the information request is a proce- dural matter attendant to the arbitration process rather than a separate grievance subject to arbitration. See Montgomery Ward & Co., 234 NLRB 588, 589 (1978) (Board found Spielberg doctrine inapplicable because issue before the arbitrator involved compensation matter and unfulfilled re- quest to provide information was treated as procedural matter attendant to' arbitration on the compensation issue) Compare Kroger Co., 226 NLRB 512, 513 (1976) (Board applied the Spielberg test but refused to defer to the arbitration award because it did not resolve the unfair labor practice issue) In the mstant case, the information request was presented separately to the arbitrator and the arbitrator orally decided the issue. Continued SHERWOOD DIVERSIFIED SERVICES 343 The Respondent attempts to justify its refusal to provide the requested information by asserting that the collective-bargaining agreement limits the Union's right to payroll information to health and welfare and pension records. In effect, the Re- spondent is arguing that the Union waived its right to the requested information. In making this claim the Respondent does not point to any specific pro- vision of the contract, but is apparently referring to article XXXII' (f), titled Health & Insurance fund, which states: The Payroll Record of each Employee shall be open for inspection by any representative of the Health & Insurance Fund from time to time during business hours, upon reasonable advance notice. While it is clear that a union may contractually waive its statutory right to information, such a waiver must be expessed in clear and unmistakable language. Clinchfield Coal Co., supra, 275 NLRB at 1384. See also Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 706-707 (1983). Further, the exist- ence of a grievance procedure in a collective-bar- gaining agreement does not constitute a clear and unmistakable waiver of the Union's right to infor- mation. Clinchfield Coal, supra at 1384. Article XXXIII of the collective-bargaining agreement deals solely with the health and welfare fund and in no way limits the Union's right to in- formation on the employees' overtime pay. Indeed, we find nothing in the parties' collective-bargaining agreement that clearly and unmistakably waives the Union's right to the requested information." The Respondent also claims that the Union has no right to the requested information because no employee had complained about the retroactive payments and, therefore, the Union had no basis for believing that the Respondent was making mac- Regarding our adoption of the judge's determination to defer to the ar- bitral award on the issue of the Respondent's allegedly unlawful refusal to grant the union president access to its premises on two occasions, Chairman Stephens notes that this refusal was alleged only as a violation of Sec. 8(a)(5) of the Act, i.e., it allegedly represented a violation of the access guarantee in the collective-bargaining agreement There was no al- legation that the Respondent acted discriminatorily, in violation of Sec. 8(a)(3), through its refusal. The issue before the Board and the issue squarely decided by the arbitrator—the scope of the contractual access clause—were therefore factually parallel. In Chairman Stephens' view, deferral with respect to this issue is appropriate under either the majority opinion or the dissent m Olin Corp., supra. 11 The Respondent also argues that the owner of the accounting firm performing the audit was a relative of the Union's president and that the audit of the overtime payments was undertaken as a favor to the union president. Assuming, arguendo, that this claim were true, it in no way restricts the Union's statutory right to the requested information. More- over, the accountant who performed the audit was not the alleged rela- tive of Union President Fisher. This accountant dealt directly with Fisher regarding the audit and testified that he did not have the "slightest Idea" whether such a relationship existed. Further, he stated that Fisher merely requested that he audit the union dues and overtime payments without any mention of performing the audit of the overtime payments as a favor. curate retroactive overtime payments at the time the accountant sought to examine the payroll records. Implicit in this argument is the assumption that wage information is relevant only when it is sought in conjunction with a specific problem. The Union, however, has a duty to administer and police the contract. Wage information on bargain- ing unit employees is obviously relevant and neces- sary to enable a union to fulfill this duty, and thus such information must be provided even when it is not linked to a specific problem. See NLRB v. F. W. Woolworth Co., 352 U.S. 938 (1956), revg. 235 F.2d 319 (9th Cir. 1956) (the Supreme Court reversed without comment the Ninth Circuit's de- cision, which found that the union had not demon- strated the relevancy of wage information request- ed solely to allow the union to intelligently and eq- uitably administer the contract). See also I. L Case Co. v. NLRB, 253 F.2d 149 (7th Cir. 1958), enfg. as amended 118 NLRB 520 (1957) (wage rate data is relevant to the union's statutory obligation to police and administer the contract and must be pro- vided even though the data was requested when neither grievance nor wage negotiations were pending). Moreover, the record in this case shows that the requested information is relevant and necessary to resolve a specific problem. The December 1982 ar- bitration award found that the Respondent had vio- lated the collective-bargaining agreement by unilat- erally changing the employees' schedules and di- rected the Respondent to make retroactive over- time payments. Additionally, the Union was aware of problems with the Respondent's retroactive overtime payments before the accountant went to the Respondent's facility on April 7, 1983, to per- form the audit. The Union's accountant testified that Union President Fisher told him prior to the audit that there was a controversy between the parties about overtime payments and specifically requested that the accountant check the records to determine if the employees were being properly compensated for their overtime work." Under 12 Even assuming the Union had not been made aware of a problem with the retroactive overtime payments before April 7, 1983, it is clear that the Union had been made aware of a problem with the payments by the time the accountant made his second attempt to check the payroll records "two or three months" after the April 7, 1983 request. Vice President Walasek admitted that the Uthan's questions about the accura- cy of the overtime payments were discussed on May 27, 1983. Walasek's testimony establishes that during the May 27, 1983 discussion the Re- spondent admitted that it had paid the employees overtime only for hours worked beyond 40 per week, and not for hours worked in excess of 8 per day, as the December 1982 arbitration award directed. Thus, the Union had been made aware of a problem with the overtime payments and the Respondent knew that the Union had been made aware prior to the ac- countant's second attempt to gain access to the wage information. The admission regarding the basis for the Respondent's retroactive overtime Continued 344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD these circumstances, the Respondent had no lawful basis for refusing the Union's request for the wage information. Accordingly, because wage information relating to bargaining unit employees is presumptively rele- vant and because the Respondent has not justified its refusal to provide the requested information, the Respondent's refusal violates Section 8(a)(5) and (1) of the Act. AMENDED CONCLUSIONS OF LAW 1. Insert the following as paragraph 4(i). "(i) Interfering with its employees by soliciting them to sign the petition to decertify the Union." 2. Substitute the following for paragraph 5. "5. The Respondent violated Section 8(a)(5) and (1) of the Act by: "(a) Refusing to furnish the payroll books and records requested by the Union in order that the Union could determine the Respondent's compli- ance with the pay provisions of the collective-bar- gaining agreement and the December 1982 arbitra- tion decision." "(b) Refusing on and after April 19, 1983, to bar- gain with the Union as the exclusive bargaining representative of employees in the appropriate unit." ORDER The National Labor Relations Board orders that the Respondent, Federated Answering Service, a Division of Sherwood Diversified Services, Inc., New York, New York, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with United Telephone Answering and Communication Service Union, Local 780 as the exclusive repre- sentative of the employees in the bargaining unit. (b) Refusing to bargain with the Union by refus- ing to furnish the payroll books and records re- quested by the Union. (c) Interrogating its employees regarding their attendance at, or knowledge of, meetings to discuss the decertification of the Union. (d) Prohibiting its employees from discussing the Union on its premises at any time. (e) Restraining and coercing its employees by telling them that they were not friends of Respond- ent because they did not support the decertification petition. (1) Interrogating its employees regarding their support for the Union. payments is important given the Respondent's unilateral change in the employees' schedule from an 8-hour day, 5-day week to a 10-hour day, 4- day week. (g) Promising benefits to its employees to solicit them to withdraw their support for the Union, and to induce them to sign and support the petition to decertify the Union. (h) Threatening to discharge its employees due to their support for the Union. (i) Restraining or coercing its employees by en- couraging them to sign the petition to decertify the Union. (j) Interfering with its employees by soliciting them to sign the petition to decertify the Union. (k) Threatening its employees with permanent replacement because they engaged in an unfair labor practice strike. (1) In any like or related manner interfering with, restraining, or coercing its employees in the exer- cise 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) On request, recognize and bargain with the Union as the exclusive representative of the em- ployees in the following appropriate unit on terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All telephone operators employed at Respond- ent's 210 East 86th Street, New York, New York facility but excluding all office workers, guards and supervisors, as defined in the Act. (b) Furnish the payroll books and records re- quested by the Union. (c) Notify all its striking employees, by letter or telegram, that it is withdrawing the threat of per- manent replacement contained in its August 17, 1983 telegram to them, and that on an uncondition- al offer to return to work, they will be offered im- mediate and full reinstatement to their former posi- tions or, if these jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. (d) Post at its New York, New York premises copies of the attached notice marked "Appen- dix." 13 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places 13 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 Enforcmg an Order of the National Labor Relations Board" SHERWOOD DIVERSIFIED SERVICES 345 where notices to employees 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 the notice. WE WILL NOT interrogate our employees regard- ing their attendance at, or knowledge of, meetings to discuss the decertification of United Telephone Answering and Communication Service Union, Local 780. WE WILL NOT prohibit our employees from dis- cussing the Union at any time on our premises. WE WILL NOT restrain or coerce our employees by telling them that they are not our friends be- cause they do not support the decertification peti- tion. WE WILL NOT interrogate our employees regard- ing their support for the Union. WE WILL NOT promise benefits to our employees to solicit them to withdraw their support for the Union and to induce them to sign and support the petition to decertify the Union. WE WILL NOT threaten to discharge our employ- ees because of their support for the Union. WE WILL NOT restrain or coerce our employees by encouraging them to sign the petition to decerti- fy the Union. WE WILL NOT interfere with our employees by soliciting their signatures for the petition to decerti- fy the Union. WE WILL NOT threaten to permanently replace our employees because they engaged in a strike in protest of our unfair labor practices. WE WILL NOT refuse to recognize and bargain with the Union as the exclusive bargaining repre- sentative of the bargaining unit described below. WE WILL NOT refuse to bargain with the Union by refusing to furnish the payroll books and records requested by the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL recognize and, on request, bargain with the Union as the exclusive representative of all the employees in the following bargaining unit on terms and conditions of employment and, if an understanding is reached, embody such understand- ing in a signed contract: All telephone operators employed at our 210 East 86th Street, New York, New York facili- ty but excluding all office workers, guards and supervisors as defined in the Act. WE WILL furnish the payroll books and records requested by the Union. WE WILL, on application, offer to all those em- ployees who participated in the strike, which began on August 17, 1983, immediate and full reinstate- ment to their former positions of employment or, if those positions no longer exist, to substantially equivalent positions without prejudice to their se- niority or other rights and privileges previously en- joyed. FEDERATED ANSWERING SERVICE, A DIVISION OF SHERWOOD DIVERSI- FIED SERVICES, INC. Mary Ann Mills, Esq. and Margaret M. Dietz, Esq., for the General Counsel. Fred Klein, Esq. (Sehan, Klein & Zelman), for the Re- spondent. Jon Quint, Esq. (Markewich, Friedman & Markewich), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was tried before me in New York on August 22, 23, and 24, September 26 and 27, and December 12, 13, and 14, 1981. 1 A complaint and notice of hearing (which was amended on a number of occasions) issued on May 18, 1983, based on unfair labor practice charges and a first amended charge filed on March 10 and 11 and April 29, respectively. The complaint alleges that since about 1957 United Telephone Answering & Communication Service Union, Local 780 (the Union), has been the collective- bargaining representative of the telephone operators em- ployed by Federated Answering Service, a Division of Sherwood Diversified Services, Inc. (Respondent); that since February Respondent, through promises of in- creased benefits, threats, and through other means solicit- ed its employees to sign and support a petition to decerti- fy the Union, interrogated its employees regarding their support and the support of their fellow employees for the Union, and announced a rule prohibiting its employ- ees from discussing the Union on Respondent's premises during nonworking time. The complaint also alleges that i All dates refer to 1983 unless otherwise Indicated 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent refused to allow the Union's president, Jerry Fisher, to enter its facility, refused to meet and bargain with the Union, and refused to furnish the Union with certain information relevant to it as the collective-bar- gaining representative of certain of its employees. Final- ly, an amendment to the complaint alleges that certain of Respondent's employees ceased work concertedly and engaged in a strike commencing on August 17, that this strike was caused by Respondent's unfair labor practices (recited above), and that Respondent (on about August 17) threatened 19 named employees with discharge unless they abandoned the strike. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation with an office and principal place of business at 210 East 86th Street in the city and State of New York (premises or facility), is engaged in the business of providing telephone answer- ing services to various commercial and private custom- ers. Annually, Respondent, in the course and conduct of its business operations, derives gross revenues in excess of $500,000 and purchases and receives at its facility goods and materials valued in excess of $50,000 from points outside the State of New York. Respondent admits, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. FACTS Respondent, as a member of Association of Telephone Answering Services, Inc. (the Association) has been a party to collective-bargaining agreements with the Union for in excess of 20 years; the last such agreement was ef- fective for the period of June 1, 1981, through May 31, 1983. The unit is all telephone operators employed by Respondent at its facility located at 210 East 86th Street, New York, New York, but excluding all office workers, guards, and supervisors as defined in the Act. By letter dated March 18 (with a copy to the Union), Respondent notified the Association that it was withdrawing from the Association for collective-bargaining purposes. By letter dated March 23, the Association notified the Union of Respondent's withdrawal. Counsel for the Union (by letter dated March 22) and the Union itself, by its presi- dent, I. Jerry Fisher, then wrote Respondent demanding to meet for the purpose of negotiating an individual agreement with it. By letter dated April 19, Respondent, by Paul Walasek, its Vice president, informed the Union and its counsel that, based on the pending decertification agreement supported by a showing of interest by almost 60 percent of the unit employees, Respondent had a good-faith doubt of the Union's majority status based on objective considerations, and therefore it was privileged to withdraw from further bargaining with the Union. The propriety of this action is the principal focus of this case. A. Respondent's Operation As stated, supra, Respondent Operates a telephone an- swering service; prior to 1981, it was operated from five separate locations in New York City. During 1981, these separate offices were consolidated, and the single office located on East 86th Street in New York City (the prem- ises), became fully operable in late 1981. These premises are basically two separate areas, divided by a wall, but with an entrance connecting the two: a board room where the operators work, and an office where the offi- cers and office employees work. Each has a separate en- trance from the building hallway. The operation at the board room is highly automated and operates on a 24- hour-a-day basis. During the period in question (early 1983) there were approximately 56 employees working the 3 shifts. Respondent's operation consists of six "cells" each containing four positions; with the assistance of computers and monitors, the operators answer calls and give messages to Respondent's subscribers. Each cell has a cell leader who principally works as an operator, but who also assists the other operators on the cell when they need assistance; these cell leaders have no indicia of supervisory status. The General Counsel alleges that cer- tain individuals employed by Respondent are supervisors and/or agents of Respondent; Respondent alleges that Janice Watts, its manager, Paul Walasek, its vice presi- dent, and Michael Tanneholtz, its controller, were its only supervisors or agents at the time in question. The General Counsel alleges that Marilyn McGuire, service operator, as well as Barbara Gaillard, Eleanor Brown, and Grace Slattery (all of whom the General Counsel al- leges have the title supervisor) were supervisors and/or agents of Respondent. Respondent alleges that Brown and Gaillard, while once supervisors of Respondent with that job classification, have been lead operators and non- supervisory employees since a period prior to 1983. Re- spondent additionally alleges that McGuire was never a supervisor or agent of Respondent and that Slattery, al- though once a supervisor or agent of Respondent, was not such during the period in question here. 1. Brown and Gaillard Walasek testified that prior to the consolidation of the offices in 1981, Brown and Gaillard were each supervi- sors of autonomous offices of Respondent; their job clas- sification was supervisor and they were responsible for scheduling, staffing, and light discipline of employees (subject to approval of Walasek) in their office. After the consolidation, Brown and Gaillard became the only su- pervisors; the other former supervisors became lead op- erators; Watts began training employees. In about May or June 1982, Walasek had a dinner meeting with Brown, Gaillard, and others, where he told them that there was no need for five or six supervisors at the office and Respondent would, from then on, have a single su- SHERWOOD DIVERSIFIED SERVICES 347 pervisor, 'Watts, while Brown, Gaillard, and the other office supervisors would become lead operators 2 and "that they would be the arms more or less of Janice Watts who would be the manager in charge in terms of scheduling; vacations, days off. . . they became more or less funnels for Janice Watts." On November 23, 1982, NValasek sent a memo to "All Personnel" stating as fol- lows: Please be advised that the following is a list of em- ployees you are to contact for any questions regard- ing: scheduling, vacations, and or, any requests for time off. This list also indicates the function of each of the following employees: Janice Watts—Over all operations of the board room, and Front Office. Eleanor Brown—Lead Operator, to assign positions to all operators, to accept all vacation requests, time off requests, and to pass on to Janice Watts for final determination, handling first stage cus- tomer complaints, reporting out of orders to the New York Telephone Co. Calling to the attention of operators, errors in message taking or improper handling of calls. Barbara Gaillard—Lead Operator, Same functions as Eleanor Brown. Mignonne Inniss—Lead Operator in the Evenings, Same Functions as Eleanor Brown and Barbara Gaillard. Walasek testified that the delay between the May or June 1982 meeting and the November 23, 1982 memo in- forming the personnel of the decisions arrived at during the meeting was caused by the confusion and difficulty at the office resulting from the consolidation and equip- ment problems. Walasek testified further that after November 1982, employee requests for days off, vacation time, schedule change, leaving work early, or absence from work were to be made to Watts; in her absence, a message with such request would be made to her through Brown or Gail- lard and then given to Watts; to his knowledge neither Brown nor Gaillard ever made these decisions after No- vember 1982. It should initially be noted that there is no evidence that either Brown or Gaillard could hire or fire employ- ees, or effectively recommend such action. They are members of the Union, as they were when they were su- pervisors prior to the consolidation, were paid pursuant to the contract with Respondent, and punch a timeclock. Brown was paid $6.97 hourly; Gaillard, $5.85, 3 and they receive overtime pay pursuant to the contract. Brown and Gaillard each work a 5-day workweek (the days vary) and they work during the day shift, with some car- ryover time. Brown began her employ with Respondent 2 Later, Walasek testified that the change in May or June 1982 was that Watts went into the front office and "Brown and Gaillard would be in the board room, working as supervisors." There was a later change in November 1982, where Watts became overall manager (in place of Slat- tery) and Brown and Gaillard became lead operators. 3 In 1982, the minimum wage provided by the contract was $4.35 an hour; the contract also Provided a 50-cent hourly wage increase in 1982. in 1960; prior to the consolidation she was the supervisor at Respondent's office at 72d Street in New York City. She testified that at the present time she is a lead opera- tor4 for Respondent; she works on a cell, as do the oper- ators, and answers customer complaints. She assigns seats to operators; certain cells are more difficult than others and she assigns the operators "to where I think an opera- tor can perform." She does not do scheduling, assigns overtime only with Watts' permission, and if she receives a request from an employee to leave work early, she checks first with Watts; likewise, if an employee calls that she will be late for, or absent from, work Brown in- forms Watts of it. Employees' vacation requests go di- rectly to Watts. When Brown, herself, requests a vaca- tion day, or time off, she makes the request to Watts. When a new employee is hired, Brown will, at times, assign that employee to work with an experienced em- ployee; she does that at the direction of Watts. Employ- ees take their lunchbreak depending on when they arrive at wOrk: "And then it goes on down the line." If neces- sary, Brown relieves an operator who is leaving for lunch. On the average Brown spends 5 or 6 hours daily working on a cell (like the other operators); the remain- ing 2 or 3 hours daily she spends on the dias, which is an elevated area in the board room, overlooking the cells, and which contains computers reflecting what is occur- ring on the cells. Brown has observed numerous of the operators working on the dias, but for an hour at the most. While she is sitting at the dias she observes the op- erators to be sure that they are observing the computer screens and answering the phones properly. However, on those occasions that she observed an operator speak- ing to another operator rather than tending to her job, she informed Watts of this, rather than the operator. Watts disciplines the operators based on her observation of their work performance; on occasion, Brown, as well as other operators, has informed Watts that an operator should be counseled on her performance. Gaillard, who has been employed by Respondent since 1978, testified that she is a lead operator, which is "the same job as an operator, we answer lines, take messages, if there's a customer complaint that we can help them with, we take the call." She spends about 6 hours a day on the cells answering calls, like the operators; the re- maining 2 hours are spent on the dias. A number of the other operators (in addition to the lead operators) spend time on the dies. If an operator requested a day off, va- cation time, or permission to leave work early, the oper- ator would put such request in writing and it would be given to Watts, who would make a decision on the re- quest. Gaillard follows the same procedure for such re- quests on her part. Watts also prepares the scheduling of, and payroll for, the employees, and approves overtime for employees. When a new employee is hired, Watts as- signs her to work with and observe another employee who Watts feels is capable of training her. Watts' ap- proval is necessary for the assignment of overtime work. Gaillard assigns operators to certain seats and cells de- 4 Respondent's attendance record for Brown, for 1983, lists her posi- tion On Watts' handwriting) as "supervisor." 348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pending on which accounts the operator is most familiar with; the operators take their lunchbreak dependent on who arrives at work first; the operator on the cell who arrived first would inform the lunch relief operator of this and she would leave. She testified, however, "If there's a problem—if I'm working and there's a problem that occurs with an operator, I can't call her, I handle it." On occasion, she has told operators to answer their phones rather than speaking to other operators when she has observed them leaving calls unattended; she has ob- served other operators doing the same thing. Gaillard testified that her job (and that of Brown) is no different than that of a cell leader, although cell leaders do not act as conduits of requests to Watts, as she and Brown do. On those occasions when Watts was not in the office, and she had not designated somebody to take her place, she has called Watts at home or Walasek in Florida, where he spends most of his time. On occasion, Gaillard has received calls from employees about 5:30 or 6 a.m. saying that they would not be in for their shift that morning. On those occasions she immediately called Watts and informed her of the situation. On occasion, Gaillard has informed Watts that an operator was doing well or that her work was improving. She has also told Watts that an operator "needs a little more work . . . and we would work with her." Cherly Tollerson, who was employed by Respondent in October 1982, and continued to work for Respondent during the Union's strike (although she testified in an im- partial manner) testified that Brown and Gaillard assign seats to operators on the basis of their ability; they spend about 4 hours of each workday on the dias, and the re- maining 4 hours working at the cells with the other op- erators. They cannot assign overtime without Watts' ap- proval, nor do they schedule vacations, days off, or the operators' working hour—Watts did that. Lunchbrealcs are determined by the order that the employees arrived for work. When she began her employ with Respondent she was introduced to Brown and Gaillard as the lead operators ("they were more or less the supervisor if I had any problems I would speak to them"); they told her that if she was going to be late for work, or absent from work, she was to inform them of the situation at least 2 hours prior to starting time, which is what she did. She testified further that at the time in question, "I thought Barbara and Ms. Brown were management." Later Brown and Gaillard told her that they were lead opera- tors rather than management. Elizabeth Kelly, who was employed by Respondent in February, joined the Union's strike against Respondent and testified, pursuant to subpoena, on behalf of Re- spondent that Brown and Gaillard's "job duties" are "they're supervisors." When she requested a day off she wrote a note to Brown or Gaillard; she does not know what they did with the note. The lunch schedule was de- termined by the order that the operators reported for work; whichever supervisor was present told the em- ployees to go. On Kelly's first day of employment with Respondent, Watts introduced her to Brown as "one of the supervisors" and asked Brown to sit her with one of the operators so that she could become accustomed to Respondent's operation. Brown chose the operator Kelly sat with. During the hours that Kelly worked (2 to 8 p.m., twice a week) Brown and Gaillard sat at the dias watching the operators on the cells. The remaining witnesses who testified regarding the supervisory and/or agency status of Brown and Gaillard were employees who participated in the Union's strike of Respondent, and were called to testify by the General Counsel. Eleanor Wilson, an employee of Respondent since 1969, and a cell leader, testified that Brown, Gail- lard and Watts asked the employees if they would be available to work overtime hours; to her knowledge, Brown and Gaillard did not first consult with Watts prior to these requests. Brown and Gaillard also released the operators to take their lunchbreaks, but this is done in the order that the employees arrived for work in the morning. Employees will generally ask: "Whom do you want to go next?" or "Is it alright if I go?" and these requests are always granted. There were occasions when a large number of operators were absent from work and Brown and Gaillard worked entire days on a cell rather than at the dias. Wilson, like the other cell leaders, was a trainer who, on occasion, was asked to observe and assist new employees; they sat with her and watched what she did and she explained the system to them. She has in- formed Watts that these new employees were not catch- ing on to the job, and did not observe them at the prem- ises afterward. Josephine Dobbs, the Union's shop steward at Re- spondent's premises, who works the midnight to 8 a.m. shift with one other employee, testified that between midnight and 6:30 or 7 a.m., she receives calls from em- ployees stating that they will not be at work that day. About 6 or 6:30 a.m. she calls Brown or Gaillard (whichever is to arrive first that morning) and informs her of the day's absentees. In these calls Brown and Gaillard have asked Dobbs if she can stay over for a few hours to cover, and they have asked her to call other employees to cover for the absent employees. On most of the occasions, Brown and Gaillard themselves called the replacement employees. Linda McKiever, who has been employed as an opera- tor by Respondent since October 1982, testified that it was Brown br Gaillard who asked her whether she could work overtime, and it was usual to cover for an operator who did not report for work, or was going to report late. Brown and Gaillard tell the operators when to take their lunchbreaks; this is generally determined by the order that the employees reported for work. Brown and Gaillard frequently work on the cells when they are short handed. Yvette Wilson, who was employed by Re- spondent in mid-1982, testified that Brown and Gaillard spend most of their time on the dias observing the opera- tors and the screens set up on the dias. If the operators receive a call from a customer complaining about the service, the call would be transferred to Brown or Gail- lard. They worked the cells only when an excessive number of operators are out—approximately once or twice a week. When she was shown Respondent's memo dated November 23, 1982, supra, describing, inter alia, Brown and Gaillard's duties, Yvette Wilson testified that the memo contained an accurate description of their job. SHERWOOD DIVERSIFIED SERVICES 349 Rose Frazier, who has been employed by Respondent as an operator since 1960, testified that Brown and Gail- lard gave the operators permission to leave for lunch, but the timing of lunchbreaks was determined by the order that they arrived for work. Grace Daniels, who has been employed by Respondent as an operator since 1966, testified that Brown and Gaillard's duties are to answer complaints from customers, tell the operators where to sit and when to go to lunch, and approve oper- ator's vacation requests and requests to leave work early. On one occasion, Daniels gave Brown a written request for certain vacation time. Without consulting anybody, Brown told her that she could not take her vacation at that time because an employee with greater seniority had previously taken that time, and she altered Daniels' re- quest to give her a vacation the prior week. 2. Slattery Slattery did not testify. As of March she punched a , timeclock and was a member of the Union. Slattery had previously been employed at a different company with Walasek; in October 1981, he hired her principally as a rewire person to assist Respondent in its consolidation. In June 1982, there was a change and Slattery was trans- ferred to the front office where she was placed in overall charge of the operation; Watts was working with her in the office, and assisting on scheduling. In November 1982, Slattery told Walasek that medical problems pre- vented her from properly administering this job; as a result of this, Respondent issued the November 23, 1982 memo, supra, and the following memo of the same day from Walasek to all employees: "Effective today, the fol- lowing are office responsibilities: GRACE SLA FIERY: Collections and Customer Service . . . ." It was at this time that she joined the Union. Walasek testified that this description continued to apply in March and, on occa- sion when needed, Slattery would assist in the board room as well. After November 23, 1982, she did not have the authority to hire or fire employees. Although she punched a timeclock 5 and joined the Union after No- vember 23, 1982, she continued to receive her previous annual salary of $18,000 to $19,000 a year and, apparent- ly was paid for absences. Watts was paid $21,000 a year. Dobbs testified that when Slattery was first hired she assisted Watts in her tasks; about 3 or 4 months later (which she estimates to be July or September 1982) she was upgraded and replaced Watts and was next in line to Walasek, and directed the work of employees. Whether Slattery's job changed again, Dobbs testified: "I didn't pay that much attention, but it seemed to me that she and Janice were doing the same things."6 Yvette Wilson testified that on October 25, 1982, she applied to work for Respondent; she was interviewed by Slattery, who told her that she was hired without calling anybody or leaving the room; Slattery told her that she would commence work for Respondent the next day, which she did; to her knowledge, Slattery's job never 5 There are timecards for Slattery in March. 6 As Dobbs worked the midnight to 8 a.m. shift (plus occasional over- time), she did not have much opportunity to observe Slattery, who ar- rived for work about 8 or 8:30 a.m. changed after that. Frazier testified that Slattery was em- ployed by Respondent for about 18 months until she left its employ about March; about 3 months after she com- menced this employment she was promoted to a position over Watts and she hired and fired employees, prepared the payroll, sold accounts, received complaints from cus- tomers, signed the paychecks, and assigned operators to cell positions. About 6 months later, this changed and Watts moved above Slattery on Respondent's hierarchy. At this time, Slattery began to punch the timeclock, but she does not believe that Slattery's job changed. She fired an employee (whose name she does not remember) in the early part of the winter. The last occasion that Slattery hired an employee was about January. Myrtle Applewhite, who has been employed by Re- spondent for 12 years, testified that Slattery worked for ". Respondent from about November 1982 through the end of April. Prior to March, she hired employees and pre- pared the schedules of work. Sometime after March 7, Slattery was demoted and Watts became operations man- ager. At that time, Slattery began punching the time- clock. Grace Daniels testified that she was suspended from employment by Respondent December 3, 1981, and returned to its employ February 18, 1982; during this period that she was absent Slattery commenced her em- ployment with Respondent. At this time, Slattery did the payroll, signed payroll checks, and received customer complaints. "She was always in the office." She testified that as far as she could recall, Slattery's job remained the same through March 1983. Brown testified that until November 1982, Slattery was operations manager. At that time, her job changed and she was placed in charge of collections; in addition she spent about 4 or 5 hours a day working in the board room and she began punching a timeclock. After this change, she had no authority to hire or fire operators or to direct their work. Sandra Minor, who began her employ with Respondent in September 1982, when she was hired by Slattery, testified that prior to December 1982, or January, Slattery was "in charge of the office"; at that time her job changed and she began to punch the timeclock and she was put in charge of collections and answered billings questions. Shirley Fergeson, who com- menced her employment with Respondent in March 1979, testified that she observed Slattery working 3 or 4 hours daily in the board room after she was removed from her position in the office—which she places around October or November 1982. To her knowledge, at no time did Slattery have the authority to hire or fire em- ployees or tell them where to sit or when to go to lunch. Tollerson testified that in October 1982, she answered a newspaper advertisement placed by Respondent for op- erators. She called Respondent and spoke to Slattery, who interviewed her, hired her, and told her to report for work the following Monday, and when she reported for work, Slattery assigned her to work with a particular operator. 3. Marilyn McGuire The General Counsel does not allege that McGuire is a supervisor within the meaning of the Act; and, in fact, 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD there is no evidence that McGuire possessed any supervi- sory authority expressed in Section 2(11) of the Act. Rather she alleges that McGuire is "an agent of Re- spondent concerning the solicitation of the Decertifica- tion Petition." McGuire had previously been employed by Respondent until about 1975 and 1976; during this period she did bookkeeping, payroll, billing, and custom- er complaints and was paid $18,000 a year. She left Re- spondent's employ at that time because she had gotten married and had a child. She commenced her reemploy- ment with Respondent on January 5 as a service observ- er; this job involves calling the telephone number of Re- spondent's customers (from Respondent's office or from her home) to check on the courtesy and speed of Re- spondent's operators. In addition she spent about 30 per- cent of her time as an operator, according to her testimo- ny. She began working an average of 16 hours a week earning $4.05 an hour; she received a 30-cent hourly in- crease 30 days later. She became a union member ("I had to join") and she punched a timeclock when she was at the office; when she worked at home, Watts punched her timecard for her. She testified that she applied to return to Respondent's employ because she was having financial difficulties and she was able to arrange with Respondent to perform her service observer work from her home as well as the office ("I could not get that anywhere else"). And, in fact, she spent about half her time at home and the remaining half in the office7 during the first quarter of 1983. She testified that when she first called Respondent, about the end of December 1982, she spoke to Watts. About a week later she spoke to Walasek and told him of her difficult fmancial situation as a single parent with- out babysitting arrangements. He told her that due to in- creasing complaints from Respondent's customers, they were reinstituting service observing, and that if she were interested she could perform that job, both at home and in the office. He also told her that because service ob- serving "was not a full time job" she would have to be an operator as well. She testified that her average weekly hours of work were originally 16, but increased later on. Respondent's timecards 8 establish that McGuire worked 8 hours the week ending March 6, 44 hours the week ending March 13 (including being paid through 7 p.m. on March 7), 40 hours the week ending March 20, 47 hours the week ending March 27, 52 hours the week ending April 3, and 40 hours the week ending April 10. Walasek testified that he redeived a call from McGuire about early January; she informed him of her personal situation and her need to return to work. She said that Respondent was in the industry she knew best and if Re- spondent had a job that was "tailored to her particular needs" she would take it. She was hired as a combination 7 She testified that she usually drives to the office from her home in Brooklyn; it is about a 1-hour -drive. 8 Walasek testified that Respondent's normal practice is to destroy the prior year's timecards when the accountant's audit for the year is com- plete Respondent's fiscal year ends February 28 and, m about May, he received a letter from Respondent's auditors saymg that their audit was complete. At that pomt, Respondent discarded its pre-March timecards, so it is unclear how many hours McGuire worked weekly prior to March. service observer and operator and that is the job that she maintained throughout the period in question. McGuire testified that when she was employed by the New York Telephone Company in the late 1960s she re- signed from the Union "because I don't believe in them." When she returned to Respondent's employ she had to join the Union, "Which I didn't particularly care for." Walasek testified that "it's no secret" that McGuire and Fisher disliked each other; he believed that they were not on speaking terms. She had regular disagreements with Fisher while she was employed at a previous em- ployer and while previously employed by Respondent, although this disagreement between them had nothing to do with his decision to hire her. Eleanor Wilson testified that during March and April she saw McGuire at the office "very little—maybe twice a week." On those days she worked on a cell for the morning hours and about 1 hour in the afternoon; she spent the remaining time in the office. In May, she never saw McGuire. On one occasion while she was working she received a call from McGuire checking on her per- formance; that was when she learned that McGuire was a service observer. Rose Frazier testified that during early 1983 she observed McGuire at the office two or three times a week; during this period McGuire spent most of her time in the office, and when she came out to the board room she spent most of her time familiarizing herself with the equipment rather than operating on a cell. She did not observe McGuire directing the work of the employees. B. The Decertification Movement McGuire, who was the principal mover in the decerti- fication movement or, at the least, one of the leaders, tes- tified that when she returned to Respondent's employ in January "there was a lot of talk" among the operators regarding their dissatisfaction with the Union; the em- ployees who expressed this dissatisfaction to her were Vicki Clark, Shirley Fergeson, Eleanor Wilson, Brown, and Gaillard. This dissatisfaction centered on a number of issues (according to McGuire's testimony): it had taken the parties a long time to print -the contract and, until it was finally printed, the employees were not cer- tain of their benefits; the Union was successful in elimi- nating the 4-day, 10-hour-a-day workweek, 8 which, ac- cording to McGuire's testimony, the employees liked; and through the Union, the employees received inad- equate hospitalization and pension benefits. Originally, the other principal movers in this decertification move- ment were Clark and Fergeson, in addition to McGuire. After some initial discussions with Clark, Fergeson, and some other employees about the end of February or be- ginning of March, McGuire called Robert Anker, an at- torney whom she and her family had known for many 9 This had been instituted unilaterally by Respondent and, according to McGuire's testimony, the employees were m favor of it because they only had to report for work 4 days. The Union grieved this issue and an arbitrator found that Respondent had to pay its employees at the contrac- tual overtime rate for all hours over 8 m any 1 day, and ordered Re- spondent to compensate its employees for the overtime work previously earned. After fins setback, Respondent ceased this program. SHERWOOD DIVERSIFIED SERVICES 351 years; she told him that Respondent's employees were represented by a union; that a majority of the employees were dissatisfied with the service and benefits they were deriving from this Union; the existing contract was about to expire, and they wanted to know how to get rid of the Union. (She testified that she did this on her own without any assistance from Walasek or any other agent of Respondent.) Anker told McGuire that he did not have an immediate answer for her, but he would re- search the issue and call her back. Anker called her back about a week later and told her that it was necessary to file a petition to decertify the Union, and she needed sig- natures from 30 percent of the employees to support such a petition. He also told her that a lot of work was needed to get such a petition, and he first wanted to meet with the employees to be sure that they were seri- ous about decertifying the Union before starting the work. Anker testified that many years earlier he had been friends with McGuke's family; in February he received a telephone call from her; she said that she was employed by a telephone answering service where the employees were dissatisfied with the Union, and asked if he could assist them in getting rid of the Union. He told her that he was not an expert in the field, but he was interested in it, and he would look into it and call her again; Anker then researched Board practice and procedure, especially' the procedure to follow in decertifying a union. He called McGuire, told her that the procedure she was re- ferring to was decertification; a petition had to be filed and supported by signatures from a certain proportion of the employees. He also told her that his research con- vinced him that the most important factor was that the employees signed voluntarily, and he wanted to meet with the employees to be convinced of this. He also in- formed her that supervisors could not be part of the peti- tion. Anker told McGuire that, naturally, he would have to charge a fee for his service, but that he would not charge for the time spent in becoming acquainted with Board law. In addition, because he would be dealing with a large number of people, with the hope of obtain- ing future clients, he would keep the fee moderate, to be- tween $600 and $700. McGuire told him that she would speak to the other employees about how they would pay this fee. Frazier, who began her employ with Respond- ent in 1960, testified that prior to March 7 she did not hear employees complain about the Union, its benefits, or service. Applewhite (employed since 1971) also testified that she heard no such complaints. Linda McKiever, who was employed by Respondent in October 1982, but was on leave from mid-February through March 7, testi- fied that it was not until she returned to Respondent's employ after March 7 that she overheard employees (McGuire, Clark, and King) complaining about the Union. Frazier never heard any employees complain about the Union, according to her testimony. Cheryl Tollerson, who commenced employment with Respond- ent in October 1982, testified that prior to March 7 she did not hear fellow employees complaining about the Union. There are allegations that agents of Respondent par- ticipated in and, in fact, originated the decertification movement; the testimony regarding these allegations fol- lows: Eleanor Wilson, who had been the Union's shop steward prior to Dobbs, testified that early in the summer of 1982 (while she was still shop steward) Wala- sek called her to a meeting; only she and Walasek were present. He asked her how she felt about the Union. She said that it was all right, but the only thing she did not like was when she was in the hospital, the Union's cover- age did not reimburse her for all her expenses. Walasek told her that if the employees got rid of the Union he would give them Blue Cross and Blue Shield, and "anyone over 40, he would get rid of." (Wilson was then 38.) Walasek said that she would benefit from getting rid of the Union; when she asked him what specifically she would get, he would not answer. He also asked Wilson to look around for other employees who would help her; she never did. In the period after this conversation, Wa- lasek asked Wilson if she 'were working on what he had asked her, and she said that she was, even though she really was not. About the end of 1982, while Respondent was negotiating to purchase another telephone answering service, or its customers, Walasek said to Wilson "in a teasing way. . . I don't need you no more because the girls that I have now, they're not used to a union, so they'll be on my side." Walasek denies making any of these statements or having any such meeting with Wilson. Eleanor Wilson testified further that about March 3 Walasek told her that McGuire wanted to see her; when they met, McGuire took her to lunch. McGuire showed her a list of Respondent's employees and asked Wilson who she thought would sign to get rid of the Union. Wilson then went over the list with McGuire and told her who she felt would sign and who would not sign. McGuire then told Wilson that Wilson owed it to Wala- sek to help him because he had assisted Wilson when she was bankrupt; Wilson said that she paid the money back and did not owe him anything and would not sign to get rid of the Union. McGuire told Wilson that there would be a meeting on Monday, March 7, with a lawyer, to learn what they would have to do to get rid of the Union. McGuire paid the check for the restaurant and they left. McGuire testified that in February she had lunch with Wilson; she did not ask her who she thought would sign a petition to get rid of the Union, nor did she tell her that she owed it to Walasek to sign because he helped her with her bankruptcy. She told Wilson that she did not believe in unions and would like to know which of the other employees were dissatisfied with the Union. Walasek testified that during the period in ques- tion he never told Eleanor that McGuire wanted to speak to her. Wilson testified further that on March 4, about 4 p.m., Slattery asked her if she was going to attend the meeting on March 7; she answered that she was not, since she was off. Slattery then pressed the intercom button and said to Walasek that Wilson was not going to attend the meeting. As Wilson was about to clock out for the day, Walasek approached her and asked her why she was not going to attend the meeting. She told him that if he would give her a written guarantee that she would keep 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD her job she would attend; he said, "You know I'm not supposed to be involved." Walasek denies this conversa- tion. Wilson testified that she did not work on March 7 or 8; on March 9, about 9 a.m., Gaillard told her that Watts wanted to see her in the office. She went into the office and, as she was walking to where Watts was sitting, McGuire called her over and asked her to sign the peti- tion; Wilson said, "If you get my guarantee." McGuire then showed her some of the signature pages (she only recognized Debby King's signature) and Wilson told her that she did not want to be involved. Wilson then went to see Watts, who had nothing to say to her, and she re- turned to the board room. Gaillard testified that she cannot recall any instance in early March when she sent Wilson into the office to see Watts. McGuire testified that she discussed the union situation with Wilson on a number of occasions; on each of these occasions Wilson told her that she was afraid that if she signed the peti- tion, and the Union was not decertified, the Union would give her problems. Eleanor Wilson also testified that about 3 to 4 weeks later, Yvette Williams (she may have meant Yvette Wilson) told her that Walasek told her not to mention the Union's name on his premises; on hearing this, Elea- nor Wilson went into Walasek's office and asked him, "How are you going to tell somebody not to mention the Union's name on your premises?" and he said that as long as he pays the employees he has that right. She said, "Not even at lunch time?" and he said, "On the premises, at all." Some time that same day, Walasek ap- proached Eleanor Wilson and said that he wanted to speak to her. She said that if it had anything to do with the Union she did not want to hear it. Walasek then said, "I thought you were my friend and you didn't sign the petition." Wilson said, "I am your friend, that's why I didn't sign." Walasek testified that these conversations did not occur. Dobbs testified that in mid-February Walasek told her that he would like to speak to her. After asking how she was feeling, he asked her: "How do you feel that the Union is doing right by you? Are you satisfied with what the Union is giving you in the way of benefits?" Dobbs told him that she had no complaints. Walasek then said: "We're not in the days of John L. Lewis any longer. The situation with labor is different today than it was years ago. The need for unions is not what it used to be back in those days," and he named some large companies that were not unionized. Dobbs said that they probably were not unionized because they gave good benefits to their employees and Walasek said: "You know the Union dues that you're paying now and the money that we're putting in for your welfare fund and benefits. Could you imagine what we could do with that money?" When Dobbs asked what he could do with it, Walasek said, "We could have a profit sharing plan. And we could have a better, more elaborate medical plan such as Blue Cross and Blue Shield." He asked if she thought the ex- isting hospitalization coverage would be adequate for a lengthy stay in the hospital. She said that she never had a lengthy stay in the hospital, but the other employees seemed satisfied with the coverage. Walasek then asked Dobbs how old she was; when she answered he told her: "Why don't you just for the heck of it call the Union office and find out how much you would get if you decide to go out, for instance, next year." Dobbs did call the union office, asked the question, and was given a figure that she did not recall—"It wasn't an astronomical figure"—and she informed Walasek of the amount; he laughed. Walasek then asked her if she was aware that there was a move on to get rid of the Union, although he had nothing to do with it; she said that she was not. He asked if she knew that there were employees who were dissatisfied with the Union and she said that she had not heard that. Walasek then said that he was speak- ing to her in confidence and asked her not to discuss it with anybody. Dobbs agreed. Walasek then said that he would speak to her again the following week, and Dobbs walked away. Shortly thereafter, Dobbs discussed this conversation with fellow employees, who said that they heard rumors of the movement to get rid of the Union; they recommended that she inform Fisher of the conver- sation with Walasek, which she did. Walasek testified that he never made any such state- ment attributed to him by Dobbs, nor did he ever initiate any such conversation. In mid-January, Dobbs asked Walasek about Respondent's pension plan. He told her that it had been negotiated with, and approved by, the Union and there was nothing he could do about it. He asked her what the problem was, and she said that she thought that if she retired she would receive $108 a month. He told her that he did not believe she would re- ceive that much, but he might be in error, and before making any personal decision she should contact the Union to learn how much she would be receiving. She later informed Walasek that she called the Union to learn how much she would be receiving and learned that she would receive about $35-a-month pension. Dobbs testified that about a week after this conversa- tion with Walasek, the employees' paychecks were late in arriving at the office; she asked Walasek if he could lend her a few dollars and he gave her $10. Shortly thereafter, after receiving her pay, she put $10 in an en- velope addressed to Walasek (she did not expect to see him), with a note saying: "Thanks for the bread. Sorry, but I cannot be on your team." When she went to leave it for him she saw him and he said, "You couldn't wait until you got out of here last week. I thought I asked you for your confidence." Dobbs answered that there was no way that she could maintain his confidence while finding out if the employees were dissatisfied with the Union. Walasek then said: "That's all right. It's just as well that it's out." He shook hands with her and said, "Sorry, you're not going to be one of my team." Wala- sek testified that he never had such a conversation with Dobbs, but that months after this alleged discussion with Dobbs about her pension, she came to him to borrow some money. Yvette Wilson testified that on March 4, Slattery called her name and motioned for her to come to her. Wilson sat down with her and Slattery asked her if she could stay late on Monday and she said that she could. Slattery said, "We are having a meeting" and that her - SHERWOOD DIVERSIFIED SERVICES 353 work was good, and she and Walasek would like to dis- cuss her work with her. She told Wilson to keep it confi- dential. On March 7, about 10 a.m., Slattery told her that the meeting was canceled and would be held on the fol- lowing day. Yvette Wilson then approached Dobbs and asked her if she had heard anything about a meeting; Dobbs said that she had, and Wilson asked her if she thought she should attend the meeting, and Dobbs said that it was up to her. A few minutes later Eleanor Brown told Wilson that "they" wanted to speak to her in the office. When she walked into the office Watts stopped her and told her to tell Brown to come in first, that she should go back to the cell, which she did. About 10 minutes later Brown came out of the office and told Wilson to go in; Walasek and Watts were present. Wala- sek asked why she was telling the people that he wis at- tempting to get rid of the Union. Wilson said that she did not say anything like that, and Walasek said that he could bring in three people to say that she did. He then told her that when she saw Dobbs she should tell her that he was not trying to get rid 'of the Union, "And if you don't know what you are talking about, then don't saying anything." Walasek then reminded Wilson of her latenesses and absences and Respondent's rule that em- ployees late 5 days in 30 are subject to arbitration pro- ceedings for approval of discharge. He said that he was going to send her name to arbitration in an attempt to discharge her." Walasek then asked Wilson if she heard anything about a meeting and Wilson said that Slattery had spoken to her about a meeting. At that point, Wilson left. Watts never said anything during this meeting. Myrtle Applewhite testified that on March 4, about 4 p.m., she saw Slattery go to the end of the dias and sit down; she overheard Slattery tell Yvette Wilson that she wanted to speak to her; when Wilson came over to her, Slattery told her that there would be a meeting on Monday, and she wanted her to attend the meeting. She never explained the purpose of the meeting. Walasek denies any such conversation with Yvette Wilson, except that on a number of occasions, in February and March, he advised her that due to her latenesses and absences he would place her name before the impartial chairman either for discharge, or some manner of punishment and, in fact, he later did so. Rose Frazier testified that on March 7, about 11 a.m., McGuire approached and asked her to come into the office to speak to her on her iunchbreak; she went into the office at 5 p.m. She sat at a desk with McGuire, while others, including Watts, were sitting at their desks working. McGuire told her that management had decid- ed to go on their own and they had a lousy deal from the Union. She said that the union benefits were not good and conditions would be better without the Union. McGuire then asked Frazier if she had ever used her hospital benefits and Frazier said that it was better than nothing. McGuire said that management wanted to get rid of the Union and they had a better deal for the em- ,0 The contract provides that five or more unexcused absences or latenesses are "presumptive evidence of grounds for discharge." Accord- mg to the contract, however, prior to discharging employees, the em- ployer must obtam approval of the Union or, in the absence of that, ap- proval of the impartial chairman through an arbitration ployees; Frazier asked: "'What can you give me that I don't already have?" and McGuire said that she should bear with them, that she should be assured that it was better than what she had. Frazier said that she did not want to get rid of the Union. Frazier first testified that she is not certain"- whether McGuire specifically men- tioned Blue Cross and Blue Shield, but on cross-examina- tion, she testified that McGuire said that they were going to get Blue Cross and Blue Shield. McGuire also told Frazier that the Union's pension was not adequate to live on and that management would give them a better pen- sion. When Frazier asked McGuire to put some of these items in writing, McGuire said that she cannot make any promises, but that she should bear with her. Frazier asked what would happen if there were no union and McGuire said that the employees would not have to worry as long as they did their work properly. McGuire then asked Frazier if she would sign a petition to get rid of the Union; she refused. McGuire testified that on March 8 Frazier told her that she wanted to know what has occurred at the meet- ing, that she would like to discuss it that day with McGuire at 5 p.m when she finished work. When they met at that time, McGuire said that a few employees had decided that they did not want the Union and would rather deal directly with Respondent. Frazier asked what she thought the employees could get if they voted the Union out. McGuire said that she did not know, but they could ask for benefits better than those that, they were receiving through the Union. McGuire testified that she never told Frazier that management decided that they were going to go on their own, that management wanted to give the employees a better contract, that manage- ment had a better deal for the employees, or that the em- ployees would get a better contract without the Union. When Frazier asked her to put something in writing, McGuire asked her to bear with her, but that she could not do any negotiating. Linda McKiever testified that she was on leave from her employ as an operator for Respondent from mid- February until March 7. About 10 a.m., on March 7, Gaillard told McKiever that Watts wanted to speak to her. (McKiever's affidavit to the Board does not mention this.) McKiever went into the office and while-she and Watts were speaking McGuire came out of the confer- ence room and Watts said, "Linda, you remember Mari- lyn McGuire" and she turned and said, "Marilyn wants to talk to you for a few minutes." McGuire asked McKiever if she was aware of the meeting of employees to get the Union out of the office; 12 McKiever said that she was not aware of it and McGuire asked her if she would sign a paper to get the Union out. McKiever said she never had any dealings with the Union, so she would not sign to get it out. McGuire said that the Union was not providing good benefits for them and asked McKiever if she would like to have Blue Cross and Blue Shield and she answered that she would. McGuire said, " She testified, "I was not Interested in anything Marilyn had to say because I wanted the Union." 12 This question makes it appear likely that these events occurred on March 8 rather than March 7. 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "I'm pretty sure that once everything was settled about the Union that we could get Blue Cross and Blue Shield." She also said that she had worked for Walasek for 30 years and found him to be fair and honorable, and once everything was settled she was sure that the em- ployees would get Blue Cross and Blue Shield. McKiever said that she would think about it and left. McGuire testified that when McKiever returned to work she met McKiever and explained the petition to her and she said that she would think about it. Later that day, McKiever told McGuire that she still did not under- stand it, but why should she trust Anker, whom she did not know. McGuire said that he was available if she wanted to speak to him; McGuire dialed Anker's number, put McKiever on the phone, and walked out of the office. When she was finished with the telephone call McKiever told her that she now understood the petition, and Anker sounded like a nice man and she signed the petition. During this conversation, she never asked her if she would like to have Blue Cross and Blue Shield or tell her that once everything was settled they would get it. She told McKiever that most of the other operators wanted Blue Cross and Blue Shield and she was hopeful of getting it. McKiever testified further that about a half hour later, while she was on a cell, she received a call from Gail- lard, who was in the office at the time. Gaillard told her to act as if she were working and not let on that she was speaking to her; Gaillard then told her that they were both working mothers, and it was in her best interest to sign the paper to get the Union out; "How by signing the paper, getting Blue Shield and Blue Cross would be better for me all the way around." 3 As McKiever was working at the time, whenever a call came in she put Gaillard on hold. This conversation lasted about 30 mM- utes, during which McKiever put Gaillard on hold a few times; at the end of this conversation Gaillard told her not to tell anyone of their conversations and that she should go into the office and speak to McGuire, but not to go immediately; she should wait a few minutes, then proceed to the office to speak to McGuire. A few min- utes later, Gaillard told her it was all right for her to go into the office, which she did. Gaillard testified that about March, she had a conversation with McKiever about the Union. McKiever initiated the conversation and it was carried on over Respondent's trunk line. McKiever said that she had a problem; she wanted to know what kind of benefits they received through the Union; she did not know because she had never received a copy of the union contract. Gaillard told her that be- cause she was a dues-paying member she was entitled to it, and she should call the Union for a copy. They had a discussion of benefits, as they were both working moth- ers, but she did not promise McKiever any benefits if the employees got rid of the Union, and, in fact, she never discussed Blue Cross or Blue Shield with her. Regarding sending McKiever into the office to speak to McGuire or Watts, Gaillard testified that she does not specifically 13 Her affidavit makes no mention of Gaillard referring to Blue Cross and Blue Shield m this conversation. remember any such request, but it does occur fairly regu- larly. McKiever testified that at that point she went into the conference room, McGuire was present. McKiever told her that she still was not sure whether she 'would sign the paper. McGuire told her that other unions had Blue Cross and Blue Shield and asked her if she wanted these benefits, and she answered that she did, but she still was not sure. McGuire asked her if she wanted to speak to their attorney, Anker, and, when she said that she did, McGuire dialed his number. McKiever asked him what the petition consisted of; he told her that he was doing McGuire a favor in handling the case; she had told him that a group of the employees were dissatisfied with the Union and he was handling the case to get the Union out. She asked him who these women were, but he re- fused to say, and that was the extent of her conversation with Anker. McGuire then asked her if she would sign the paper and she told McGuire that she wanted to have Blue Cross and Blue Shield, but she did not want the Union removed. McGuire then asked her if she would sign the paper saying that she was dissatisfied with the benefits; McKiever asked: "Is this the paper to get the Union out?" and McGuire said that it was not. Accord- ing to McKiever's testimony, McGuire had two piles of paper in front of her at the time; one pile had signatures on them; the other pile had unsigned pages. She took a paper from the latter group and told McKiever to sign it "because this would just say I was dissatisfied with the benefits." McKiever told her that she did not know any- thing about the Union and it would be wrong for her to sign a document that she wanted the Union out, because she did not. McGuire asked her to sign it because she had to turn it in that day. She signed without reading it: "I believed I was signing a piece of paper . . . that just stated I was dissatisfied with the Union medical bene- fits." A document containing McKiever's signature contains the following two-line statement at the top of it: "We de- clare that we have read the above petition and that the statements are true to the best of my knowledge and belief." McKiever testified that she remembers seeing two lines at the top of the document, but does not re- member what they said. She does remember that below these two lines were the words "name, address and date." Below that it says: "We do not wish to be repre- sented for the purpose of collective bargaining by the ex- isting labor organization," with the Union's name. Fol- lowing that is McKiever's signature; she testified that when she signed the document there was blank space be- tween her signature and the top two lines referred to above. After signing the document, McKiever asked for a copy of the paper and McGuire gave her a paper, which she did not examine at the time; she folded it and put it in her pocket. The next week, while she was talk- ing to some of the other operators, she told Yvette Wilson of the above-described incident with McGuire. She showed Wilson the document that McGuire gave her and Wilson said that was the paper to get the Union out. For the next few weeks she looked for McGuire at SHERWOOD DIVERSIFIED SERVICES 355 the office to question her about the document, but did not see her. McGuire testified that after speaking to McKiever, as discussed, supra, she gave her a paper, similar to that given to the other employees, to sign. The paper stated: We declare that we have read the above petition and that the statements are true to the best of our knowledge and belief. We do not wish to be repre- sented for the purposes of collective bargaining by the existing labor organization: United Telephone Answering and Communication Service Union Local 780, AFL-CIO. Below were spaces requesting the employees' names, addresses, and the date. McKiever signed this document (she testified that it is her signature) with her address on March 9. Hers is the only signature on that page, just below the space provided. McGuire testified further that when she handed the paper to McKiever, nothing was missing from it, and McKiever read it and asked for a copy of the paper. McGuire made a copy on the office copier and gave it to McKiever. She never asked McKiever to sign the paper simply to say that she was dissatisfied with the union benefits; she told her that she needed the signature in order to have an election in which the operators would vote whether they wanted the Union out. Debby King, who has been employed by Respondent since February 1978, testified that about late February or early March either Gaillard or Brown told her (while she was working at a cell) that Walasek wanted to speak to her. When she walked into his office he asked her to sit down and they engaged in general conversation. King said that she and her husband George were short of income and that he was willing to work at a second job if Respondent would hire him." Walasek then said: [O]ff the record, I'm management, I'm not supposed to talk to you or say this to you, but you'll be get- ting a thing about the Union, we're going to have meetings, and we're going to have a discussion and somebody will give you a paper . . . to sign about the Union. Walasek then said that she would get better medical benefits, Blue Cross and Blue Shield. King asked about salary—would it go up, down, or stay the same; with the Union they received periodic raises. Walasek answered that he had to keep his operators happy, "so naturally you'll get art increase." He said that McGuire would be speaking to her more, and that the Union would be gone by June 1. King again asked Walasek about a job for her husband and he told her to have him can Walasek to see if they could work out something. Walasek specifically denies every portion of King's testimony regarding this alleged conversation, except a conversation regarding a job for her husband. He testi- fied that in about late February or early March, King came into his office and asked him for a $300 loan 14 She testified that she had previously informed Walasek a month ear- lier that her husband needed additional employment. (which she had done before). He gave her the loan and then she asked him if he would hire her husband George, who was out of work at the time. Walasek said that he would discuss it with Watts. King further testified that (at a time that she cannot re- member) Walasek told her: "I'm having a meeting at 6:00 with the members of the office" and they would discuss what he had earlier discussed with her, and that he would like her to be there. She did not attend the meet- ing. Walasek testified that he never made such a state- ment to King. King testified that on March 8, while she was working on a cell, either Brown or Gaillard told her that Watts wanted to speak to her in the inner office. When she got there she saw McGuire, rather than Watts. McGuire handed her a piece of paper and said it was the petition to get rid of the Union and it would be sent to the Labor Board. On direct examination, she testified that McGuire also said: "Well, you discussed it with Paul"; on cross-examination, she testified that the above is all McGuire said. King immediately signed the paper and returned it to McGuire. McGuire testified that on March 8, King approached her and said, `1) understand there's a petition and I'd like to sign it." She read it and signed it. McGuire never said that King had discussed it with Walasek. George King testified that on or about March 15, he met with Walasek to attempt to obtain employment with Respondent. Walasek asked him how he was and he said that he was fme, but that he needed another job. Wala- sek told him that he was trying to get rid of the Union because it was not good for the employees or manage- ment and he asked him how he felt about it. King said that he did not care one way or the other; he was just looking for a job. Walasek asked him to fill out an appli- cation for employment, and when he completed it he re- turned to the office and Walasek and Watts were present. After King completed some other forms, Wala- sek handed him a paper to sign and said, "George, do me a favor and sign this." King read it and signed it in the presence of Walasek and Watts. He started working for Respondent that day as a trainee. On cross-examination King testified that he is positive that he was hired (and worked for 2 hours) on the same day that he filled out his employment application and that he signed the peti- tion on that day as well. King identified his signature on a petition; it was the only signature on the particular page. The date next to his name and address is 3/16/83, but the "6" was clearly written over another number; what this number was, I cannot determine. King also tes- tified that the declaration (as recited, supra) was on the document when he signed it, but the Union's name was not present. He also testified on cross-examination that Walasek asked him how he felt about the Union, that he did not volunteer the information to Walasek. In an affi- davit requested by, and given to, counsel for Respondent on August 11, 1983, King stated, inter alia: I was hired as a telephone operator and I also work as a messenger. I have been employed since March 13, 1983. Paul Walasek did not ask me about the Union, but I volunteered information about my feelings 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about the Union. I don't believe Paul Walasek asked me to sign a decertification petition. I don't remem- ber if I signed the petition.16 When King was shown this affidavit he testified: "I did not say that. What I said, was, Paul Walasek asked me about the Union, I didn't say he did not, I said he asked me about it. I did not offer or volunteer anything." He also testified: "It was Paul Walasek who asked me about the Union, and I voluntarily told him that I didn't care about the Union one way or the other." He testified that he did not read the affidavit or the assurance against reprisal at the top of the affidavit, nor did he read the handwritten three lines above his signature that states that the two-page handwritten statement is true to the best of his knowledge and belief ("because I was aggra- vated and I didn't want to be bothered with it"). He also testified that the attorney informed him that, under no circumstances, would it be used in any court action. McGuire testified that on March 16, King approached her and told her that he wanted to sign the petition; he signed it and wrote the date as March 15; she informed him of the correct date and he changed it to March 16. Walasek testified that he never spoke to King about the Union or made the statements attributed to him by King, nor did he give King the petition to sign, nor did King sign it in his presence. Walasek identified King's applica- tion for employment with Respondent, which is dated March 7. The top of the first page of this document con- tains Watts' handwriting stating: "To Start Tues: 3/15," which was later changed to "3/11." Walasek also identi- fied a check of Respondent's made out to, and endorsed by, King in the amount of $7.26, together with Respond- ent's accompanying notation that it was for 2 hours em- ployment on March 11. He also identified Respondent's records of its contributions to the Union's pension fund wherein Respondent stated in March and May that King's hiring date was March 11. Sandra Gunn testified that about late February or early March ,while she was at a cell, either Brown or Gaillard told her to go into the office to see Walasek. She went into Walasek's office (nobody else was present) and he asked her if she knew anything about a petition to get rid of the Union. She said that she had heard about it through other operators, but did not attend the meetings they had. Walasek asked: "Well, what do you think about it?" Gunn said that she did not have time to think about it, but she felt they needed a union. He did not en- courage her to sign the petition. Walasek said that he would appreciate it if she did not mention to anyone what they had spoken about; that it would be a great favor to him. Gunn returned to work. On cross-examina- tion counsel for Respondent pointed out to Gunn that in her affidavit to the Board she stated: "I never spoke with Paul Walasek and to the supervisors about the Union." When asked to explain this inconsistency, Gunn testified that when she spoke to the Board agent who took the affidavit, she observed Walasek's request to keep the conversation confidential; after the commencement of the strike, she informed one of the other operators of her 15 This affidavit contains a prepared assurance against reprisals. conversation with Walasek and was told that it was im- portant that she inform the Board of the conversation, which she did. Walasek testified that he never spoke to Gunn about the Union or about the decertification peti- tion. Gunn testified that about a day or two after the above conversation with Walasek, either Gaillard or Brown told her to shut down her position on the cell and to see McGuire in the conference room; nobody else was present at the time. McGuire introduced herself and asked Gunn if she knew anything about the petition. Gunn said that she had heard of a petition through the other operators. Gunn saw that McGuire was holding a few sheets of paper stapled together and, assuming that it was the petition with employees' signatures, , she asked to see it. McGuire refused to let her examine it, but held it up at a distance from her so that she could see that a lot of employees had signed. McGuire asked her how she felt about signing, and Gunn said that she did not want to rush into it, she wanted to discuss it with other em- ployees. McGuire told her that she should have attended their meetings and Gunn said that she did not want to attend. McGuire told her that she should not feel threat- ened about her job as long as she was a good operator. 'Gunn said that she would not sign until she was assured, in writing, that she would get something that the Union was not getting for her. McGuire then said that they would get Blue Cross, Blue Shield and other benefits, and that she should not worry about it because she had known Walasek for a long time and he is a fair person. She told Gunn to think about it, and she would discuss it with her again. Gunn testified further that on the following day (which she believes was Friday), Gaillard told her to go to the conference room to see McGuire. She shut down her cell position and went into the conference room where only she and McGuire were present. McGuire asked: "Have you thought about it?" and Gunn said that she had, but she was still uncertain about signing the pe- tition. McGuire told her that if she decided to sign the petition she should contact the office and they would contact McGuire. She did not contact McGuire nor did she sign the petition. McGuire testified that she had two meetings with Gunn in the office, although it is not clear from her testimony who initiated these meetings. Gunn wanted to know more about the petition and McGuire explained it to her; Gunn said that she wanted to think about it. She never told Gunn that if the operators got rid of the Union they would get Blue Cross and Blue Shield; she did tell Gunn that she had learned from Re- spondent's representatives 16 that other of Respondent's nonunion subsidiaries had Blue Cross and Blue Shield coverage for its employees and, in her opinion, 17 if the 16 McGuire testified that she learned of the benefits enjoyed by em- ployees of Respondent's other subsidiaries about the end of February by asking Michael Tannenholtz, Respondent's controller, about them. She told him that she was dissatisfied with the Union's health plan and that she was discussing it with other employees 17 Gunn testified that McGuire never said "in her opimon " = SHERWOOD DIVERSIFIED SERVICES 357 operators negotiated with Respondent without a union, they would probably be able to obtain the same benefits. When Gunn asked her how she knew the operators would do better than they were doing with the Union, McGuire told her that she knew Walasek to be a fair man. Meetings, attended by Anker, McGuire, and other of Respondent's employees took place in the conference room" on Respondent's premises on Monday and Tues- day, March 7 and 8. At these meetings, decertification of the Union was discussed. McGuire testified that the em- ployees were informed of these meetings in two manners: word of mouth and a notice that she typed in the office and posted on the bulletin board on the afternoon of March 7 stating that there would be a meeting to discuss problems that the employees were experiencing with the Union. The notice stated that the meeting would be held on March 7 and 8 at 6 p.m., but McGuire does not recall whether the notices specified the location of the meet- ings. McGuire testified that prior to posting this notice informing the employees of the meetings, the employees had been discussing it among themselves, and the re- sponse was so great that she knew that the operator's lunchroom (which was small and had its entrance on the board room side of the facility) would not contain ade- quate space for the meeting, so, on the morning or early afternoon of March 7, she asked Walasek if she could have permission to use the conference room for a meet- ing. He asked the time, she said that it would be 6 p.m., and he said that it would be all right because the office would be closed, as long as they left the room in the same condition that they found it in. He did not ask the purpose of the meeting nor did she tell him. Brown testified that about March 2 or 3 McGuire ap- proached her in the board room and told her that she, Valletta Clark, and Fergeson were the committee to de- certify the Union, and would she be interested in attend- ing a meeting in that regard; she said, that she would. Later that day, Clark and Fergeson also asked Brown if she would attend the meeting; she again said that she would; they did not ask her to join their committee or to assist them in any way. Sometime about mid-March, McGuire approached Brown in the afternoon, while she was working on a cell, and asked her if she would mind clipping notices to the employee's timecards in the rack next to the timeclock; McGuire did not tell her what the notices said. Brown said that she would not mind doing it, and McGuire handed her a stack of folded letters. Shortly before 4 p.m. (her usual quitting time) that day, Brown shut down her position," went to the dias where 19 This room is on the office side of the facility across from the main entrance to Respondent's office and adjacent to the reception area. In order to get into the conference room, operators in the board room would have to either walk through the entire office, or exit through the board room into the building hallway, walk down the hallway a short distance, and enter through the office entrance. 19 She was asked by counsel for the Charging Party: Q. Did you ask permission? A No, I didn't have to ask permission- I was officially off at 4.00 Q. But you did it before 4:00. A Yes, I did. Q. Did you ask permission to shut down early? A. From Ms Watts she got paper clips, and then went to the timeclock rack where she clipped these letters to each timecard. She did not read the letter until after she had completed clipping them to all the timecards. The letter informed the em- ployees that 60 percent of the employees had signed the petition to decertify the Union. Brown testified that nei- ther she nor any employees had previously attached no- tices to employees' timecards, but she was not surprised that McGuire asked her to do it (rather than simply handing out the notices directly to the employees her- self) nor did she feel there was anything wrong about doing it Anker and McGuire were present at both the March 7 and 8 meetings; numerous other employees at- tended the meetings as well. McGuire testified that the meeting of March 7 commenced at 6:05 p.m. and took place in the conference room; due to the large number of people present that evening, participating employees were in the reception area as well. McGuire introduced Anker and said he was there to assist them in their dis- cussions of what to do in order to remove the Union; he wanted to know what the complaints were and whether they were serious about it. At that point, Anker took over, introduced himself as a friend of McGuire, and said that McGuire told him that there were complaints and he wanted to hear about them first hand; at that point, he was "bombarded" by the employees with different complaints: employees complained about inadequate pen- sion benefits, health benefits that did not cover hospital cost, the fact they did not know what benefits they were entitled to because they had never received a contract from the Union, and "they were very irate" that the Union, in arbitration, had eliminated the 10-hour-a-day, 4-day-a-week shift (unilaterally implemented as discussed, supra). McGuire told those present that she had learned that other of Respondent's subsidiaries provided Blue Cross and Blue Shield benefits to their employees. At the conclusion of the meeting, Anker passed around the peti- tion he had prepared for employees signatures stating that they did not wish to be represented by the Union and gave the employees his telephone number in case they had any questions about the petition. Approximately 18 to 20 employees attended the meeting, and all signed the petition. The meeting lasted about an hour. McGuire testified that to her knowledge none of Respondent's agents were in the office or board room during this meeting. Anker testified that on March 7, he went to the build- ing in which Respondent's premises is located, took the elevator, and knocked on the door leading to Respond- ent's office (as compared to the door leading to the board room) about 6 p.m. On the prior day, he had "em- phasized" to McGuire that none of Respondent's repre- sentatiires 'could be present at these meetings. On that evening, McGuire assured him of it. McGuire and one or two other employees were at the door when he arrived. The large number of employees who were present neces- sitated that the meeting "overflow" into the reception area from the conference room. McGuire introduced him Q. And, what did you tell Ms Watts. A. I didn't tell her anything. I asked her could I go for a few min- utes. 358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as an attorney she had known for a long time and he was there to discuss the union question. (He testified that she did not introduce him as the attorney representing Re- spondent.) At that point he assumed control over the meeting, introduced himself, and passed around an at- tendance sheet for the signatures of those present (19 signed). Anker then said that he had been told that they were dissatisfied with the Union and wanted to get rid of the Union, and if that were so, the way to do that was called decertification and he was there to determine if they desired to decertify the Union; he had heard that there were complaints about the Union and he wanted them to tell him what their complaints were; "and the flood gates opened." The two principal complaints ex- pressed (according to Anker's testimony) were the insuf- ficiency of the medical benefits the employees received pursuant to the union contract, and the difficulty the em- ployees encountered in obtaining a copy of this contract (it took a year or two after the agreement was executed before they received a copy). Other points of displeasure that were expressed were that the pension plan provided for in the contract was inadequate, and that the employ- ees would rather work fewer days and longer hours, but the Union would not allow it. Anker then said that he had a petition with him that he would present to the em- ployees for signature; however, signing it was strictly voluntary; nobody would be forced to sign the petition, but once they signed it, they must stand behind it in case the Board questioned their signatures. He also told the employees that he expected to be paid for his time and he felt that a reasonable fee for his work was between $600 and $750. Anker then passed the petition to the em- ployees and asked the employees to sign it if they wished to do So. All of those present signed; Anker told the em- ployees his address and telephone number and told them to call him if they needed any clarification of what he said, and about 7:30 p.m. he left. Anker testified that at neither this meeting, nor the meeting the following evening, did McGuire say that the Union was no good and that Respondent had more to offer than the Union, that Respondent would give them Blue Cross and Blue Shield, medical coverage, and merit raises, but that Re- spondent could not initially make an offer to them, they first had to get rid of the Union; nor did she make any statement promising increased benefits to the employees if they got rid of the Union. Brown testified that at this meeting Anker said that he was a friend of McGuire and he was there to explain the decertification petition to them and wanted them to say what they wanted him to do (he did not say that he rep- resented Respondent). He said that signatures were nec- essary for filing a petition and they should be sure that was what they wanted to do. After introducing Anker, McGuire did not say anything. At this meeting Clark complained about the Union's hospitalization coverage and pension plan and Slattery also spoke about the inad- equacy of the hospitalization coverage they had. Gaillard testified that at this meeting of March 7 Anker told them that McGuire had contacted him and he was there to hear what they had to say. He said that he understood there were problems and he would like the employees to tell him about them Sandra Minor attended the March 7 meeting; she testi- fied that McGuire introduced Anker as an old friend and said that he was there for guidance and to answer any questions that they might have; she cannot recall if McGuire said anything else at the meeting. Brown spoke (but Minor testified she cannot remember what subject she spoke about) and Slattery complained about the amount of the pension the Union provided employees on retirement. After more discussion, including some criti- cism of the Union's health benefits by the employees, Anker handed out the petition for signatures; he said that it was to request an election and only those who wished to do so should sign it. During this meeting neither Anker nor McGuire made any promises or said that the employees could get more benefits if they decertified the Union, nor did Anker say that he represented Respond- ent or Walasek. Shirley Fergeson testified that McGuire asked her if she would attend the March 7 meeting and she said that she would. McGuire told her that they would discuss the union benefits at the meeting. Ferge- son's recollection of this meeting is limited to Anker tell- ing those present that they should sign the petition, if they wished to do so, but "you don't have to if you don't want to sign." She testified that she did not hear McGuire speak about Blue Cross and Blue Shield or say that the Union was no good or that Respondent could offer the employees more benefits than the Union. Cheryl Tollerson (who was hired in October 1982) tes- tified that on March 7 McGuire informed her that there would be a meeting that day at 5 p.m. She did not tell her the subject of the meeting; she attended the meeting. At the meeting Anker introduced himself and said that he would represent them if they decided to decertify the Union Anker then asked employees if they had anything to say; Slattery spoke of the inadequacy of the hospitali- zation benefits; Clark spoke of the inadequate pension provided by the Union. Nobody spoke positively about the Union, and McGuire never spoke about Blue Cross or Blue Shield, nor did she say that Respondent could provide better benefits than the Union, nor did Anker make such a statement or say that he was speaking on behalf of Respondent. At the end of the meeting, Anker passed around a paper and said if the employees wished to, they could sign it to get rid of the Union, but that it was voluntary. Walasek testified that on March 7, about noontime, McGuire asked him if she could use the conference room that evening; she did not mention the specific purpose of the meeting nor the time, nor did he know or ask the purpose. Walasek's actions that evening are fully dis- cussed, infra, regarding Fisher's visit to Respondent's premises. There was also a meeting with Anker on Respondent's premises on March 8; unlike the March 7 meeting, some of the General Counsel's witnesses attended and testified to what occurred at this meeting. Yvette Wilson testified that she learned of the March 8 meeting when she saw a letter from Slattery on the bulletin board that day an- nounhing the meeting. The meeting was held in the con- ference room on Respondent's premises; present, in addi- tion to Yvette Wilson, McGuire, and Anker were Grace SHERWOOD DIVERSIFIED SERVICES 5 359 Daniels, Singletary, Selma Gilbert, Vicki Clark, and a friend of McGuire's, who Wilson had first seen on Re- spondent's premises the prior day. Anker introduced himself as a lawyer. McGuire began the meeting by saying that the Union was not any good and that Re- spondent could offer the employees more Blue Cross and Blue Shield coverage and merit wage increases. She also said that they would not get rid of the Union complete- ly, but the Union was not doing anything for them. Gil- bert then asked McGuire about job security and McGuire said what made her think Respondent would get rid of her because she had been employed for a long time. None of the operators at the meeting expressed dis- satisfaction with the Union, nor does she recall Anker saying anything. At the end of the meeting (which lasted about 45 minutes) McGuire put a folder she was holding on the table and asked the employees to sign it if they wished to do so. The woman who came into the meeting with McGuire said that she had signed the prior evening and asked if McGuire wanted her to sign again. Yvette Wilson testified that she cannot recall McGuire explain- ing the purpose of the paper and she cannot recall what, if anything, was written or typed on it. The only thing she remembered was that it contained King's signature. There is a document in evidence containing the decertifi- cation language recited, supra, with King's signature di- rectly below (and dated March 8) and six other signa- tures (none of whom, apparently, attended this meeting) below it; nobody signed the paper. The only other witness of the General Counsel to tes- tify about this meeting, Daniels, testified that she learned of the March 8 meeting from a notice posted on the bul- letin board stating that it would be held in the confer- ence room. She testified that she does not recall whether it referred to the purpose of the meeting. She arrived a few minutes after 6 p.m.; present were Singletary, Yvette Wilson, Vickie Clark, Anker, and herself. Anker intro- duced himself as a lawyer representing Respondent; at that time McGuire entered the room with a woman whom Daniels had never seen before. McGuire said that there was a committee, and "we" can get you better medical benefits, a better pension, and more money; she said that the medical coverage they had would not cover expenses of a hospital stay. One of the employees asked what she could offer them, and she said, "Well, we can't offer you anything now"; this employee answered by saying that the Union gave them free doctor and dental care and a pension, job security, and definite benefits. At the end of the meeting Anker said that he had a petition (or paper) that the employees should look at, and any- body wishing to sign it can do so. Daniels immediately left without looking at the petition. McGuire testified that the March 8 meeting began about 6 p.m. in the conference room on Respondent's premises. She opened the meeting by introducing Anker and said that there was a meeting the prior evening at which the operators expressed a lot of complaints about the Union and they were thinking of attempting to remove the Union. Anker was there to explain to them what had to be done and to answer questions. Anker said that he was a lawyer (she testified that he did not intro- duce himself as a lawyer representing Respondent) and the procedure involved a petition. He said that McGuire had expressed to him the employees' dissatisfaction with the Union and there had been a meeting the prior evening at which employees expressed their complaints about the Union, principally regarding health insurance and pension, and he wanted to know if any employee had anything to say or had any questions. There was very little discussion at this meeting because, according to McGuire's testimony, the employees attending this meeting were prounion Anker said that at the prior meeting the employees complained about medical bene- fits, and "in general better health benefits are available, better than we're getting from the Union. . . and, if we did remove the Union and if We did negotiate on our own this is something that we could strive for." He did not promise improved benefits if the Union were decerti- fied, nor did she do so. In addition, she did not say that Respondent had more to offer than the Union. McGuire informed those present that she had checked and learned that other of Respondent's affiliates provided Blue Cross and Blue Shield to their employees "and in my opinion, I thought we could get the same benefits if we were work- ing just with management alone." At the conclusion of the meeting, Anker put down the petition and said that the employees were free to sign it, if they wished; nobody signed. Anker testified that on March 8 he arrived at Re- spondent's premises at 6 p.m. and entered through the door to Respondent's office. About eight people were present at this meeting; he circulated an attendance sheet, but nobody signed it. McGuire introduced him and he said that there was a movement to decertify the Union. He then reviewed the prior evening's meeting and at that time, a lot of employees expressed dissatisfac- tion with the Union. Specifically, that there were com- plaints about the Union's health coverage and pension, and it took a long time before_ they received a copy of the contract from the Union. He told the employees that he had with him a petition to support the decertification movement and he wanted to know if they wished to sign the petition; if they wished to sign it, they had to do so voluntarily and, later, stand behind it if they were ques- tioned about it. According to Anker's testimony: "they were a much more taciturn group and so what I did was I tried leading by asking them to respond to a specific complaint I heard the night before, for example, the pen- sion plan, medical plan, and there was not a great deal of give and take." At some point in the meeting Anker placed the petition on the table and told the employees that they were welcome to sign it, and if they had any questions he would be happy to answer them. Minimal comments were made by some of those present, but nobody signed the petition and they left. Anker testified that McGuire's participation that evening was about the same as the prior evenings; she said that some unions had better medical coverage than they had, but she never promised increased benefits to employees to induce them to support the movement to decertify the Union nor did she say that Respondent could not offer anything; first they had to get rid of ihe Union before an offer could be made. According to his testimony, McGuire also never 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD said that the Union was no good and Respondent had more to offer than the Union, that she was there to help the employees receive better benefits because the Union was not doing much, or that Respondent could offer them Blue Cross, Blue Shield, medical expenses, and merit raises. The meeting lasted about an hour or less. McGuire testified that Anker's fee was $650, although no bill was ever sent. This bill was paid by two money orders: a bank money order dated March 15 in the amount of $400 and made payable to Anker was re- ceived in evidence. Anker testified that about that day or the next the money order was dropped off at his office by an employee of Respondent. Anker testified that at a later time he received another payment of $200 or $250, but he is not sure of the date, and made no copies of the form of payment. McGuire testified that at the March 7 meeting the employees discussed how they would raise the money to pay Anker's fee and agreed on a raffle; after rejecting the idea of a television set as the first prize in the raffle (too expensive) they agreed that both the first and second prize would be a $50 bond (which costs $25 each). McGuire arranged with a friend to print the tickets: the tickets were two-part tear-off tickets con- secutively numbered. The inside part had the number and space for the purchasers name and address; the out- side _part had the number, the prizes, and the name— committee for the operators—printed on it. The tickets were priced at 25 cents, five for $1. Approximately, 3500 were printed and $700 was collected. A friend of McGuire's printed these tickets for her "at cost"—$25, which she lent out and was later reimbursed for. A number of the operators sold these raffle tickets; it was only supposed to run for a week or two (no drawing date was listed on the ticket, according to McGuire's tes- timony) but participating operators were often absent, so, "it was delayed for quite awhile." She testified that she does not remember when the drawing was; the raffle was won by the neighbor of one of the operators. Raffle tick- ets were not sold to people employed in Respondent's office—"Because we knew they shouldn't be involved, it was just us girls and we wanted to do it on our own." McGuire held the raffle money as it was collected; at first she kept it in a locked drawer in the board room (Gaillard and Brown had the key); when the amount of money held increased she told Tannenholz that she had money that she would like locked up; he did not ques- tion her at all about it, nor did she tell him the amount or source of the money. He unlocked and opened the drawer, she put the money in the drawer, and he locked it and kept the key. Brown testified that, at some point, she was asked to hold the raffle money and she kept it for about a week; when the amount was getting too great, she turned it over to Tannenholz to hold; it was in a manila envelope and she asked Tannenholz to lock it up for her; she did not tell him what the funds represent- ed, nor did he ask; he locked it in the drawer for her. Walasek testified that the first that he was aware of the purpose of McGuire's conference room meetings on March 7 and 8 was on March 14. When he returned to the office on that day (it appears that, on that day, he returned from Florida, where he had been since March 8) "on my desk were a couple of memoranda from Local 780. One of the memoranda discussed in it a decertifica- tion—a petition—a decertification petition that had been circulated at the [Respondent]." (It appears that Walasek is referring to the unfair labor practice charge in Case 2- CA-19496-2, which alleges that Respondent violated Section 8(a)(1) and (3) of the Act by soliciting employees to participate in a decertification petition and by con- ' ducting meetings in that regard. This charge is dated Friday, March 11, but the affidavit of service states that it was not mailed until March 14, a Monday. The unfair labor practice charge in Case 2-CA-19496-1, alleging that Fisher was denied access to Respondent's premises, is dated March 10, was mailed on March 14, and re- ceived by Respondent on March 16.) After discovering these memoranda, Walasek called other employer-mem- bers of the Association in search of an attorney, and was given the name of his present counsel. Walasek testified, further that on March 16, McGuire came into his office and started to tell me that they had two meetings in the office, and that they were circulating a decertifi- cation petition, and that they were ready to file it the following day. And I said, I'll tell you what, I don't want to hear any more of it. Please cease this discussion. And that was the end of the discussion. He testified that during this discussion McGuire "clearly indicated that goodly number of more than half had signed the petition." Later that day Walasek found the following letter, dated March 16, on his desk: NOTICE TO ALL EMPLOYEES!! A petition for an election was delivered today to our attorney signed by close to 60% of your co- workers. Please be advised that there are a handful of em- ployees who do not appreciate our success. You may, therefore, be asked to sign a document stating that you were forced or threatened to sign our peti- tion, which, of course, is a lie. PLEASE BE ON YOUR GUARD McGuire testified that she spoke to Walasek on that one occasion (March 16) because a number of employees wanted a written commitment regarding what they would receive were they to decertify the Union. She agreed: "The only thing I could do is ask." She told Wa- lasek that some of the employees were interested in sign- ing the petition to remove the Union "and they wanted to know if management could offer us anything in black and white, if there was . . . no union." According to McGuire's testimony, Walasek's reply was simply: "I cannot tell you anything. You have a bargaining agent." On March 17 and 18 Walasek met with counsel and, as a result of those meetings, he sent the letters referred to, supra, to the Association withdrawing from the Associa- tion. Walasek testified further that about a week later, or within the week after March 16, Clark came into his office and told him that a petition was filed and she wanted him to know who the signatories were to that petition. She left the signatory pages on his desk. This SHERWOOD DIVERSIFIED SERVICES , 361 consisted of 8 pages and contained 32 signatures. As stated more fully, supra, the caption of these pages states that the employees do not wish to be represented by the Union. After Clark left, WaJasek called counsel, who suggested that he compare the signatures on these pages with Respondent's files and W-4 forms, which he did. This check established that of 56 or 57 employees, at the time, 32 had signed the petition. It is undisputed that on the evening or late afternoon of March 7 and 8, Fisher came to Respondent's premises and was not admitted; what is disputed is the time that he arrived at the premises and what actually occurred on these occasions. Because Fisher did not testify, the facts are taken from the testimony of other witnesses. It should initially be noted that, as will be discussed, infra, the March 7 incident is more significant than the one that occurred the following day (principally for credibil- ity purposes), but it appears that a number of the wit- nesses had difficulty distinguishing the two. McKiever testified that on one of these days, about 5 p.m., she heard Fisher knocking on the door leading to the board room, identifying himself, and asking to be ad- mitted. Either McGuire or Watts told the employees that the door was not to be unlocked and Fisher was not to be let in, and that any employee leaving the premises had to do so through the office. Frazier testified that on March 7, about 5 p.m., she heard a loud knocking on the door leading into the office; she saw Tannenholz go to the door and say to Watts and McGuire that it was Fisher; either Watts or McGuire told Taimenholz not to let hen in, and they locked all the doors although, nor- mally, the board room door is not locked. Fisher kept knocking on the door and Watts told him that it was after office hours and McGuire said that she would call the police. Fisher kept knocking on the door and a few minutes later Frazier told McGuire that she was going to leave for the day and McGuire arranged for Tannenholz to take her outside. When she and Tannenholz walked out of the board room Fisher and Mark Felton, market- ing director for Respondent, were at the door: Fisher was attempting to knock on the door and Felton was standing between him and the door with his arms up at- tempting to prevent Fisher from knocking on the door. Applewhite testified that on March 8, about 4 p.m., she left Respondent's premises with Clark; when they exited the elevator at the ground floor of the building they saw Fisher, together with a woman from the Union's executive board. Applewhite stopped to talk to Fisher and Clark left. Fisher asked Applewhite if she knew about the meeting that was going to be held; she said that she did and he asked who was at the Respond- ent's premises, and Applewhite said that all but the 4 p.m. operators were still there; Fisher said that he was going to the premises to see what was occurring there, and he left and went upstairs. She testified that Fisher had previously been at the premises without being barred from entering, and that the board room door was locked all that day, whereas it is usually left unlocked, except during the late hours. Daniels testified that on March 7 at 5:30 p.m., she first observed Walasek sitting at the dias; at 6 p.m., as she was leaving work, he was still sitting at the dias (which he normally does not do for more than a few minutes). When she was leaving the building, she met Fisher. On March 8, between 5 and 6 p.m., she heard knocking on the board room door and she heard somebody say, that it was Fisher, but they would not let him in. Gaillard and Brown were at the dias at the time. McGuire testified that on March 7, about 5:45 p.m., she heard Fisher bang- ing on Respondent's office door and then the board room door; she did nothing about it as she was preparing for the meeting. On March 8, about the same time, while she was speaking to Frazier, she again heard Fisher banging on the door. She did nothing about it; did not lock any doors, nor instruct anyone to do so. She did ask Watts if she thought the police should be called, and Watts said that she did not think so. Felton testified that on March 8 (he was hired by Re- spondent on February 17) between 5:30 and 5:45 p.m., while he was in his office, he heard very loud banging on the office door; he asked who was there and what they wanted and the answer was "It's Jerry Fisher and what I want is none of your business, you have to let me in." Because of the amount of noise, he was afraid to open the door and told Fisher that he could not come in because the office was closed; he should return the fol- lowing day in a peaceful manner. Fisher insisted that he had a right to come in and would break down the door if necessary. Felton testified that he knew that Fisher was involved with the Union, and he went to Watts' office (on his own initiative) and went through her desk and located the union contract, which he had never seen before. (About that point Fisher ceased banging on the office door and commenced banging on the board room door.) Felton then photocopied article X of the contract ("Visitation: Union representatives shall have the right to visit any office during business hours, provided it does not interfere with the operation of the office"), and opened the door and handed it to Fisher. He and Fisher then argued about the application of this provision and he attempted to convince Fisher to return the following day. When Fisher continued banging on the door, Felton became concerned about what might occur, and he stood in front of the door to prevent Fisher from banging on it. Fisher then picked up a hallway fire extinguisher, which Felton later convinced him to drop. Shortly thereafter, Fisher (and a female companion who did not identify herself) left; this entire episode lasted about 45 minutes. Felton testified that he had no prior warning that Fisher would be arriving that evening, and that during this period, Watts was in the board room, but he did not hear her say anything. Brown testified that in March, the usual practice at Respondent's office was that the door to the office was locked at all times, and the door to the board room was locked about 4 p.m. Tollerson testified that on March 8 she heard knocking on the door; she asked Brown who it was, and Brown told her that it was Fisher. Minor testi- fied that the time that the board room door was locked (during that period of time) varied; it could be as late as 5:30y.m., depending on who is present. She also testified that during the March 7 meeting she did not hear any banging or knocking on the door. Anker testified that 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD during these meetings he did not hear anyone knocking or banging on either of the doors to Respondent's prem- ises. Walasek testified that on March 7 and 8 he had no idea of the purpose of the meetings to be held in the con- ference room on those days; nobody ever informed him that decertification meetings were to be held at that time and he never saw any notice to that effect. On March 7 he was at Respondent's premises; about 5:40 or 5:45 p.m. he left the premises with Watts and Anthony Russo, president of Respondent. They exited through the office door and left nobody in the office, although the board room was "full to capacity." When they exited the eleva- tor on the main floor of the building he saw Fisher (with a woman whom he could not identify). Walasek said hello to Fisher and asked him what he was doing there and Fisher said that he was visiting the premises to see his membership. Walasek told him that it was after 5 p.m. and the office was closed, so he should return the next day. Fisher said that he had a right to be on the premises anytime he wished and Walasek disagreed saying the contract refers to business hours. Walasek asked Fisher if he intended to go upstairs and when he said that he did, Walasek took the elevator back to Re- spondent's premises (without Watts or Russo), went through the door into the board room (it was unlocked), locked the door behind him, and advised Brown, Gail- lard, and some operators that the door was to remain locked and that Fisher was not to be let in until "busi- ness hours" the following day. Walasek then sat at the dias, reading a newspaper; he did not observe what was occurring because Fisher was on his mind: "He was all consuming." About 5 to 10 minutes later he heard a loud banging on the door leading from the hall to the board room. This banging lasted for about a minute or two and he waited another minute and walked out the door (Fisher was no longer there) and left Respondent's prem- ises through the board room door. (This was between 5:50 and 6 p.m., according to Walasek's testimony.) During this entire period of approximately 10 minutes he never went into the office area nor did he see Anker arrive at the office. On March 8, Walasek came to the office and, after lunch, went to Florida; he returned to Respondent's premises next on March 14. Walasek's ex- planation for his quick action in returning to the premises and locking the board room door in order to prevent Fisher's entrance an March 7 is that Fisher causes diffi- culties even when he visits the premises during the day; but by arriving when he did there was nobody "to some- what restrain his activities." To his knowledge, this was Fisher's first "after hours" visit to the premises. On June 3, Vincent D. McDonnell, the impartial chair- man designated by the Union and the Association in the contract, issued the following award, after a hearing at which all the parties had full opportunity to offer evi- dence and argument and to examine and cross-examine witnesses: The issue involved in this case is the union's right to "visitation" under Article X, Visitation of the contract. That clause is quoted below: "Article X. Visitation: Union representatives shall have the right to visit any office during business hours, provided it does not interfere with the oper- ation of the office." Clearly the union has a right of visitation. On March 7, 1983 two union representatives appeared at the employer's place of business at 5:15 p.m. in the evening (exact time disputed). When the repre- sentatives, including Mr. Fisher arrived at the em- ployer's place of business 210 East 86th Street, New York and announced themselves in the lobby to the employer, the employer advised them they could not go into his premises since it was after 5:00 p.m. The employer testified the building "closes" at 6:00 p.m. It was also testified that Federated Telephone Answering Service, Inc. is on a 24-hour, around- the-clock basis. There are two distinctive issues in- volved. Visiting the administrative offices of Feder- ated which operates Monday through Friday, 9 a.m. to 5 p.m. and visiting its facility which operates continuously. It is the decision of this Arbitrator that the Union has the right to both. Article X gives them that right. The employer testified that during the week on Monday through Friday between 9 a..m. and 5 p.m. the union could drop in any time and he would see them. The employer also testified that on Saturday and Sunday the union could visit the working area but would first have to advise the employer. This Arbitrator sees no difference in visiting on Saturday and Sunday and after 5 p.m. Accordingly this Award is that the union has the right to visit after 5 p.m. but must notify the employer before 5 p.m. of its intent to do so and it is the obligation of the employer to advise its management representa- tive, whomsoever on the premises of the upcoming visit and to permit such visit. I so AWARD. The remaining allegation is that Respondent, on or about April 7, refused to supply the Union, through its accountant, Jerry Schwartz, with specified information that was relevant to it as the collective-bargaining repre- sentative of Respondent's employees. Shortly prior to March 31 Schwartz was told by Howard Mayer, the Union's accountant, to go to Respondent's premises to perform an audit of their payroll records. Schwartz called Tannenholz and made an appointment to go to Respondent's premises. He arrived at Respondent's premises on March 31 and asked for, and received, its payroll register and the dues sheets; while there he was checking these records to verify that union dues were timely deducted and transmitted to the Union within the required 30-day period for employees hired in 1981. He remained at Respondent's premises for approximately 6 hours and arranged with Tarmenholz to return on April 7. On that date, he returned to Respondent's premises and commenced inspecting the timecards, timesheets, and payroll register for an audit of Respondent's overtime payments. While he was checking these records, Tannen- holz received a telephone call and he told Schwartz that the caller wanted to speak to him Schwartz took the SHERWOOD DIVERSIFIED SERVICES 363 , phone and the caller was Walasek who asked Schwartz what he was doing; he said that he was checking the overtime and Walasek said that pursuant to the contract he was not supposed to check overtime; Schwartz said that he was only doing his job, that he was checking on dues and overtime payments and did not know what the contract provided. Walasek said that he did not want Schwartz to continue doing what he was doing and that he would sue Schwartz and Mayer because he was not entitled to look at those records Tatmenholz then took the payroll register from Schwartz and told him that he could not look at it anymore. At that time, he had not completed his audit. A few months later Fisher gave Schwartz a schedule of employees with the number of overtime hours each worked and the number of overtime hours they were paid for; he asked Schwartz to call Re- spondent and check the authenticity of these records. He called Tannenholz and requested this information. Tan- nenholz transferred him to Watts who said that she would not give him the information. He was never given this information and was never again allowed to see Re- spondent's payroll register. Walasek testified that on the day of Schwartz' visit, he spoke to Tarmenholz, who informed him of Schwartz' audit and the records he was inspecting; he determined that Schwartz had "gone beyond the scope of his inquiry and audit" and Walasek told Schwartz that he would not be allowed to inspect the wages and hours portion of their records. Received in evidence was an arbitration award, dated December 16, 1982, issued by Impartial Chairman McDonnell regarding the 10-hour day instituted by Re- spondent about September 1982. This award states that Respondent unilaterally instituted this change by having 22 employees sign a petition to Fisher stating that they voluntarily accept the 10-hour-a-day, 4-day workweek. The Union objected to this practice the following day. The award states that the contract provides for a 5-day workweek and that any employee working in excess of 8 hours in any working day shall be paid at the overtime rate. The award found that Respondent must negotiate with the Union prior to making such a fundamental change and, because it did not do so, it was ordered to reinstate the 5-day, 40-hour workweek, and that "all em- ployees who worked over eight hours in any one day since the date of the change are to be paid overtime as required by the contract and to do so retroactively." On January 10, the Union wrote to Respondent saying that they intend to send an accountant to audit Respondent's "payroll records." Walasek testified that after receiving the award and the January 10 letter from the Union, he refused to allow Schwartz to inspect its payroll register because he was only to inspect for contributions to the health, welfare, and pension plans; the Union "had no business in our records." He testified that within 10 days of the award, Respondent made payment to employees pursuant to the award; when asked on cross-examination if there was a dispute whether the amount of these payments were cor- rect, he testified: "Not on our part." However, these payments by Respondent were only for the hours in excess of 40 for the weeks in question, not for the hours in excess of 8 a day, and the Union disputed the adequa- cy of these payments. At the arbitration involving Fish- er's access to Respondent's premises referred to, supra, held on May 27, this subject was discussed as well, and the chairman indicated that the employees were to be paid overtime rates for all hours worked in excess of 8 a day for the period in question and, shortly thereafter, these amounts were paid to the employees. Walasek testified that at the conclusion of the hearing before the impartial chairman on May 27, he issued a verbal determination of the subject of Schwartz' author- ity to audit Respondent's payroll register: He said that the Union had no right to go beyond the scope of the inquiry, that they have no business in the financial business of the Company, absolutely none, and that if there were any inquiries that were going to be made on whether the employees are paid their retroactive on the 10-hour workday—and that's where it all arose from—that the employee would have to make the claim and come to the Company first, and the Company ought to amelio- rate the claim, or, if the emloyees still had a ques- tion about it, the employee knew that what they had to do to get it ameliorated. IV. DISCUSSION AND ANALYSIS A. Credibility It is first necessary to discuss the credibility of the principal witnesses. I found Walasek to be clearly lack- ing in credibility; my observation of him during the ex- tended period of his testimony, as against my observation of some of the General Counsel's witnesses, convinces me that, generally, he was not testifying truthfully. His version of the facts was often highly improbable; for ex- ample, his testimony that he had no knowledge of the decertification movement is reminiscent of the expres- sion: "Hear No Evil, See No Evil, Speak No Evil." With all the decertification talk among the employees, the no- tices posted on the bulletin board, and the notices at- tached to the timecards, it is all the more unbelievable considering that he is obviously a knowledgeable and ex- perienced businessman whose own testimony is that: "I know what goes on in my shop." In addition, it strains ones credulity to believe his testimony of the events of March 7; it appears to me that his testimony that he left the premises shortly before 6 p.m. was fabricated so that it would appear that he had no knowledge of the 6 p.m. meeting that day. To reach that desired conclusion, how- ever, he testified that Fisher knocked on the door only a few minutes. However, Felton's testimony of the follow- ing day's events and my reading of a prior Board case involving Fisher establish that Fisher is more persistent than that. In addition, in effect, Walasek testified that he buried his head in the newspaper while Fisher was bang- ing on the door; it apparently was the only way that he could establish that he observed nothing unusual occur- ring in the office at the time. I simply could not believe that after rushing upstairs to prevent Fisher from gaining access to his premises, he then buried his head in the newspaper and did not observe anything while seated at 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the dias. In addition, he was constantly sparring with counsel for the General Counsel and counsel for the Charging Party, and evasive in his answers to their ques- tions, when their questions did not require such a cau- tious attitude; for example, when asked if there was a dis- pute regarding the overtime pay paid to the employees pursuant to the impartial chairman's December 1982 award, his answer was "not on our part." All of these facts (and not Walasek's conviction in 1975 for obstruc- tion of justice and conspiracy for destroying company records after being advised that those records had been subpoenaed by a Federal grand jury) convince me that Walasek was not a credible witness and his testimony will, therefore, generally not be credited. B. Supervisory and Agency Status 1. McGuire Although admitting that McGuire is not a supervisor under the Act, the General Counsel alleges that she is an agent of Respondent regarding her decertification activi- ties because of the "circumstances" here, principally her free use of the conference room and office facilities in furtherance of the decertification movement, and the fact that she was paid for the time spent at the decertification meeting on June 7. However, this freedom around the office and conference room may have been due to the nature of her work as a service observer. On the other hand, the circumstances surrounding McGuire's return to Respondent's employ can certainly be described as suspi- cious and fortuitous for Respondent. She had previously been employed by Respondent until about 1976 at an $18,000 yearly salary, and her dislike of unions, in gener- al, and Fisher, in particular, was well known to Walasek. She returned to Respondent's employ in January, about 2 months prior to the open period for filing a petition; in addition, this was about a month after the impartial chairman had upheld the Union's challenge to Respond- ent's unilateral implementation of the 4-day workweek, a subject Respondent felt strongly about. When she re- turned in January she worked an average of 16 hours a week and was paid $4.05 an hour. That is a gross pay of $64 a week. Driving from Brooklyn to Respondent's fa- cility (as she testified she did) approximately twice a week, and parking in the area would leave her a net amount in the area of $30 a week. All these facts bring her true motivation into question, especially as she became the leader of the decertification movement short- ly after commencing work with Respondent. The credi- ble testimony of the General Counsel's witnesses is that at the time of McGuire's return there was no griping among the employees about the Union, and I credit this over McGuire's testimony that at this time there was "a lot of talk" among the employees regarding their dissatis- faction with the Union. Another element of suspicion in- herent in McGuire's testimony involved the lottery the employees used to pay Anker's fee. According to her testimony, at the March 7 meeting the employees decid- ed that they would have a lottery to raise money in order to compensate Anker for his services. Anker re- ceived the first payment on his fee by a money order, dated March 15, in the amount of $400. According to McGuire's testimony, a friend printed approximately 3500, two-part, tear-off tickets (with the appropriate printing) for $20. Also difficult to believe is McGuire's testimony that these tickets were printed and in excess of $400 was collected from the sale of these tickets, all within a week. Further supporting the suspicion that McGuire was rehired by Reationdent for the express pur- pose of leading an antiunion movement is provided by the testimony of Eleanor Wilson, who testified credibly that from mid-1982 through the end of 1982 Wa/asek asked her assistance in getting rid of the Union and fmd- ing other employees who would join her in that pursuit. For all these reasons, plus my observation of McGuire on the witness stand, I am convinced that she was gener- ally not a credible witness. These suspicions and doubts about McGuire's credibility, and Respondent's motiva- tion in reemploying her, however, are not enough to create an agency relationship. The General Counsel must, affirmatively, establish her agency status. I recog- nize that this is a difficult burden, especially with a situa- tion such as is present here, but it is the obligation of the General Counsel to establish McGuire's agency status, and she has not done so. I, therefore, find that McGuire is not an agent of Respondent. Having found that McGuire was not an agent of Respondent, I find it un- necessary to make credibility findings regarding the March 7 and 8 meetings. 2. Brown and Gaillard It is well settled that "the burden is on the party alleg- ing supervisory status to prove that it, in fact exists." Commercial Movers, 240 NLRB 288, 290 (1979). For an employee to be a supervisor within the meaning of the Act he need possess only one of the powers enumerated in Section 2(110 of the Act. Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949). It is clear that Brown and Gaillard have no authority to hire or fire employees, or to take any disciplinary action against them, or to effec- tively recommend such action. The sole issue is whether Brown and Gaillard responsibly direct the work of the employees, in a nonroutine manner. The testimony of Respondent's witnesses was basically that prior to 1981 Brown and Gaillard were the supervisors at their respec- tive offices, and after the consolidation they were super- visors until mid-1982, when Watts or Slattery became the supervisor and they became lead operators; after that time, they served as "funnels" for Watts: That is just how they described their jobs: answering phones like the other operators as well as sitting on the dias (although I find that they generally sit at the dias between 4 and 6 hours a day), transmitting all requests that they received from the operators to Watts for a decision. All this, plus the fact that they are rrienibers of the Union, are paid pursuant to the contract, and their pay is not substantial- ly higher than the other operators, considering the length of their employment with Respondent, indicates that they lack supervisory status as defined in Section 2(11) of the Act. It is clear, however, that they exercise independent judgment in assigning operators to certain seats on the cells; some operators are more capable than others and some positions are more difficult than others SHERWOOD DIVERSIFIED SERVICES 365 and Brown and Gaillard use their experience to match the two. In addition, they direct the operators when they should take their lunchbreak, but this does not appear to require the use of independent judgment. The credible testimony of other witnesses, however, convinces me that Brown and Gaillard can, at times, approve overtime, vacation dates, and operators' requests to leave work early on their own. In this regard, it should again be noted that Respondent employs approximately 56 opera- tors on 3 shifts on a 24-hour-a-day basis. The only admit- ted supervisors and agents are Watts, Walasek (who spends less than half his time at the New York facility), and Tannenholz who, it appears, does not direct the work of the operators. I cannot believe that this oper- ation can be supervised by one person most of the time. In determining the issue of supervisory status, one factor that the Board considers (after the express ones dictated by the language of Section 2(11) of the Act) is whether a finding either way would create a disproportionate ratio of employee to supervisor, Lawrence Rigging, 202 NLRB 1094 (1973); New Jersey Famous Amos Chocolate Chap Cookie Corp., 236 NLRB 1093 (1978); Formco, Inc., 245 NLRB 127 (1979); and Washington Beef Producers, 264 NLRB 1163 (1982). A fmding that Brown and Gaillard were not supervisors would create a proportion of em- ployees to supervisors of 56 to 1; although it is true that Walasek spends some time at the New York facility, it is also true that both he and Watts have many administra- tive duties to care for, in addition to the supervision of the employees. It is for this reason, and the fact that Brown and Gaillard do responsibly direct the work of the employees, that I find that they are supervisors within the meaning of Section 2(11) of the Act. Having found that they are supervisors, the next ques- tion is whether Respondent is responsible for their ac- tions. In Montgomery Ward & Co., 115 NLRB 645, 647 (1956), the Board ruled on statements made by an em- ployee who is both a supervisor within the meaning of the Act, and a member of the Union with the other em- ployees; these individuals are not considered by employees to be the repre- sentatives of management, but of a fellow employee. Thus, they do not tend to intimidate employees. For that reason, the Board has generally refused to hold an employer responsible for the antiunion conduct of a supervisor included in the unit, in the absence of evidence that the employer encouraged, author- ized or ratified the supervisor's activities or acted in such a manner as to lead employees reasonably to believe that the supervisor was acting for and on behalf of management. In Bennington Iron Works, 267 NLRB 1285 (1983), the Board reaffirmed this rule. When this rule is applied to the instant matter, it is apparent that there is no direct evidence that either Watts or Walasek encouraged, au- thorized, or ratified the few incidents Brown and Gail- lard were alleged to have been involved in. Although I find that Walasek was aware of (and participated in) the decertification movement and that the antiunion employ- ees were given free reign over Respondent's facilities and eqüip'ment,- and that Brown and Gaillard were gener- ally seen by the operators as part of management that is not enough to establish responsibility on Respondent's part for Brown and Gaillard's statements, under Mont- gomery Ward and Bennington, supra; there must be evi- dence that Respondent encouraged, authorized, or rati- fied their actions. There is insufficient evidence of such actions in the few situations involving Brown and Gail- lard, and I therefore find that Respondent is not respon- sible for the antiunion statements attributed to Brown and Gaillard. 3. Slattery As stated, supra, it is the burden of the General Coun- sel to establish that an employee is a supervisor within the meaning of the Act. Whether Slattery became a non- supervisory employee in November 1982 or after March 1983 is a stibject that even credible witnesses may not be very competent to testify about, especially since her sub- sequent position (collections and customer service) placed her primarily in the office. For this reason, and the reason that Fergeson, whom I found to be a credible, although obviously a nervous, witness, testified that Slat- tery's position was changed in October or November 1982, I find insufficient evidence to establish that Slattery was a supervisor within the meaning of the Act at the time in question. C. Walasek's Involvement Remaining, therefore, is whether Walasek's involve- ment in the decertification movement so tainted it as to destroy Respondent's good-faith doubt of the Union's majority status. I have previously found that Walasek was not, generally, a credible witness; in most of the situ- ations discussed below I have discredited him. Although counsel for Respondent, in its well-written brief, points to contradictions in the testimony of some of the General Counsel's witnesses, I am still convinced that they were, generally, more frank and open in their testimony than was Walasek. As I found Eleanor Wilson to be a credible witness, I credit her testimony that as she was leaving work on March 4, Walasek asked her why she was not going to attend the meeting that evening; she had previously in- formed Slattery that she was not going to attend the meeting and she heard Slattery inform Walasek over the intercom of her refusal to attend the meeting. Walasek was here treading in an area that was forbidden to him (as he admitted to Wilson) and his question clearly vio- lated Section 8(a)(1) of the Act. Walasek's previous dis- cussions with Wilson left no doubt of his negative feeling for the Union and his hope that the employees would arise together and decertify the Union. With such a background, Walasek's question to Wilson clearly was coercive. Mark I Tune-Up Centers, 256 NLRB 898 (1981). Walasek's statements to Eleanor Wilson that the employees could not discuss the Union at all on his premises at any time also violates Section 8(a)(1), Our Way, Inc., 268 NLRB 394 (1983), as does his statement to her that he thought she was his friend, and yet she did not sign the petition; this clearly has a reasonable tenden- 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cy to coerce. I fmd that Walasek's interrogation of Dobbs (who I credit over Walasek) also violated Section 8(a)(1) of the Act; it served no legitimate purpose and had a reasonable tendency to interfere with rights guar- anteed by the Act, Rossmore House, 269 NLRB 1176 (1984), although in this situation it had no such effect. In addition, Walasek's statement to Dobbs that they "could have" Blue Cross, Blue Shield and a profit-sharing plan was a promise of benefit in violation of Section 8(a)(1) of the Act. I found Yvette Wilson, as well as Applewhite, to be extremely credible and articulate witnesses and, without hesitation, credit their testimony over that of Walasek. I therefore find that his conversation with her (in Watts' presence) of March 4 violated Section 8(a)(1) of the Act. He first put her on the defensive by alleging that she was telling other employees that he was attempting to get rid of the Union and then threatened her with discharge (which I fmd was) due to her support for the Union, and then interrogated her about the decertification meeting; both of these actions I find in violation of Section 8(a)(1) of the Act. Next for consideration is Walasek's discussion with Debby King. Although clearly hostile to Respondent in her testimony, she appeared to be a reasonably credible witness who was, at least, more believable than Walasek. In addition, when an overall view is taken of this matter, King's testimony appears quite reasonable. Walasek was active in supporting employees to join the antiunion movement and sign the petition; Debby King needed a favor (a job for her husband); Walasek wanted a promise in exchange for the favor—that she sign the petition to decertify the Union. I, therefore, find that Respondent violated Section 8(a)(1) of the Act by encouraging King to sign the decertification petition and by promising her increased benefits if the decertification petition were suc- cessful. Bennington, supra. George King was extremely hostile to Respondent while on the stand; although that, alone, is not grounds for discrediting his testimony, his testimony was so con- fused and contradictory that I do not credit his testimo- ny regarding his conversations with Walasek. Regarding Gunn, counsel for Respondent calls atten- tion to the discrepancy between her testimony and the contents of her Board affidavit; she testified about Wala- sek's questions of her regarding her feelings toward the Union and her knowledge of the decertification petition. Her affidavit states that Walasek never spoke to her about the Union. Her explanation that when she gave the affidavit to the Board agent she was observing Walasek's request to keep their conversation confidential appears. reasonable to me, especially as Gunn appeared to be an otherwise very frank and credible witness. As I credit Gunn over Walasek, I find that his interrogation of her feelings of the Union and the decertification movement violated Section 8(a)(1) of the Act. Bennington, supra. D. The Refusal to Bargain and the Strike The principal issue then is whether the above-de- scribed violations by Respondent destroy Respondent's alleged good-faith doubt of the Union's majority status. It is well settled that a certified union, on expiration of a year following certification, enjoys a rebuttable presump- tion that its majority status continues. An employer may rebut this presumption by demonstrating that its refusal to bargain was predicated on a good-faith and reason- ably-grounded doubt of the Union's majority status, Towne Plaza Hotel, 258 NLRB 69 (1981). However, this alleged good-faith doubt must not be the result of the employer's unfair labor practices. Texaco, Inc. v. NLRB, 722 F.2d 1226 (5th Cir. 1984). In GAF Corp., 195 NLRB 169 (1972), the Board stated that the mere filing of a de- certification does not, alone, provide sufficient grounds for doubting an incumbent union's majority status. In Celanese Corp. of America, 95 NLRB 664 at 673 (1951), the Board set forth the principles under which an employer could question a union's majority status: And secondly, the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the em- ployer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union. In Vernon Mfg. Co., 214 NLRB 285 (1974), the Board found that Respondent violated Section 8(a)(1) because a supervisor interrogated and threatened an employee re- garding a decertification petition, but found that this "single instance" was "not sufficient to taint the entire solicitation" and permitted the employer to raise the good-faith doubt issue. On the other hand, in Dow Chem- ical Co., 217 NLRB 376 (1975), two violations of Section 8(a)(1) were found; one supervisor solicited an employee to sign a card to decertify the union and subsequently threatened him with discharge for refusing to sign the card. In addition another supervisor informed an employ- ee that the employees were better off decertifying the union and going along with the employer's salary plan. The administrative law judge (as affirmed by the Board) found that the employer could not defend based on A good-faith doubt of the Union's majority status because: This conduct not only established Respondent im- planted the idea with employees in the bargaining unit of decertifying the union, but it actively en- gaged in the decertification process by soliciting an employee under threat of discharge to sign a card to decertify the union. In Guerdon Industries, 218 NLRB 658 (1975), the Board found that Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally announcing and imple- menting an incentive wage plan without prior consulta- tion with the union, and by threatening certain of its em- ployees that this incentive plan would be lost if the union remained in the picture and negotiated a wage increase. The Board found that these violations were "flagrant" and "egregious" and because "they directly affect a large segment of the bargaining unit," Respondent's withdraw- al of recognition was unlawful. The Board, citing Celan- ese, supra, stated that it was not simply the commission of the unfair labor practices that dictated that finding, SHERWOOD DIVERSIFIED SERVICES 367 but rather the serious nature of the violations under all the circumstances. In GAF Corp., supra, cited by counsel for Respondent in its brief, the Board found that the sole 8(a)(1) violation (suggesting the establishment of a plant committee to re- place the union) did not destroy the employer's good- faith doubt: "It does not appear to have affected the Union's majority status, caused employee disaffection or improperly affected the bargaining relationship itself." In Hemet Casting Co., 260 NLRB 437 (1982), also cited by counsel for Respondent, the Board found that the em- ployer committed no unfair labor practices and had a valid good-faith doubt of the Union's majority status. On the basis of the above, I find that Respondent's al- leged good-faith doubt was tainted by its unfair labor practices mad, therefore, cannot serve as a valid reason for the withdrawal of recognition of the Union. I have found that Respondent can only be charged with the ac- tions engaged in by Walasek; however, those actions, as set forth, supra, are not minimal, as occurred in Vernon and GAF, supra; rather they were more "flagrant" and "egregious," as set forth in Guerdon and the other cases cited, supra. Respondent should not be allowed to with- draw recognition of the Union based on its alleged good- faith doubt of the Union's majority status, after Walasek, its vice president, had engaged in numerous 8(a)(1) viola- tions aimed at causing disaffection from the Union, Cel- anese, supra, and I therefore find that its withdrawal of recognition violated Section 8(a)(5) of the Act. On August 16, the Union held a series of meetings with its members to determine whether they should strike or remain on the job. At these meetings the alter- natives were discussed; Fisher told the employees that nobody from Respondent would negotiate with him and it was up to the employees to decide whether they wanted to strike or remain at work pending the results of the instant hearing; Applewhite suggested that they strike, and those present agreed that they would strike Respondent; the strike commenced the following morn- ing and continued, at least, through the time of the hear- ing. All the employees who testified on the subject testi- fied that they struck because Respondent refused to ne- gotiate with the Union and/or they had been working without a contract since June 1. The strike began August 17. On the same day, Respondent sent the following tele- gram to its striking employees: You failed to report to work today we believe as a consequence of an economic strike. Please be ad- vised that unless you report to work on your next scheduled shift you will be permanently replaced. En order for a strike to be an unfair labor practice strike, as compared to an economic strike, two findings are required; first, it is necessary to find that Respondent engaged in unfair labor practice(s), and, second, that there was a causal connection (or causal relationship) be- tween the unfair labor practice(s) and the strike. Typoser- vice Corp., 203 NLRB 1180 (1973); Certified Corp., 241 NLRB 369 (1979); Burlington Homes, 246 NLRB 1029 (1979). The rule is basically the same regardless of whether an economic strike was converted to an unfair labor practice strike. Robbins Co., 233 NLRB 549 (1977). I have/, found that Respondent's refusal to bar- . . gam with the Union was in violation of Section 8(a)(5) of the Act. The uncontradicted credible testimony of the employees is that at the union meeting on August 16, the employees decided to strike because of Respondent's re- fusal to bargain with the Union and because they had been working without a contract since June 1. The causal relationship having been established, I find that the strike that commenced on August 17 was an unfair labor practice strike. As the striking employees are unfair labor practice strikers, Respondent cannot permanently replace them, or threaten to do so. Respondent's tele- gram to the employees threatened them with being per- manently replaced and therefore violated Section 8(a)(1) of the Act. Tommy's Spanish Foods, 187 NLRB 235 (1970); Laredo Coca Cola Bottling Co., 241 NLRB 167 (1979). E. The Denial of Access to Fisher on March 7 and 8 Fisher was, admittedly, denied access to Respondent's premises on March 7 and 8; he arrived sometime be- tween 4 and 6 p.m. on each of these days. The contract gives the Union visitation rights to the premises "during business hours provided it does not interfere with the op- eration of the office." Although Fisher's activities were disruptive on March 8, there is no credible evidence that Fisher had previously been disruptive When Walasek, on March 7, saw him in the building lobby and immediately returned to the premises and locked the door behind him. I find that the reason he did this was his desire to avoid having Fisher on the premises, knowing that the meeting with Anker and the employees was to take place on the premises shortly. Regardless, counsel for Re- spondent alleges that I should dismiss this allegation and defer to the arbitrator's award dated June 3 under the recent Board decision, Olin Corp., 268 NLRB 573 (1984). In Olin the Board decided that they will defer to an arbi- trator's award if the contract issue is factually parallel to the unfair labor practice issue and the arbitrator was pre- sented generally with the facts relevant to resolving the unfair labor practice. If these standards are satisfied, the award will be deferred to unless it is "palpably wrong": "unless the arbitrator's decision is not susceptible to an interpretation consistent with the Act, we will defer." The Board also determined that the burden of establish- ing that the above standards have not been met will be on the party seeking to have the Board reject deferral. The General Counsel, in its brief, states: The Board had consistently maintained its position that it would not defer to arbitration in situations where, as here, the Respondent's conduct consti- tutes a rejection of the principals of collective bar- gaining. The Board's decision in United Technologies Corporation [268 NLRB 557] reaffirms its intention to continue to be guided by this principle. Without agreeing with the General Counsel's interpre- tation of United Technologies, supra, I fmd no such excep- tion in the Board's Olin decision. The question, therefore, is whether the General Counsel has satisfied her burden, 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as set forth in Olin. The contractual and unfair labor practice issues are factually parallel—Fisher was ex- cluded from the premises—and the arbitrator was pre- sented, generally, with the facts relevant to resolving the unfair labor practice—Fisher's exclusion and the contents of the contract. As these standards were satisfied, has the General Counsel established that the arbitrator's award was "palpably wrong?" I think not. Clearly, the arbitra- tor's award is a compromise—the union representatives have the aboslute right of visitation prior to 5 p.m., but all visits after 5 p.m. require notification to Respondent prior to 5 p.m. on the same day—whereas the Board would simply decide whether Respondent's actions vio- lated Section 8(a)(5) of the Act. Although the Board, in 8(a)(3) deferral cases does not approye of compromise awards, Sea-Land Service, 240 NLRB 1146 (1979); Triple A Machine Shop, 245 NLRB 136 (1979), the General Counsel has cited me to no refusal-to-bargain deferral cases in which the Board has found such awards to be repugnant to the Act, or palpably wrong. I therefore find that the General Counsel had not sustained her burden, and I therefore defer to the arbitrator's award of June 3 and dismiss this 8(a)(5) allegation. F. Refusal to Supply Information The information that Schwartz requested, and was denied, was clearly relevant to the Union as the collec- tive-bargaining representative of the employees; there was some dispute (even, according to Walasek's testimo- ny, on the Union's part) regarding the amount of back- pay Respondent paid its employees pursuant to the arbi- trator's December 16, 1982 award. The Union was enti- tled to see Respondent's payroll register in order to properly determine whether the contract and the award were complied with. Respondent, again, alleges that the Board should dismiss this allegation and defer to the ar- bitrator's award. It appears that the arbitrator issued no written award on this issue, and the only evidence of the oral determination is based on Walasek's testimony. Al- though I have generally discredited Walasek, his testimo- ny in this regard was uncontradicted. In addition, the General Counsel has not sustained her burden to estab- lish that this case should not be deferred to the arbitra- tor's award under Olin, supra; I therefore will defer and dismiss this 8(a)(5) allegation. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3, The strike engaged in by the employees, commenc- ing August 17, 1983, was an unfair labor practice strike. 4. Respondent violated Section 8(a)(1) of the Act by: (a) Interrogating its employees regarding their attend- ance at, or knowledge of, meetings to discuss the decerti- fication of the Union. (b) Prohibiting its employees from discussing the Union on Respondent's premises at any time. (c) Restraining and coercing its employees by telling them that they were not a friend of Respondent because they did not support the decertification movement. (d) Interrogating its employees regarding their support for the Union. (e) Promising benefits to its employees to solicit them to withdraw their Support for the Union and to sign and support the petition to decertify the Union. (f) Threatening to discharge its employees due to their support for the Union. (g) Restraining and coercing its employees by encour- aging them to sign the petition to decertify the Union. (h) Threatening its employees that it would perma- nently replace them because they engaged in an unfair labor practice strike. 5. Respondent violated Section 8(a)(1) and (5) of the Act by ceasing its recognition of the Union and by refus- ing to meet and bargain with the Union. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and take certain at- firmative action designed to effectuate the policies of the Act. In addition, I shall recommend that, on request, Re- spondent be ordered to meet and bargain in good faith with the Union and, if an understanding is reached, to embody such understanding in a written agreement. I shall also order that if and when the striking employees make an unconditional offer to return to work, Respond- ent shall offer them reinstatement to their former, or sub- stantially similar, positions of employment without preju- dice to their seniority or other rights and privileges pre- viously enjoyed, as I have found that they are unfair labor practice strikers. [Recommended Order omitted from publication.] Mary Ann Mills and Margaret M. Dietz, Esqs., for the General Counsel. Fred Klein, Esq. (Sehan, Klein & Zelman), for the Re- spondent. Jon Quint, Esq. (Markewich, Friedman & Markewich), for the Charging Party. SUPPLEMENTAL DECISION JOEL P. Bunownz, Administrative Law Judge. On 9 July 1984 I issued a decision in the above-entitled matter finding that Federated Answering Service, a Division of Sherwood Diversified Services, Inc. (Respondent), corn- nutted numerous violations of Section 8(a)(1) of the Act, and violated Section 8(a)(1) and (5) of the Act by ceas- ing its recognition of United Telephone Answering & Communication Service Union, Local 780 (the Union), and by refusing to meet and bargain with the Union. Certain allegations of the complaint were dismissed. By Order Remanding, dated 10 February 1986, the Board ordered this matter remanded to me to make find- ings, conclusions, and credibility resolutions, based on the existing record, regarding Marilyn McGuire's con- SHERWOOD DIVERSIFIED SERVICES 369 versation of 7 March 1983 1 with Linda McKiever, and McGuire's 3 March conversation with Eleanor Wilson. The Board also ordered that I decide whether McGuire acted as Respondent's agent in the decertification move- ment in light of these fmdings and the finding in the 9 July 1984 decision in which I generally discredited Paul Walasek's testimony and therefore credited the testimony of Debby King regarding Walasek's conversation with her in late February or early March 1983 regarding the decertification movement. The credibility determination ordered by the Board is not a difficult one; I found McKiever and Wilson to be credible witnesses, who appeared to be testifying in an honest and frank manner regardless of their animus toward Respondent due to the strike (which I found to be an unfair labor practice strike). In my prior decision, I credit the testimony of the General Counsel's witnesses over McGuire's testimony regarding the employees' al- leged antiunion sentiment, and also found "suspicious and fortuitous for Respondent" McGuire's return to Re- spondent's employ shortly prior to the Board's open period for filing a petition, considering her widely known dislike for the Union and its president, I. Jerry Fisher. I, therefore, credit the testimony of McKiever and Wilson over that of McGuire regarding their 3 and 7 March conversations with McGuire. It is, therefore, necessary to decide whether these con- versations, together with Walasek's conversation with King, and the other record evidence, establish that McGuire acted as Respondent's agent here. America Lumber Sales, 229 NLRB 414, 420 (1977), stated: "For an employer to be responsible for the conduct of nonsu- pervisory personnel which interferes with the rights of employees under the Act, there need not be express au- thorization for the acts committed." In Machinists Lodge 35 v. NLRB, 311 U.S. 72, 80 (1940), the Supreme Court stated: "The existence of that interference must be deter- mined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible." In Com- munity Cash Stores, 238 NLRB 265 (1978), the Board stated that the critical issue in this determination is whether, under all the circumstances, the employees would reasonably believe that the individual involved was reflecting company policy and speaking and acting for management. Considering all the factors here, I fmd that during early 1983, Respondent's employees could reasonably believe that McGuire was reflecting Respond- ent's policy and speaking and acting for management. During early 1983, McGuire spent most of her time at the facility in the office, rather than the board room where the operators work; Vvhile in the office, the super- visors and agents of Respondent sent employees to speak to her; about 3 March, Walasek sent Wilson to speak to McGuire in the office; about 9 March Barbara Gaillard sent Wilson to the office of Janice Watts; on her way she was stopped by McGuire, who asked her to sign the pe- Unlesa otherwise specified, all dates refer to 1983. tition to remove the Union. On 7 March, McGuire asked Rose Frazier to speak with her in Respondent's office and, with Watts sitting nearby at her desk, McGuire told Frazier that Respondent wanted to get rid of the Union and could give the employees a better deal. On 7 March, Gaillard told McKiever that Watts wanted to speak to her in the office. While Watts and McKiever were speaking, McGuire walked by, and Watts asked McKiever if she remembered McGuire and told her that McGuire wished to speak with her; McGuire asked her to sign the petition to remove the Union. McKiever said that she would think about it. About a half hour later McKiever (while in the board room) received a call from Gaillard, who also told her that it was in her best interest to sign the petition to remove the Union. At the conclusion of this conversation Gaillard told McKiever to go into the conference room to speak to McGuire, which she did. On 8 March, King was told by either El- eanor Brown or Gaillard that Watts wished to speak to her in the conference room; when she arrived there McGuire, not Watts, was present and McGuire asked her to sign the petition to get rid of the Union. In about early March, Brown or Gaillard sent Sandra Gnim to speak to McGuire in the conference room; McGuire asked her to sign the petition. On the following day Gaillard again sent Gunn to the conference room to speak to McGuire. In addition to this parade of employees being sent to the Office and conference room (an area that the opera- tors did not normally frequent) to speak to McGuire, there is other evidence supporting a finding that the em- ployees could reasonably believe that McGuire was speaking and acting for Respondent. The 7 and 8 March meetings were conducted in the conference room; to be- lieve Walasek's and McGuire's testimony that Walasek gave McGuire permission to conduct the evening meet- ings in the conference room without asking or knowing the purpose of these meetings is to close ones eyes from reality, especially considering Walasek's testimony re- garding the events of 7 March and my findings (dis- cussed under "Credibility" in the decision). In addition, Respondent's timecards establish that McGuire was paid for working until 7 p.m. on 7 March, when the meeting began at 6 p.m. The notices that announced these meet- ings were typed and posted on Respondent's premises. In addition, while Walasek was attempting to convince Debby King to attend the meetings, he told her that McGuire would be speaking to her more about it. Final- ly, in McGuire's conversation with Wilson of 3 March (discussed, supra) she told her that Wilson owed it to Wala.sek to help him because he had helped Wilson when she was bankrupt; this appears to be a subject that McGuire would be aware of only if Walasek or one of Respondent's other agents, informed her of it. For these reasons, I find these facts Would lead Respondent's em- ployees to reasonably believe that McGuire acted and spoke for Respondent regarding the decertification movement, and McGuire was, therefore, an agent of Re- spondent.