The Salvation Army Williams Memorial Residence

944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Salvation Army Williams Memorial Residence and Local 517-S, affiliated with Production, Service and Sales District Council , Hotel Em- ployees and Restaurant Employees, AFL-CIO, CLC Cases 2-CA-19678, 2-CA-19753, and 2- RC-19504 May 9, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 24, 1987, Administrative Law Judge Robert M Schwarzbart issued the attached decision The General Counsel and the Respondent each filed exceptions and supporting and reply briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 as modified and to adopt the recom- mended Order as modified 3 The judge found that the Respondent engaged in widespread and extensive violations of Section 8(a)(1) of the Act that occurred during and after the Union's election campaign at the Williams Resi dence We have reviewed the Respondent's excep tions to these findings and find them lacking merit except with respect to the two 8(a)(1) allegations discussed below We also agree with the judge that the Respondent's unfair labor practices have made the holding of a free and fair second election un- likely, if not impossible, and that, therefore, a bar gaining order is warranted 4 Finally, we adopt the ' The Respondent has excepted to some of the judge s credibility find rags 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 2 We find it unnecessary to pass on the judge s comments regarding Machinists Local 1414 (Neufeld Porsche Audi) 270 NLRB 1330 (1984) in his discussion of the preelection campaign meetings the Respondent con ducted on May 23 and 24 1983 In adopting the judge s finding that the Respondent violated Sec 8(a)(1) of the Act through its attorneys questioning of employees Wal lace and Salomon Chairman Stephens does not rely on Johnnie s Poultry Co 146 NLRB 770 (1964) enf denied 344 F 2d 617 (8th Cir 1965) but finds that under all the circumstances the questioning was coercive a The judge inadvertently failed to include language in his notice re flecting certain provisions in his recommended Order Accordingly we will substitute a new notice The General Counsel has requested that as part of the remedy the Order include a visitatonal clause Under the circumstances of this case we find such a clause unnecessary See Cherokee Marine Terminal 287 NLRB 1080 (1988) 4 NLRB v Gissel Packing Co 395 U S 575 (1969) judge's findings that the Respondent did not, as al- leged, violate Section 8(a)(3) of the Act by dis charging two employees for their union activities 5 1 During the election campaign, the Respond- ent's administrator, Major Ralph Leidy, told the unit employees that the Union belonged to the Mafia The judge found, citing Southland Knitwear, 260 NLRB 642, 655 (1982), that this statement vio lated Section 8(a)(1) of the Act Contrary to the judge, we find that the Respondent's comment about the Union was protected by Section 8(c) of the Act and is similar to certain statements that the Board has found to be `privileged expressions of opinions which, however false or unsubstantiated, did not rise to the level of interference, restraint, or coercion prohibited by Section 8(a)(1) of the Act "6 Accordingly, this allegation of the com plaint is dismissed 2 The judge concluded that the Respondent vio- lated Section 8(a)(1) when Leidy told employee Michael Wallace, an open union supporter, that he knew about the union meeting that night and then implied that he expected Wallace would be there During the hearing, however, the Respondent was not afforded the opportunity to cross-examine Wal- lace regarding whether information on the time and place of union meetings was common knowl- edge throughout the plant The evidence that the Respondent was seeking to adduce on this point might well establish, if proven, a valid defense to the allegation 7 As the judge did not permit the Respondent to present evidence relevant to the dis- position of the issue, we find that the matter was not fully litigated and, accordingly we dismiss this allegation 3 The Respondent contends that there has been substantial turnover in its work force that should preclude a Glssel bargaining order During the hearing, the Respondent sought to introduce evi- dence demonstrating that 27 of the 72 employees who constituted the unit at the time of the election were no longer employed at the facility The judge sustained the General Counsel's objection to this evidence on relevance grounds Subsequent to the filing of its exceptions, the Respondent filed a motion with the Board seeking to reopen the record to present evidence on employee turnover 5 The General Counsel has excepted only to the dismissal of these 8(a)(3) allegations 6 See Camvac International 288 NLRB 816 (1988) quoting from North Kingstown Nursing Care Center 244 NLRB 54 65 (1979) Furthermore we find that the judge s reliance on Southland Knitwear above is misplaced here In that case the respondents owner and his family while telling employees that the union was from the Mafia and was no good also took away leaflets the union had given the employees and upped them up Thus the respondents conduct in Southland Knit wear clearly went beyond simply expressing an opinion about the union 7 See e g La Reina Inc 279 NLRB 791 799-800 (1986) 293 NLRB No 118 SALVATION ARMY RESIDENCE 945 In this regard, the Respondent submitted the affida vit of Major Leidy, who states, inter alga, that "[of] the seventy two people employed by the Salvation Army at the [Williams] Residence in March of 1983 [the time of the request and refusal to bar- gain], forty six are no longer employed by the Sal- vation Army " Leidy's affidavit further alleges that two additional unit employees have transferred to different departments, and that the employee main- tenance department no longer exists and all mainte- nance work is now subcontracted out We deny the Respondent's motion to reopen the record because the evidence it seeks to introduce on changes in the composition of the bargaining unit would not require a different result See Sec- tion 102 48(d)(1) of the Board's Rules and Regula- tions The Board has specifically held that "the va- lidity of a bargaining order depends on an evalua- tion of the situation as of the time the unfair labor practices were committed "s Thus, the evi- dence the Respondent proffers regarding changes of this nature, as well as the passage of time, are irrelevant considerations when assessing the propri- ety of issuing a Gissel bargaining order 9 We are cognizant, however, that this proceeding arises in the Second Circuit in which the court repeatedly has considered these factors relevant to the deter mination of this issue 10 We therefore shall address in this case the significance of the evidence that the Respondent seeks to introduce For the reasons set forth below, we find that, even assuming the rel- evance and the accuracy of the information set out in the Respondent's motion, this evidence would not preclude an otherwise appropriate bargaining order 11 In so concluding, we stress that, as described above, the Respondent's unfair labor practices were serious and affected virtually the entire bargaining unit Although we will not presume that the Re spondent's misconduct will recur in a new election campaign, we cannot overlook certain factors that increase the likelihood of recidivist behavior First, the widespread nature of the misconduct and the participation of management from top to bottom show that the Respondent is deeply committed to its antiunion position, a commitment from which it is not likely to retreat It is also significant that, at 8 See Highland Plastics 256 NLRB 146 147 (1981) 8 See Bandag Inc 228 NLRB 1045 fn 1 (1977) and New Alaska De velopment Corp 180 NLRB 971 (1970) See generally NLRB v Williams burg Steel Products Co 369 U S 736 and cases cited at fn 16 (1962) 10 See e g NLRB v J Coty Messenger Service 763 F 2d 92 (1985) NLRB v Marion Rohr Corp 714 F 2d 228 (1983) 11 Member Johansen joins in denying the motion to reopen but finds it unnecessary to address the general relevance of turnover and passage of time He like his colleagues is satisfied that the evidence the Respondent offers to adduce would not alter the need for a bargaining order in this proceeding the time of the motion to reopen the record, Major Leidy still remained the top management official at the facility The continuing presence of Leidy, who committed many of the unfair labor practices found here, can serve only to reinforce in the minds of the employees the lingering effects of the Respond ent's violations Additionally, we note, with respect to the alleged turnover of employees, that a sub- stantial number of unit employees employed at the time of the unfair labor practices remain in the Re- spondent's employ As the Fifth Circuit has ob- served, "Practices may live on in the lore of the shop and continue to repress employee sentiment long after most, or even all, original participants have departed "12 Thus, the Respondent's unlawful conduct has created a strong possibility that the in- hibitive effects of the unfair labor practices remain and serves to render unlikely the holding of a fair election We also find it significant that the Respondent's misconduct persisted even after the election while the Union's objections were pending As the judge stated in his decision at 967 Leidy s statement to employees immediately after the election to the effect that they would get what was coming to them in wages and benefits, but that he could not yet discuss such matters be cause of the Union s continuing presence positioned the Respondent to gain an advantage in the event of a new election Thereafter, approximately 1 year later, one of the Respondent's attorneys did not fully comply with the requirements of Johnnie's Poultry Co, 146 NLRB 770 (1964), when he interviewed employees in preparation for the hearing in this case We also note that this attorney further violated Section 8(a)(1) of the Act by interrogating employees re- garding whether they had signed union cards, re- garding who had supplied the cards, and regarding the content of employee Michael Wallace's affida- vit to the Board We are not unmindful of the passage of time in this case However, as the Board and the courts have often emphasized, the passage of time is "re- grettable" but is not a sufficient basis for denying [a] bargaining order "13 In view of the serious mis conduct the Respondent has engaged in, and par- ticularly the threats of closure of the facility direct- ed at the entire unit, we are convinced that the co- ercive impact on the employees has not dissipated, and in any event we are convinced that the mis- 12 Bandag Inc 583 F 2d 765 772 (5th Cir 1978) cited in Pggly Wiggly v NLRB 705 F 2d 1537 1543 (11th Or 1983) 13 See e g Quality Aluminum Products 278 NLRB 338 340 (1986) enfd 813 F 2d 795 (6th Cir 1987) 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conduct is likely to recur To withhold a bargain- ing order in these circumstances, in effect, would reward the Respondent for its own wrongdoing 14 Thus, although these factors are irrelevant in our view, were we to consider them, we would not find either employee turnover or the passage of time significant here We therefore agree with the judge that the possi- bility of erasing the effects of the Respondent's unfair labor practices and of conducting a fair elec- tion by the use of traditional remedies is slight Re quiring the Respondent simply to refrain from such conduct will not eradicate the lingering effects of the violations Consequently, an election would not reliably reflect genuine uncoerced employee senti- ment In these circumstances, we find that the em- ployees' representation desires expressed here through authorization cards would, on balance, be better protected by our issuance of a bargaining order than by traditional remedies 4 Finally, the tally of ballots in the representa tion case shows 30 for and 34 against the Union, with 19 determinative challenged ballots We adopt, in the absence of exceptions, the judge's rec- ommendations that the challenges to the ballots of 12 clerical employees and of Frederick Manck be sustained and that the challenges to the ballots of Bart Burton, Teresa DuPont, Claude Hintzen, Florence Levy, Florence Roberts, and Jocelyne Castillon Theodore be overruled The judge, how ever, found that these six overruled ballots were not determinative of the election results It is clear, however, that these six ballots are determinative of the election We, therefore, shall order that they be opened and counted In addition, we shall further modify the recommended Order to provide that the Union is entitled to both a bargaining order and a certification of representative in the event a re vised tally of ballots shows that it won the elec- tion 15 If, however, the Union should lose the elec- tion based on the revised tally of ballots, the elec- tion shall be set aside and the bargaining order alone shall take effect ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, The Salvation Army Williams Memorial Residence, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 14 New Alaska Development Corp above at 972 16 See Great Atlantic & Pacific Tea Co 230 NLRB 766 767-768 (1977) 1 Delete paragraphs 1(h) and 10), and reletter the remaining paragraphs accordingly 2 Substitute the attached notice for that of the administrative law judge IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations not found here IT IS FURTHER ORDERED that the challenges to the ballots of Bart Burton, Teresa DuPont, Claude Hintzen, Florence Levy, Florence Roberts, and Jo- celyne Castillon Theodore having been overruled, they shall be opened and counted and a revised tally of ballots be issued and served on the parties If the tally shows a majority vote for the Union, then the Union shall be certified as representative in the above appropriate unit If the revised tally fails to show that the Union has received a majori- ty of the valid ballots counted , the election shall be set aside and the representation case dismissed APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten that if you select Local 517-S, affiliated with Production, Service and Sales District Council, Hotel Employees and Restaurant Employees, AFL-CIO, CLC as your bargaining representative we will close our Williams Memorial Residence WE WILL NOT imphedly threaten that if you select the above-named Union as your bargaining agent, then as we have done with other of our fa- cilities in the past, we will close the Williams Me- morial Residence, lay you off, and reassign the Residence building to one of our other ununionized programs WE WILL NOT threaten you that, if the above- named Union wins a representation election, we will take away your jobs by contracting out your work WE WILL NOT threaten you that, if the Union wins a representation election, employees em- ployed in your job classification will be laid off WE WILL NOT threaten you with loss of break- time and changes in work rules if you support the above named Union or any other labor organiza tion SALVATION ARMY RESIDENCE 947 WE WILL NOT tell you that if you support the above-named Union, or any other labor organiza- tion, bargaining will be futile WE WILL NOT promise you that, if the Union loses a representation election, employees em ployed in your job classification will receive pay increases WE WILL NOT solicit grievances from you and imply offers to adjust such grievances in order to induce you to abandon support for the Union WE WILL NOT threaten surveillance and unspeci- fied reprisals against employees who attend Nation- al Labor Relations Board representation hearings and/or who support the Union WE WILL NOT blame the Union for our refusal to grant requested pay increases and for our delay in discussing and implementing a new wage and bene- fits program for our employees WE WILL NOT coercively interrogate our em- ployees about their union activities, sympathies, de- sires, those of other employees, the contents of their affidavits given to the Board, and the Union's organizing campaign WE WILL NOT ask you to attempt to induce other employees to abandon their support for the above-named Union, or for any other labor organs zation WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and, on request, bargain with Local 517-S affiliated with Production, Serv ice and Sales District Council, Hotel Employees and Restaurant Employees, AFL-CIO, CLC as the exclusive representative of all our employees in the unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement The appropriate bargaining unit is All full-time and regular part time dietary, housekeeping, maintenance and laundry em- ployees employed by The Salvation Army Williams Memorial Residence at 720 West End Avenue, New York, New York, but excluding all other employees, clerical/reception em ployees, door persons, professional employees, guards and supervisors as defined in the Act THE SALVATION ARMY WILLIAMS MEMORIAL RESIDENCE Valerie E Brathwaite and Kent Hirozawa Esqs, for the General Counsel Ronald Kreismann and Carl A Schwarz Jr Esqs (Alfred G Fehu and Cheryl Sabin Esqs and Finley Kumble Wagner Heine Underberg Manley Myerson and Casey on the brief), of New York, New York, for the Re spondent i Bruce Cooper Esq (Dubhrer Haydon Straci and Victor), of New York, New York, for the Charging Party DECISION STATEMENT OF THE CASE ROBERT M SCHWARZBART, Administrative Law Judge These consolidated cases were heard in New York, New York, dunng 38 days between 27 February and December 1985,2 on complaints3 issued pursuant to charges4 filed by Local 517-S, affiliated with Produc tion, Service and Sales District Council, Hotel Employ ees and Restaurant Employees, AFL-CIO, CLC (the Union or HERE) b The second amended complaint, as further amended at the hearing, alleges that the Salvation Army Williams Memorial Residence, the Respondent, violated Section 8(a)(1), (3), and (5) of the Act and that a bargaining order should issue The Respondent, in its answer, denies the commission of unfair labor practices Pursuant to a petition filed by the Union in Case 2- RC-19504, a Decision and Direction of Election issued by the Regional Director for Region 2 on 29 April 1983,6 and the Board's 26 May denial of the Respond ent's request for review of same, a representation elec tion by secret ballot was conducted on 25 and 26 May among the employees of the Respondent in the found bargaining unit 7 The tally of ballots served on the par ties immediately following the election showed that of the approximately 86 eligible voters, 83 cast ballots, of which 30 were cast for the Union, 34 were cast against the Union and 19 ballots were challenged There were no void ballots, but the challenged ballots were sufficient in number to affect the results of the election The Union i Kenneth A Margolis Esq onginally also cocounsel for the Re spondent withdrew his appearance during the hearing 2 The hearing originally opened on 21 May 1984 before Administra tive Law Judge Stanley N Ohlbaum who conducted the proceeding during 12 days ending 26 July 1984 The consolidated proceeding was as signed to me after Judge Ohlbaum s untimely death and the heanng re sumed de novo on 27 February although the parties later stipulated that much of the record developed before Judge Ohlbaum be made a part of the record 3 The order consolidating Cases 2-CA-19678 and 2-CA-19753 was issued on 30 September 1983 while the order consolidating these cases with the hearing on objections and challenged ballots in Case 2-RC- 19504 was dated 5 January 1984 An amended consolidated complaint and a second amended consolidated complaint issued on 25 January and 15 May 1984 respectively 4 The charges in Cases 2-CA-19678 and 2-CA-19753 were filed on I June and 6 July 1983 respectively 6 The caption appears as amended sua sponte B All dates are within 1983 unless stated to be otherwise 7 The bargaining unit found appropriate in the Decision and Direction of Election is as follows All full time and regular part time dietary housekeeping mainte nance and laundry employees employed by The Salvation Army Williams Memorial Residence at 720 West End Avenue New York New York but excluding all other employees clencal/reception employees doorpersons professional employees guards and supervisors as defined in the Act 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD filed timely objections to conduct affecting the results of the election In their objections, the Union alleged that in the critical period before the elections the Respondent Employer, through one of its colonels, told employees at a meeting where attendance was mandatory that the Re spondent would close the residence if the Union won the election, that an officer of the Salvation Army showed employees a motion picture of a nursing home and in formed employees that the Salvation Army had closed that facility after a union had won an election there, and that, at another mandatonly attended employee meeting called within 24 hours of the start of the election, the same colonel told employees that if they voted for the Employer, the Army then would meet with them to work out their grievances On 5 January 1984 the Acting Regional Director issued his order that the objec tions to the election and the determinative challenges to ballots in Case 4-RC-19504 be resolved in consolidated hearing with Cases 2-CA-19678 and 2-CA-19753 Issues 1 Whether jurisdiction can be asserted over the Wil Hams Memorial Residence as a wholly owned facility of the Salvation Army, a religious institution and, if so, 2 Whether the Respondent, through its officers, attor neys, and supervisors,9 independently violated Section 8(a)(1) of the Act by (a) Telling employees that it would be futile for them to select the Union as their bargaining agent as the Re spondent would not agree to any of the Union s propos als during prospective bargaining sessions (b) Threatening employees, while showing them a film or slides depicting acts of violence, that such violence would occur if they selected the Union to represent them (c) Coercively interrogating employees concerning their communications with the Board and as to the testi mony such employees intended to offer during the hear ing (d) Threatening employees with unspecified reprisals if they selected the Union to represent them (e) Threatening employees at various times, individual ly and in groups, that it would close its residence if they continued to support the Union or if the Union won the election (f) Coercively interrogating employees concerning their union membership activities, and sympathies (g) Informing employees that they were being denied wage increases because of the Union s presence at the fa cility (h) Threatening employees with loss of wages because of their union activities 8 In Goodyear Tire & Rubber Co 138 NLRB 453 (1962) the Board de fined the critical period before an election as the interval from the date of the filling of the petition to the time of the election Conduct occurring during this period found to have interfered with the employees freedom of choice at the polls may be grounds for setting aside the election Ac cordingly in the present case the critical period is from 17 March when the petition was filed to 26 May the date the election was concluded 9 The Respondent has two types of supervisory personnel-commis sioned officers who are ordained clergymen and lay supervisors who report to the officers (1) Threatening employees with changes in work rules and with loss of break periods if they selected the Union to represent them 0) Promising employees that it would adjust griev ances to their satisfaction if they voted against the Union (k) Promising benefits to employees in order to induce them to abandon their support for the Union (1) Creating the impression among its employees that their union activities were under surveillance by the Re spondent (m) Threatening employees with discharge because of a belief that they had engaged in union activities (n) Threatening its employees that, if they chose a union as their bargaining representative and a contract containing a union security clause should thereafter result, the Respondent would discharge its employees for nonmembership under its union security clause even if the Respondent had reasonable cause to believe that union membership had been terminated for reasons other than the employees failure to pay uniformly required ini tiation fees and periodic dues (o) Threatening employees that should they select a union and seek to express views at union meetings in ac cordance with their rights under Federal law, they could be expelled or otherwise disciplined by that union 3 Whether the Respondent violated Section 8(a)(3) and (1) of the Act by discharging and refusing to rein state its employees, James N Gibbons and Clarence Greaves, because of their membership in support for and activities on behalf of the Union 4 Whether, in the context of the above alleged viola tions a bargaining order is warranted requiring the Re spondent to recognize and bargain with the Union 5 In the alternative whether the representation elec tion in Case 2-RC-19504 should be set aside and a new election be directed All parties were given full opportunity to participate to examine and cross examine witnesses, to introduce rel evant evidence and to file briefs Briefs filed by the General Counsel and the Respondent, have been careful ly considered On the entire record of this case and my observation of the witnesses and their demeanor, I make the follow ing FINDINGS OF FACT I JURISDICTION The Respondent admits and I find that it is a non profit, religious and charitable organization incorporated by a special act of the New York State Legislature to preach the gospel to disseminate Christian beliefs and to undertake spiritual moral and physical rehabilitation of needy people The Respondent operates a residential fa cility at 720 West End Avenue New York New York, the Williams Residence or the residence and annually derives gross revenues in excess of $500,000,10 and pur 10 Hispanic Federation for Development 284 NLRB 500 (1987) SALVATION ARMY RESIDENCE 949 chases and receives at the residence goods and materials valued in excess of $50,000 directly from firms located outside the State of New York Throughout these proceedings starting with the origi nal representation case consolidated the Respondent consistently has denied that it is an employer engaged in commerce under the Act and that the Board has jurisdic tion over its operations The Respondent argues that as in NLRB v Catholic Bishop of Chicago 11 Board jurisdic tion should not be extended over its operations as the Salvation Army s social service activities are an rote gral part of the Respondent's religious and spiritual mis sion as a court recognized religious organization and church The Respondent points out that it has established a wide variety of social programs designed to meet the needs of the young, the sick or infirm, the destitute and the elderly and that the Williams Residence which serves persons of mature age, is such a social program consistent with and necessary for the completion of its religious mission The essential findings of fact concerning the jurisdic tional issue were made in the Regional Directors Deci sion and Direction of Election in Case 2-RC-19504, issued 29 April 12 The Regional Director found that ju risdiction should be asserted notwithstanding the Catholic Bishop case The facility in question is a 16 story nonsectarian resi dence for persons 55 years or older who pay for the services provided Such services in addition to housing, can include either two or three cafeteria meals daily at the residents option and simple first aid from one of two nurses who work staggered shifts between 7 am and 11 p in No personal care, medical or nursing serv ices as such, are provided for the approximately 400 residents all of whom are ambulatory and in good health In distinguishing the Catholic Bishop case, the Regional Director found that although the residence was under the direction and control of a director who was a Salva tion Army officer and ordained minister and that reli gious services and bible classes were regularly conducted in the residences chapel, its operations essentially were secular Attendance at religious services and bible classes was completely voluntary membership in the Salvation Army was not a condition of residence or employment at the facility, and the Respondents employees neither were expected to nor did proselytize on behalf of the Salvation Army 13 Rather the employees in the relevant bargaining unit performed essentially commercial tasks such as cooking and serving food laundering cleaning and otherwise maintaining the facility, and serving the needs of the residents On 26 May 1983 the Board agreed with the Regional Directors conclusion that the Catholic Bishop case and other precedents in which Board jurisdiction was found inappropriate were not applicable to this nonsectarian, commercial enterprise Unlike Catholic Bishop the lay teachers propagated church doctnne in the classroom, it was concluded here that no entanglement in religious matters would result from application of the Board s ju risdiction to the Respondents Williams Residence An evenly-divided Board next ruled on this issue on 21 June 1984 when absent a majority it upheld Judge Ohlbaum s ruling that Section 102 67(f) of the Board s Rules and Regulations precluded relitigation of the juris dictional issue as review of the Decision and Direction of Election had been denied earlier in consolidated Case 2-RC-1950414 By mailgram, dated 29 June 1984, the Board denied the Respondents motion for reconsider ation of its 21 June order When this hearing opened de novo, before me, I denied the Respondents renewed motion to dismiss the complaint on jurisdictional grounds On 8 March 1985, the Board, ruling on the Respondents request for special leave to appeal, noted that the Respondents appeal was identical to that which had been denied earlier in the ab sence of a Board majority and found that since the hear ing was underway for a second time, this issue would be more appropriately resolved after a hearing on the merits Accordingly the Board majority denied the Re spondent s motion to stay the hearing but granted the Respondents request for special permission to appeal my order striking the jurisdictional issue from the Respond ent s answer to the complaint, reserving consideration of the issue for its review of exceptions to this decision 15 Since the Board s last review of this matter, the U S Court of Appeals First Circuit has found that the Board properly had exercised jurisdiction over a Salvation Army facility in NLRB v Salvation Army of Massachu setts 16 In Salvation Army of Massachusetts, the First Cir curt found that, unlike Catholic Bishop supra in which the teaching facility was expected to imbue and indoc innate the student body with the tenets of a religious faith, the program under consideration in Salvation 11 440 U S 490 (1978) In the Catholic Bishop case the U S Supreme Court seeking to avoid excessive entanglement with religion ruled that Congress had not intended that the Act give the Board jurisdiction over lay teachers in parochial high schools whose programs included re ligious instruction and extracurricular activities and where the purpose was to propagate a religious faith See Jewish Day School of Greater Wash ington 283 NLRB 757 (1987) Nazareth Regional High School 283 NLRB 763 (1987) in which this doctnne more recently was followed and Hanna Boys Center 284 NLRB 1080 (1987) where Board jurisdiction was exercised over certain nonteaching nonprofessional and nonreligious employees of a residential facility for boys operated by a Roman Catholic diocese 12 At the hearing before me the Respondent agreed that there had been no material factual changes at the residence affecting the junsdic tional issue since the hearing in the representation case and did not offer further evidence in support of its position concerning jurisdiction 19 About 15 to 20 percent of the residents were members of the Salva tion Army 14 Sec 102 67(1) of the Rules and Regulations in relevant part pro vides Denial of a request for review shall constitute an affirmance of the Regional Directors action which shall also preclude relitigatmg any such issues in any related subsequent unfair labor practice proceed mg is Chairman Dotson citing Ming Quong Children s Center 210 NLRB 899 (1974) dissented from the 8 March ruling and would have granted the Respondents motion 16 763 F 2d 1 (1st Cir 1985) enfg 271 NLRB 195 ( 1984) See also 247 NLRB 413 (1980) The First Circuits decision in the Salvation Army of Massachusetts case supra was quoted with approval by the U S Court of Appeals Eighth Circuit in Volunteers of America v NLRB 777 F 2d 1386 1389 (9th Cir 1985) 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Army of Massachusetts provided the children with care not education The court found that the Dorchester Day Care Center facility involves no religious instruction, indoctrination or extra curricular activities Neither the teachers, children nor parents are chosen for their religious affiliation Nor do they receive any religious train ing No significant condition of employment is imposed with an overt religious purpose in mind Also, just as in Denver Post,17 although there is evi dence that the Center fulfills the religious mission of the Salvation Army there is no evidence that the Center serves anything other than a secular funtion Although the teachers are aware of the reli gious purpose of the Salvation Army there is not that intertwining of religious doctrine and secular teaching which created the risks present in Catholic Bishop We are not faced with that infusion of reli gion" into programming which sets institutions such as parochial high schools apart from secular hign schools Denver Post 732 F 2d at 772 The risk of serious constitutional questions being being raised in these circumstances is simply too insignificant and speculative to be comparable to the risks present in Catholic Bishop See National Labor Relations Board v St Louis Christian Home, 663 F 2d 60, 64 (8th Cir 1981) Precedent thus calls for a finding of jurisdiction See e g Denver Post, 732 F 2d at 773, Tressler Lutheran Home for Children, 677 F 2d 302, 305 (3d Cir 1982) (Catholic Bishop distinguished on the ground that the main function of a nursing home is to give personal attention to the elderly and infirm ) St Louis Christian Home 663 F 2d at 65 (jurisdiction found over lay workers at home for battered and abused children because the function and operation of the home were no dif ferent from those of other secular childcare institu tions) Finally while noting that the Salvation Army is a well respected religious organization of genuine religious purpose, the court concluded that were jurisdiction not to be found under the circumstances of that case a for malistic means of circumventing Federal labor laws would be afforded to private care providers who articu late some religious affiliation and mission no matter how remote in effect from the social programs functions or operations a result intended neither by Catholic Bishop nor by Congress in legislating the Act Noting as found by the Regional Director that the Williams Residence is operated as a commercial housing facility for mature adults who pay for their room and 14 Denver Post of the National Society of the Volunteers of America v NLRB 732 F 2d 769 ( 10th Cir 1984) The Salvation Army of Massachu setts Court strongly relied on Denver Post in reaching its determination Although there were distinguishable factors the outcomes of both Salva non Army of Massachusetts and Denver Post were determined by the secu lar nature and functions of the operations in question board that the religious aspects of the Salvation Army, its ordained officers and optional religious practices do not relate to the work of the residences staff or its basic operations, the evidence is clear that the Williams Rest dence primarily serves a secular function In so conclud ing it further is noted that there is no requirement that the residences staff or quests be of a particular faith, that there was little need or opportunity for religious inter change between staff and residents and that the work performed by the unit employees-cooking, serving, housekeeping, laundering, and maintenance-were quite unrelated to religious observance or indoctrination Unlike the young students considered in Catholic Bishop Jewish Day School of Greater Washington supra, and Nazareth Regional High School, supra the mature ages of the residents here and the absence of a required curricu lum create little expectation that they would be suscepti ble, or even appreciably exposed, to religious training or influence In this sense, the present matter is even less similar to the Catholic Bishop case than was Salvation Army of Massachusetts, which the Board, in asserting ju risdiction found to be primarily concerned with custo dial care of young children, and only secondarily con cerned with education ' 18 Here the resident body is mature and there are no educational concerns I also would concur with Judge Ohlbaum that relitiga tion of this jurisdictional issue in a related unfair labor practice hearing after the Board had ruled on the same matter in the earlier representation case is precluded by Section 102 67(f) of the Rules and Regulations This is particularly applicable since the representation case in which the original jurisdictional ruling was made by consolidation, remains a part of this proceeding As the Board will not decline to assert jurisdiction over an employer solely because it is a nonprofit organs zation is exempt from income tax requirements under the Internal Revenue Code or because of its charitable function or worthy cause 19 it is appropriate for the above reasons to take jurisdiction in the present matter Accordingly I find that the Respondents Williams Me morial Residence is an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act and that assertion of Board jurisdiction will effectu ate the purposes and policies of the Act II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act 18 247 NLRB 413 (1980) Exercise of Board jurisdiction is even more strongly indicated in the present matter than in the recent decision in Hanna Boys Center 284 NLRB 1080 (1987) in which the Board included child care workers among others in one of the two nonreligious/ nonteaching/nonprofessional bargaining units found appropriate While rejecting arguments that the child care workers were analogous to teach ers with a critical role in fulfilling the mission of a church operated school the Board did find that the child care workers among a range of nonreligious functions did shepherd the resident male students to chapel saw that the boys said their prayers and selected a boy to say the evening prayer activities consistent with a subpart of the child care workers job description which included D Teaching values ethical principles religious observances The duties of the employees at the Williams Residence have no religious component is Hudelson Baptist Children Home 276 NLRB 126 127 (1985) SALVATION ARMY RESIDENCE 951 III THE ALLEGED UNFAIR LABOR PRACTICES A Background and Outline of Parties' Positions The Respondent operates a residence for about 400 mature adults in New York, New York, containing an on premises cafeteria and snack shop However, except for a first aid station, there are no health care facilities Since 25 January, Major Ralph R Leidy, an ordained Salvation Army officer, has been the residences adminis trator, principally responsible for its operations The as sistant administrator during the relevant March through June period was Major Laurance Garrel 20 Other super visors at the residence during the first half of 1983 in cluded Blanche Kronnel housekeeping department, Catherine Dempsey, dietary department, and Charles Scales, maintenance department Myrtle Jaynes was man ager of the front desk, which included oversight of the telephone operations and the doorpersons 21 Lieutenant Colonel Raymond D Howell of Salvation Army Greater New York Division Headquarters and men s social serv ices secretary, was in charge of Labor relations for the northeastern part of the United States In accordance with the parties stipulation, I find that Leidy, Garrel, Howell, Dempsey, Kronnel, Scales, and Jaynes were su pervisors and agents of the Respondent within the mean ing of Section 2(11) and (13) of the Act, respectively The Union's organizational campaign began soon after 1 March 1983, when Joseph Lovell, union district coun cil representative, received a telephone call from a party who identified himself as an employee of the Respond ent's residence and who invited the Union to attempt to represent the residence employees On 2 March, Lovell, accompanied by organizer There sa Rodriguez parked their car in the vicinity of the resi dence and began to distribute authorization cards to the Respondents employees as they passed on the street 22 Some interested employees aided the Union s campaign by taking additional blank authorization cards and giving them to other employees on the Respondents premises The complaint alleges that as of 17 March, the Union was the majority bargaining representative of the Re spondent s unit employees and it is stipulated that on that date the Union in writing requested that the Re spondent recognize it as bargaining agent for the rele vant unit employees On 17 March, the Union also filed the petition for representation election in Case 2-RC- 19504 As noted, the Union was not successful at the election conducted on 25 and 26 May, and the issues ansing from the election, the objections and the determi 20 By the time of the hearing Garrel had transferred to another Salva tion Army assignment 21 Doorpersons are excluded from the bargaining unit as guards Their duties included discouraging undersirable people from entering the build ing checking permits or passes for property taken from the building by employees and other security functions As their role in the checking of passes is in issue in connection with the alleged unlawful discharges this function will be considered below in detail At the time of the heairng doorpersons no longer were employed 22 Many of the Respondents employees were distinguishable by the uniforms they wore which were differently colored for each department native challenged ballots have been consolidated as a part of this proceeding 23 Although Major Leidy, the residences administrator, testified that he first became aware of the Union's orga nizational campaign during either the second or third week of February, the Union, as indicated, did not begin to distribute authorization cards outside the residence until the beginning of March 24 Thereafter the Respondent conducted a series of meetings with its employees in a sustained effort to counter the Union's campaign These meetings, presided over by Leidy with support from assistant administrator Garrel, were conducted on 13 April, during the morn ings and afternoons of 13, 17, and 19 May, and during the afternoon and morning of 23 and 24 May, respective ly 25 Except for the first, April meeting, which was at tended only by about 10 to 15 dietary department em ployees and held in the residence dining room, the other preelection meetings were attended jointly by groups of about 30 employees summoned from the various affected departments, including housekeeping, dietary, and main tenance, and were held in the activities room in the rest dence basement The May sessions were duplicated in scope so that each afternoon session covered the same ground as had the morning meeting that had immediately preceded it In this manner the afternoon 23 May and the morning 24 May meetings also were the same in con tent The Respondent thereby was able to rotate its em ployees attendance at the May meetings so that, theo retically, each employee would be exposed to all of the Respondents campaign materials Attendance at all meetings was mandatory and employees were told when and where to be present by their immediate supervisors Lieutenant Colonel Raymond D Howell of Salvation Army headquarters read the same prepared speech to the employees at the 23 and 24 May meetings Many of the numerous alleged violations of Section 8(a)(1) of the Act relate to what was told to employees at these preelection meetings of April and May by Leidy Garrel and Howell The General Counsel considers as violative of Section 8(a)(1) of the Act certain remarks made at a 26 May meeting of employees called by Leidy in the residence lounge very shortly after it became known that the Union had lost the representation election, statements made to individual employees before the election apart from these meetings by Leidy and by other residence su pervisors and what was told to employees by the Re spondent s counsel at private interviews well after the election while preparing for the trial of this matter The complaint further alleges that on 28 June about 1 month after the election two maintenance employees James N Gibbons and Clarence Greaves, were terminat 2S Another unit issue related not to the election but to the General Counsels request for a bargaining order is the unit placement of certain employees whose ballots were not challenged but whose status in this regard must be resolved to determine the size of the unit on 17 March so as to enable determination of whether the Union enjoyed support of a majority of the unit employees 24 As noted Leidy had become administrator only shortly before on 25 January 25 The representation election took place on 25 and 26 May 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed in violation of Section 8(a)(3) and (1) of the Act be cause of their union activities and sympathies The Re spondent contends that these individuals were terminated solely for having stolen carpeting from the residence The General Counsel, the Union and the two men in volved assert that Gibbons had received prior permission from his immediate supervisor to tie, store and remove the carpeting Greaves chance involvement began only at the last minute when, as a favor he helped Gibbons to carry the heavy carpeting out the door Finally the General Counsel and Union argue that the Respondent's unfair labor practices at the meetings and elsewhere in the residence, including the two discharges were so flagrant as to preclude a free election and that accordingly, the Respondent should be required to rec ognize and bargain with the Union B The Alleged 8(a)(1) Violations 1 The 13 April meeting a Facts Employees Jose Vasquez and Michael W Wallace26 testified concerning the Respondents first preelection meeting on 13 April It was held in the residence dining room, was conducted by Leidy and attended by Dietary Department Supervisor Catherine Dempsey and by 10 to 15 dietary employees 27 According to Wallace and Vasquez Leidy told the employees that there were some union people hanging around outside the building that he dust had taken office and that the employees had not given him a chance He had not known that anything like this was happening There were two sides to the story The Union had one side and the Williams Residence had another Leidy asked the employees to give him a chance Leidy continued that the building was run on a fixed income and that he could pay only so much With time, he would try to make it a little better The employees should come talk to him about their pay instead of going to the Union Leidy also told the employees that if the Union came in they would lose breaktime and he would not give the Union a penny The Union belongs to the Mafia and the rules around the residence would change 28 26 At the time of the hearing both Wallace and Vasquez were em ployed as kitchen employees in the Respondents dietary department where they reported to that departments supervisor Catherine Dempsey Wallace by then had been with the Respondent for about 8 years and Vasquez for about 6 months less 27 The April meeting was the only one where all the employees were drawn from a single department The Respondents subsequent gatherings were attended by groups of about 30 employees summoned from all rele vant departments 28 Wallace testified that two individuals whose status as unit employees originally was disputed also spoke at the April meeting Dining room em ployee Irene Mitchell told the employees that she really did not want the Union and did not know why any union was coming in Mary Vester Reese chief cook stated that she did not think that the employees needed a union Although the parties subsequently stipulated that Mitch ell should be included in the unit Reese s status remained in dispute and is considered below Leidy testified that at the April meeting he thanked the employees for coming apologized for having inter rupted their work and informed them that word had come to him about the Union s efforts He told the em ployees that the Salvation Army had received a telegram from the Union in March and that the employees prob ably would have to make some decisions concerning their relationship with the Union Leidy told the group that he had called them together to give information that they should think about as they considered signing up for a union If the Union should come to represent the employees, certain procedures normally would follow There would have to be a negotiating session and the employees should know that in negotiations as Leidy understood them, there was give and take and negotia tions were not just a one way street All benefits would go to zero and things that the Salvation Army had given the employees in the past would have to be negotiated Wages and benefits would be negotiated and benefits the employees then had might not necessarily be theirs after bargaining If the parties did not come to an agreement during the bargaining process, the only alternative that Leidy knew would be for the employees to strike Leidy denied having told the employees at that session that they would be replaced in the event of a strike or that he had invited employees to come to him with their problems The April meeting ended after Leidy finished answer ing employees questions b Discussion and conclusions From the foregoing I find that Leidy s unrefuted statements to employees that they would lose breaktime and that rules around the residence would change if the Union came in respectively violated Section 8(a)(1) of the Act Leidy also admittedly observed at that session that if the Union came in, give and take negotiations would follow all wages and benefits would go to zero wages and benefits previously afforded would have to be re negotiated and might not still be available to employees after bargaining and that in the absence of agreement, the Union s only known alternative was to strike As stated by Administrative Law Judge Robertson in his Board approved decision in Baton Rouge General Hospital 29 The cases have customarily found that threats to bargain from scratch or from a blank sheet of paper do not violate Section 8(a)(1), when the con text of the statement shows the comments relate to the give and take of bargaining and when it is re vealed that benefits may go up or down during ne gotiations General Electric Co, 246 NLRB 1103, 1107 (1979) Delchamps Inc, 244 NLRB 366, 372 (1979) Rapid Mfg Co, 239 NLRB 465, 471, 472 (1978) 28 283 NLRB 192 210-211 (1987) Also see La Z Boy 281 NLRB 338 (1986) Clark Equipment Co 278 NLRB 498 (1986) Kawasaki Motors Mfg Corp 280 NLRB 491 (1986) SALVATION ARMY RESIDENCE Although the power to strike or the strike itself, may be one of the Union's strongest weapons it is not the only weapon [or alternative] as indicated However that statement does not consti tute misrepresentation in view of the strike being the most likely recognized weapon available to labor organizations Where the speech does not stress that a strike is inevitable, no violation is found (see Tipton Electric Co, 242 NLRB 202) Moreover an employer does not violate the Act by telling employees they will not receive pay during a strike and that it has a right to replace eco nomic strikers 30 From the above authority, I find that Leidy s state ments to employees that wages and benefits would go to zero, would have to be negotiated and might not still be available to the employees after bargaining, did not vio late Section 8(a)(1) of the Act I also conclude that there was no violation of Section 8(a)(1) in Leidy s statement that a strike might be the only alternative if there is no agreement Leidy did not tell the employees that a strike was inevitable Leidy did not deny testimony that he had told em ployees at the April meeting that, in the event of bar gaining, he would not give the Union a penny Accord ingly, I find that the Respondent violated Section 8(a)(1) of the Act by warning its employees that it would be futile for them to select the Union as bargaining repre sentative as the Respondent would approach the bargain ing process with a closed mind 3 i The Respondents fur ther representation that the Union belonged to the Mafia also violated Section 8(a)(1) 32 Finally with respect to this meeting noting from the record as a whole that Leidy s general credibility was impaired by his substantial and repeated impeachment by the Union during his subsequent testimony concerning the unit placement of dining room/snack bar employee Bart Burton, I credit testimony denied by Leidy that he invited the employees to talk to him about their pay in stead of going to the Union I conclude that Leidy s re marks in this regard contain an implied promise to adjust grievances concerning compensation to reduce or remove reason for union representation Such conduct violates Section 8(a)(1) of the Act as an unlawful solicita tion of grievances 33 30 The Employer in Baton Rouge General Hospital as here had re ferred only to replacement of economic strikers-those participating in a stnke that had resulted from rejection of union negotiating demands 31 Atlas Microfilming 267 NLRB 682 685-686 (1983) Dimensions in Metal 258 NLRI3 563 566 (1981) 32 Southland Knitwear Inc 260 NLRB 642 643 655 (1982) Although in Newsday Inc 274 NLRB 86 95 (1985) an employers unrefuted state ment that a union was no good for its employees and that the Union s president was corrupt was held to be lawful expressions of opinion pro tected as the speech by Sec 8(c) of the Act the term Mafia goes beyond this as a specific reference commonly associated with menace and violence It therefore would appear that the Respondents unsubstantiat ed statement that the Union belonged to the Mafia was more exacerbated and inherently more coercive in affecting employees in their choice of a bargaining representative 33 Long Airdox Co 277 NLRB 1157 (1985) Windsor Industries 265 NLRB 1009 1016-1018 (1982) Lawson Co 267 NLRB 463 470 (1983) 2 The 13 May meetings a Facts 953 Combining the testimony of Majors Leidy and Garrel 34 on 13 May at 1015 a m and at 2 15 p m two meetings identical in content were conducted with dif ferent groups of employees from the dietary, mainte nance, and housekeeping departments at the residence Leidy began this and all later meetings by thanking the employees for coming and by apologizing for having in terrupted their work He then announced that he and Garrel would be giving the employees some information concerning the Union Instead of a lecture this informa tion would be in the form of a question and answer ses sion The employees were told that when the questions and answers were completed they would be shown a videotape In the morning session, Garrel then read aloud 23 pre pared questions pausing after each question so that Leidy could read back the respective prewritten answers During the afternoon meeting Leidy and Garrel re versed roles so that Leidy read the same questions and Garrel the answers During the question and answer part of the 13 May meetings, the employees were advised that the Salvation Army knew from experience that day to day relations are more direct and satisfactory without constant inter ference by an outside third party, that unions can cause trouble by stirring up false issues to justify collecting dues, that labor trouble would jeopardize the Respond ent s ability to operate successfully, that the Respond ent s facility did not have to give in to any union demand that was not for the good of or that may be harmful to the residence Employees were urged to vote at the representation election Selected excerpts from the Respondents transcript of the questions and answers follow reflecting the Re spondent s account of matters raised in the testimony of the General Counsels witnesses as Q If the Union is voted in will we get all the things that the union had been promising? A Contract negotiating is a two way street Union members can win and they can also lose Many employees have found themselves with less than they had before the union took control Once a union represents employees the employer can no longer grant voluntary wage raises or improve fringe bene fits at will Instead, these things must be negotiat ed As a result many employers are forced to hold back on the raises and fringe benefits and give only what the union can force out of them How else can you bargain? Q If the union is voted in will there be a strike? Cf Middletown Hospital Assn 282 NLRB 541 (1986) where an analogous potential violation was not found because not alleged in the complaint ' Garrel with the Salvation Army for 35 years at the time of the hearing was assigned to its divisional headquarters in Pittsburgh Pennsyl vania He was assistant administrator of the Williams Residence under Leidy from January to June 1983 35 Italicized and capitalized passages of the excerpted answers appear as emphasized by the Respondent 954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A I don t know We would bargain in good faith But if the facility doesn t agree to the things the union has been promising the only way the union can try to force it to agree is to make you go out on strike It is easy for the union to make all sorts of big promises to you, but something else for the union to fulfill its promises Q If the union calls a strike, do I have to go out on strike if I don t want to? A YES AND NO' If you were a union member and did not go out on strike, the union could fine you Records show that in the last few years fines of up to several thousand dollars have been levied by various unions against members crossing picket lines In a lot of strikes those people who are striking will not let employees who want to work cross the picket line The union may try to stop you with threats and intimidation Unions have been known to bring in outsiders-people who have never worked at this facility-to do its picketing for it When this happens, everybody suffers-not only those who want to strike, but those who are not al lowed to work Q If the Union calls a strike, can we lose our jobs? A YES Under the law, if the union makes you strike to try to force the employer to agree to the union s economic demands, the employer is free to replace the strikers This means that after the strike is over, you may no longer have a job The law does not force the facility to rehire you unless an opening occurs for which you are qualified and you are next in line on the rehire list which could be a long time if ever The only real weapon the union has is to strike When strikes occur employees lose wages that are never recovered while union officials continue to draw their salaries and expenses during strikes As I have said before if members decide to work at their jobs during a strike, they may be kicked out of the union or fined some outrageous sum or both We read about union violence in the papers The violence that accompanies a strike is something the organizer doesn t like to discuss Unfortunately the violence and terror accompanying a strike are something no one can fully comprehend unless he or she has lived through the experience And we all know that the HERE is as bad as any other Q Can the union make the facility run its busi ness and furnish us with a job A No, the union has no power legally or other wise to force the facility to operate for one day, week, month, or year Q Will the union get us more benefits or is it possible to lose something we now have? A The union may tell you that you have every thing to gain and nothing to lose This may not be true If the union gets in and a contract is negotiat ed the union can get you only the benefits which the facility agrees to give and no more If the de mands of the union are such as would hamper the efficient operation of the facility, the facility would then be justified in demanding a reduction in wages or other benefits now enjoyed in order to operate profitably Whether you will still have the benefits you now have after a contract is negotiated will depend entirely on what takes place in the negotia tions The union can't guarantee the results no matter what it promises you now You could actual ly lose in such a situation It has happened many times) Employees further were advised that, in the Respond ent s opinion, unions could get nothing for them that they could not obtain anyway, except a chance to pay union dues that the Respondents success in satisfying its residents needs is what determines wages and benefits that, regardless of unionization, the Respondent cannot give more than is economically justified, and if the Union should demand more than the facility could give its only tool to justify its existence is a strike or threat to strike Employees also were told of how difficult it is to get rid of a union once it is in Employees who tried to get the Union out could be considered in violation of the Union s constitution and fined noting that fear of union bosses, fines and intimidation are the main reasons em ployees are afraid to try to get the union out-once it is in-even though they way [sic] hate working in a union environment Employees also were informed during the question and answer sessions that union membership was expen sive, with dues generally at least $100 to $200 a year and initiation fees costing as much as $100 Fines, too, were not unusual in unions including HERE There fol lowed a summary of costly fines assessed by unnamed unions against unspecified members for working during a strike for not walking a picket line and for working non union The employees were reassured that they would not lose their jobs if they voted against the Union that they had the right to campaign against the Union that they were not obliged to let union organizers into their homes, and that they could vote against the Union even if they previously had signed union authorization cards The last question and answer, in relevant part, follows Q Why is the facility fighting the union so hard? A We value our trained employees but if the facility should desire to operate and stay in buss ness during a strike it would be necessary for us to replace all economic strikers The union has no in vestment in your future or the future of this facili ty Ask yourself these questions-IF I DID NOT HAVE A JOB, WOULD THE UNION BE INTERESTED IN ME? IF THE UNION CALLED ME OUT ON STRIKE, WOULD IT PROMISE TO GET ME A JOB? WHERE WOULD THAT JOB BE? WOULD THE UNION TAKE CARE OF MY FAMILY AND MY BILLS IN THE MEAN TIME? After the question and answer session was completed the lights were turned off and as promised a videotape entitled This Matter of Unions, was shown This video SALVATION ARMY RESIDENCE tape showed an employee and a supervisor, the Employ er s personnel manager, seated at the latter s desk in the office, discussing, at the employees initiative, the ramifi cations of a union campaign During the meeting, the su pervisor answered the employees questions about the Union and what it could mean 36 At the end of both the morning and afternoon 13 May sessions, after showing the video film, Leidy asked for questions When there were none, he asked the employ ees to return to work b Discussion and conclusions The U S Supreme Court has stated in NLRB v Gissel Packing Co 37 [a]n employer is free to communicate to his employ ees any of his general views about a particular union, so long as the communications do not con tarn a threat of reprisal or force or promise of ben efit " He may even make a prediction as to the pre cise effect he believes unionization will have on his company In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employers belief as to demonstra bly probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization See Textile Workers v Darlington Mfg Co 380 U S 263 274, n 20 (1965) If there is any implication that an em ployer may or may not take action solely on his ini tiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment We therefore agree with the court below that (c)onveyance of the employer s belief, even though sincere that unionization will or may result in the closing of the plant is not a state ment of fact unless, which is most improbable, the eventuality of closing is capable of proof 397 F 2d 157 160 As stated elsewhere, an employer is free only to tell what he reasonably believes will be the likely economic consequences of unionization that 36 Although the General Counsel was granted leave to add to the record transcripts of those soundtrack portions from the two videotapes shown employees on 13 and 17 May respectively that were deemed vio lative of the Act together with written descriptions of what correspond ingly was being shown on the screen this was not done and no argu ment concerning the videotapes was made in the General Counsels brief Accordingly no finding will be made concerning the lawfulness of the videotapes The significance of these videotapes in any event might have been lessened by the Board s finding in Kawasaki Motors Corp 280 NLRB 159 (1986) that a videotape shown by an employer to its employ ees during a union s organizing drive depicting strike violence and which portrayed to employees that the union had had a long and violent strike history and that one third of its members were unemployed due to that union s stands was found together with employer statements made during its showing to have been expository in nature and speech protect ed by Sec 8(c) of the Act Also see Offshore Shipbuilding 274 NLRB 539 553 ( 1985) Although the Respondent has included what purports to be the full text of the supervisors remarks in This Matter of Unions on p 15 of its brief the representations made there are not cognizable as evi dence 37 395 U S 575 618-619 (1969) 955 are outside his control , and not threats of economic reprisal to be taken solely on his own volition NLRB v River Togs Inc, 382 F 2d 198, 202 (2d Cir 1967) As indicated above, employer threats to bargain from scratch made to employees during a unions organizing drive do not violate Section 8(a)(1) of the Act where the context of the statements show the comments relate to the give and take of bargaining , where it is revealed that benefits may go up or down during negotiations 38 Nor is there a violation in employer statements to employees that if a union's demands are not met, the strike is the only weapon,' in which case strikers could lose their jobs as the employer had the right to replace them 39 Applying the above principles, it does not appear that the series of questions and answers read to employees at the 13 May meetings , the transcript of which is in evi dence, contained language violative of the Act As found above, it is lawful for an employer, as here to inform employees that bargaining would have to begin at the zero point and may result in reduced benefits Although the Respondent alluded to the prospect of a strike should the Union become bargaining representative and its negotiating demands not be met , the Respondent, on 13 May, did state an intention to bargain in good faith The Respondent did not tell the employees that a strike was inevitable or that it was the only way the Union could achieve reasonable contract demands The Respondent's suggestion was that in the event that unrea sonable union demands were made , it might be put in the position of accepting a strike I therefore, conclude that the references to a strike and its consequences were pre dictions of the possible occurrence of events outside of its control and not a threat of reprisal based on its own volition 40 Although the Respondent 's further representations during the question and answer segment that the Union lawfully could fine and otherwise discipline employee members who attempted to resign from the Union during a strike and who had not been supportive would not now be true in view of Machinists Local Lodge 1414 (Neufeld Porsche Audi)4 i and such later cases as Machin ists District Lodge 94 (McDonnell Douglas) 42 and the Su preme Court s decision in Pattern Makers League of North America AFL-CIO v NLRB, 43 the Respondent s observations in this regard were not misrepresentations of law when made in 1983 because predating the earliest of these matters The Respondent's above described references to the possibility of union violence accompanying a strike, 38 Baton Rouge General Hospital 283 NLRB 192 (1987) supra Stand and Products Co 281 NLRB 141 (1986) Pilhod of Mississippi Inc 275 NLRB 799 807 (1985) 39 Baton Rouge General Hospital supra Golden Fan Inn 281 NLRB 226 (1986) 40 See Reliable Mfg Corp 240 NLRB 90 96 100 (1979) 41 270 NLRB 1330 (1984) 42 283 NLRB 881 (1987) 43 473 U S 95 (1985) Also see Machinists Lodge 1233 (General Dynam ics) 284 NRLB 1101 (1987) Cf NLRB v Allis Chalmers Mfg Co 388 U S 175 (1967) 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD should one occur and of the difficulties of getting nd of a union after it has come in, in the context used here also were found lawful in Baton Rouge General Hospi tal 44 Accordingly as no finding will be made concerning the videotaped material for reasons stated above, the Re spondent did not violate Section 8(a)(1) of the Act dunng the 13 May meetings 3 The 17 May meetings-facts and conclusions Garrel and Leidy testified that on 17 May at 10 15 am and 2 15 p in , respectively, two identically struc tured meetings again were held with different groups of employees from the relevant departments Leidy in formed the employees that they would be given further information concerning the Union Another videotape, of about 30 minutes' duration, entitled Why Employees are Leaving Unions, was shown to the employees When the video film showing was completed, Leidy invited ques tions and sent the employees back to work when none were asked Since the morning and afternoon meetings of 17 May were devoted exclusively to the showing of the second videotape and as, for reasons stated in footnote 36, above, in connection with the 13 May meetings, it has been concluded that no finding can be made with respect to these tapes, no determination is made concerning events at the 17 May meetings 45 4 The 19 May meetings a Facts On 19 May at 10 15 a in and 2 15 p in respectively, Leidy and Garrel conducted two more meetings of the same scope and content before successive groups of em ployees from the maintenance, dietary, and housekeeping departments Leidy told the employees that he and Garrel would be giving them information in the form of a slide presentation Should the Union come in there in evitably would have to be a bargaining period The Sal vation Army wanted the employees to be aware of the process and some of the implications of bargaining The lights then were turned off and Garrel stood by a screen in front of the room and spoke while Leidy pro jected a senes of 42 slides onto the screen The same slides were shown to the employees during each of the 19 May meetings accompanied by the same explana tions 46 44 Supra Also see Prlliod of Mississippi Inc 275 NLRB 799 (1985) Kawasaki Motors Mfg Corp 280 NLRB 159 (1986) 46 See Kawasaki Motors Corp supra The videotape shown on 17 May followed the format of the weekly television program Sixty Minutes and was narrated by that program s Mike Wallace In documentary style the videotape portrayed violence dunng a stoke by a union other than HERE 46 The General Counsel does not contend that the visual content of any of the slides shown to the employees either dunng the two 19 May meetings explained by Garrel or dunng the later sessions of 23 and 24 May which were narrated by Leidy were violative of the Act The General Counsel does argue that remarks made to the employees while certain slides were being shown was unlawful The presentation began with a series of slides center ing around a U S court of appeals decision which as Garrel represented, related to the bargaining process, fol lowed by a depiction of a Board decision Garrel stated that these decisions were significant in that they held that the Employer had not violated the Act by reducing wages The employees then were shown a slide of the petition for representation election filed in Case 2-RC-19504 by the Union and a slide of the Union s mailgram to the Re spondent requesting recognition and bargaining Garrel told the employees that it was peculiar that the Union was asking the Respondent to bargain with no notifica tion at all to the employees 47 A senes of slides followed showing portions of con tracts between Local 517-S and various employers, fo cusing on the dues checkoff provisions, provisions of fording supersenionty for stewards, and followed by slides relating to the decertification of a union at the Sal vation Army's Adult Rehabilitation Center in Philadel phia, Pennsylvania The employees were told that the Philadelphia case ended in December 1982 when the Re gional Director informed the Employer Petitioner in that case, in writing that the Union no longer was interested in representing the employees A succession of slides followed describing the closing of the Salvation Army s Eventide Nursing Home in De troit Michigan of which, Garrel related he then had been director This series began with a slide identified as the petition for an election in a unit of Eventide employ ees, filed by Local 79, HERE, a sister local to Local 517-S, with the Board s Detroit Regional office The em ployees next were shown slides portraying the tally of ballots in favor of Local 79 and of that successful union s subsequent unfair labor charge which Garrel explained alleged that Eventide had not bargained in good faith Garrel then identified certain pages on the screen as being from an agreement negotiated by Eventide and the union for the closing of the Eventide facility Garrel called the employees attention to certain provisions of this agreement, including the signature page that he and others had signed A slide senes of newspaper clippings then were pro jected showing the headline Salvation Army Closing Complex For the Elderly Garrel informed the employ ees that these were copies of newspaper stories covering the closing of Eventide He read brightly underscored portions of these newspaper clippings referring to Even tide s financial burden A succession of slides of photographs followed The first was a photograph of two buildings on one of which the words The Eventide could be read Garrel ex plained that the building shown in the foreground had been the Eventide Nursing Home and that the building in the background has been a facility for the aged The two buildings had formed one complex linked by a tunnel The nursing home facility had been for critically ill people, but no longer was a nursing home The former 41 Garrel denied having asked the employees if they had known any thing about the Union s bargaining request SALVATION ARMY RESIDENCE Eventide buildings were shown as completely vacant as Garrel announced that the nursing home and the home for the aged had been closed and all the residents trans ferred to other facilities Garrel identified the next slide as a photograph of three employees at what had been the Eventide nursing facility which, Garrel pointed out, by then had become a drug and alcohol detoxification center known as the Harbor Light program This was because the Salvation Army had moved Harbor Light, another of its programs, into that facility The successor Harbor Light program also was operated by the Salvation Army 48 The next slide showed an individual wearing a white jacket Garrel told the employees that this slide picutred a person who seemed to have a cheerful countenance There was no sense of doom about her A slide picturing two people, one of whom was lying on a bed, was shown Garrel explained that the Harbor Light facility now was being used to treat those individ uals who either were drug addicts or alcoholics He did not know what was the problem of the patient shown, but the patient was being attended by an employee, most probably a nurse This was followed by a photograph of two individuals, whom Garrel told the employees, seemed to be quite happy, the employees shown were not part of any Union The next slide portrayed a number of people, some of whom were seated Garrel explained that this slide showed a section of the former nursing home that was being used as a dining room There were patients who were eating and being attended to by some of the em ployees Garrel observed that the place seemed to be hustling and bustling with the new program that was going very well Garrel explained that the next slide was another picture of three individuals who seemed to be happy and content in their jobs now that they were in a facility that had been reopened for another program Garrel told the employees that the next slide was a copy of the Daily Labor Report He called attention to the headline Courts Favor Tough Management Bar gaining and referred the employees to red underlined passages that dealt with the bargaining process In a later slide Garrel read an excerpt from a head note to Schnadig Corp 49 a decision concerning an al 48 Garrel testified that it had taken about 1 year to remodel the former Eventide facility to accommodate its Harbor Light detoxification pro gram which previously had been located elsewhere During the year long renovation period the Eventide building had stood vacant The Harbor Light program and its employees then were moved to what had been Eventide s premises Although Garrel as indicated explained to employees at the 19 May meetings that Eventide and Local 79 HERE certified to represent Eventide employees had negotiated for the closing of Eventide Garrel did not also tell the employees that Local 79 had been advised about the Eventide buildings future The Eventide facility was closed in 1981 about 2 years after the repre sentation election where Local 79 was certified as representative The Eventide employees were terminated when that facility closed receiving benefits negotiated with Local 79 None thereafter were employed by Harbor Light which brought in its own staff 49 265 NLRB 174 (1982) but left uncited in the slide presentation As extensive violations were found in Schnadig including unlawful unilateral wage reduction that case does not particularly support the Respondents reference infra 957 leged refusal to bargain Garrel again read the under scored portion, referring to it as a Board decision where no violation was found when the company did not in crease wages The last slide explained by Garrel simply showed the figure 1,623,240 Garrel told the employees that that was the number of hours lost in strikes by employees connected with HERE After the slides were shown, the lights were turned on When the employees declined an opportunity to ask questions, they were returned to work Literature was distributed to the employees as they left but Garrel could not recall the content As stated, the same slides and commentary were given to the respective employees who attended both 19 May meetings b Discussion and conclusions During the morning and afternoon sessions of 19 May, the Respondent showed successive groups of employees a series of 42 slides projected by Leidy and explained by Garrel Of particular consequence among the slides shown on 19 May were those concerning the closing of the Salvation Army s Eventide Nursing Complex in De troit, Michigan, after Local 79, HERE, was certified as bargaining representative and the subsequent reutilization of the Eventide building Garrel told the employees that he had been in charge of Eventide when it was closed Although Garrel did not tell the Williams Residence employees in so many words that if they chose the Union in the forthcoming election, the Williams Resi dence, as was Eventide, would be closed, that they would be permanently laid off, perhaps with negotiated severance benefits and that the residence building might later be assigned to some other nonunion Salvation Army program the possibility of such a sequence occur ring was made coercively clear 50 As stated by Administrative Law Judge Roth in his Board approved decision in Blue Bird Body Co ,51 where the employer also had shown slides to its employees to counter a union s campaign [A]s the Supreme Court pointed out in N L R B v Gissel Packing Co, 395 U S 575, 617-620 (1969), employees because of their economic dependence on the employer tend to pick up intended implica tions of the latter that might be more readily dis missed by a more disinterested ear, and are par ticularly sensitive to rumors of plant closings Therefore the employers statements as to the con sequences of unionization must be carefully phrased on the basis of objective fact and [the em ployer] must `make his views known without en gaging in brinksmanship when it becomes all too easy to overstep and tumble over the brink Gissel, supra In sum the employer must bear the responsibility for any misleading ambiguity on his part 50 See Midland Ross Corp v NLRB 617 F 2d 977 984-985 (3d Cir 1980) cert denied 449 U S 871 (1980) si 251 NLRB 1481 1488 (1980) 958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Similarly, as noted in Walter Carpet Mills 52 [i]f the subject matter discussed by the employer is one peculiarly in his control (e g , closing the plant, moving the plant, loss of wage increases, loss of benefits) the speech will be very carefully scruti nized by the Board In election situations an em ployer may make statements only if they are made on the basis of objective fact to convey his belief as to demonstrably probable consequences beyond his control Here, the Respondent described to its Williams em ployees how it had closed Eventide, a sister facility in another city, after a sister union to Local 517-S had been certified there as bargaining representative how Even tides employees were laid off, and how the Salvation Army turned the use of that same building to one of its other programs that still continues there with its own cheerful, nonunion employees, none of whom had worked for Eventide Garrel also made the point that he, who had presided over the closing of Eventide, was then at the Williams Residence As broadly suggested to the Williams employees, at least part of the Harbor Light employees' happiness could be traced to the fact that they, unlike the former Eventide staff, were working The Eventide/Harbor Light slides, which were 17 of the 42 slides shown during each 19 May session, were no quick reference They constituted 40 percent of the Re spondent s presentation for that day Little was given to the Williams employees in way of objective fact about the background of Eventide/Harbor Light Apart from some undecipherable slides of newspa per clippings headlining that Eventide had had a finan cial burden, nothing specific and meaningful was con veyed concerning the financial circumstances and the source of the difficulties that had led to Eventide s clos ing and its on site replacement by another Salvation Army program Similarly the only connection between Eventide and the Williams Residence of which the em ployees were made aware, besides shared status as Salva tion Army programs and the presence of Garrel was the advent at both places of sister locals of HERE to which the Respondent repeatedly had expressed its strong op position Even had the objective reasons for closing Eventide and the conveyance of its building to Harbor Light been explicated there still was no factual explana tion to the Williams employees as to how, apart from the Respondents distaste for HERE the financial and gener al situation of their place of employment in New York City compared to Eventide in Detroit so as to make Eventide economically relevant to their situation Also if finances had been a problem in Detroit it was not ex plained why it had been expedient for the Salvation Army to close and idle the Eventide building while payiny the costs of a year long renovation on behalf of another program Finally in describing what had occurred at Eventide/Harbor Light the Respondent did not merely state objective facts to convey its belief concerning the 52 259 NLRB 691 694 (1981) demonstrably probable consequences of unionization that lay beyond its control Garrel, for example, did not tell the Williams employees about what had happened at some other employers unionized premises What was done at Eventide/Harbor Light was internally decided and implemented by the Salvation Army The clear mes sage to employees was that what the Salvation Army could do at the large Eventide Nursing Complex it could do at the Williams Residence Therefore from Garrel s testimony I find that his Eventide/Harbor Light presentation was a strongly im plied threat to the Williams employees that if they chose the Union in the forthcoming election, the Williams Resi dence, too, might be closed its facility quite possibly conveyed to another Salvation Army program, and that the Williams Residence employees would share the fate of those who had worked at Eventide Garrel, the officer who had presided over Eventide s demise already was in place at the Williams Residence Such a threat violated Section 8(a)(1) of the Act and was particularly aggravat ed because it deliberately was repeated at the successive meeting so as to be heard by virtually all the residence s bargaining unit employees 53 The remaining slides shown during the 19 May meet ings which concerned repeated references to specific Board decisions upholding employers who did not agree to wage increases during bargaining and which showed the many work hours lost in strikes by employees con nected with HERE, were lawful 5 The 23 and 24 May meetings a Facts The last two paired preelection meetings were con ducted on 23 May at 2 15 p in and on 24 May at 9 a in Each of these meetings were conducted principally by Leidy, with Garrel s assistance, and ended with a pre pared speech by Lieutenant Colonel Raymond D Howell from Territorial Headquarters Each session was attended by approximately 35 employees from the main tenance dietary and housekeeping department Leidy as was his practice began each meeting by thanking the employees for coming, by again apologizing for having interrupted their work and by announcing that the em ployees were going to receive additional information pertaining to unions This time the information would be in two forms There would be a slide presentation and then the employees would listen to a man from Salvation Army headquarters At the 23 and 24 May meetings, Garrel operated the slide projector while Leidy explained the 82 slides that were screened While the first slide showing the word Facts was being projected, Leidy told the employees that the Sal vation Army was going to show them a series of slides all of which could be proved and are facts During the showing of the next slide a cover of the magazine, US 53 Midland Ross Corp v NLRB supra Also see Han Dee Pak, Inc 232 NLRB 454 456-457 (1977) in which the Board found that posting a photograph of an empty plant in related circumstances constituted an un lawful threat of reprisal SALVATION ARMY RESIDENCE News and World Reports on which appeared the words 'Unions on the Run,' Leidy told the employees that it is not unusual for the news media to report the problems of unions losing members During slides where the U S Department of Labor and the National Labor Relations Board were given as sources, Leidy explained that the proportion of represen tation elections won by unions were declining that there was a decline of union membership in the United States and that four out of five U S workers were not union members Leidy then identified a series of 10 slides as pages from HERE s constitution Certain underscored passages on the slides were emphasized and read aloud by Leidy who told the employees that in HERE it is not one man one vote Leidy pointed out that the HERE Convention is the supreme governing body, that under HERE s con stitution, the general executive board has broad powers that could effect the employees financially In a later slide in this series, Leidy pointed out the HERE presi dent's powers included the right to make payments for lobbying or for other political purposes During the slide series on HERE s constitution Leidy focused on that union's finances, observing that under its constitution, the officers were very highly paid He read aloud the salaries of the president and general vice presi dent, while also indicating the salaries of other union of ficers as depicted on the slides Leidy told the employees that these pages of the constitution showed the initiation and reinstatement fees The fact that there were fees were provided for reinstatement implied that it might be costly to employees to get back into the Union should there have been some problem when they left member ship In subsequent slides concerning HERE s constitution, Leidy pointed out that not only did the constitution pro vide for monthly dues, but also for per capita taxes Leidy told the employees that under HERE s constitu tion members who did not pay dues for 2 months were automatically suspended as shown on the slides The constitution also provided for the charging and trial of members There then followed several slides relating to the disci plining of HERE s members officers, and business agents for various reasons Leidy announced that he was show mg the employees an excerpt from a legal decision where a HERE Loyal and Faithful Member was found to have been un'awfully expelled for threatening to bring criminal charges against his union Leidy ex plained that another slide showed the finding of a Feder al court that a HERE local union officer had been fined and barred from office for having criticized the Union's leadership He noted that if union officers could be fined and barred for criticizing the leadership, then perhaps, the employees would want to reconsider their member ship in the Union Another slide related to the discharge of a local union business agent for having unlawfully filed a sex discrimination suit against HERE Four more slides related to HERE's constitution then were projected onto the screen In connection with these slides, Leidy explained that once the employees became members of the Union they always must consider the 959 possibility of the strike He then read aloud from the rel evant part of the constitution, as excerpted on a slide that local union members must support strikes by other locals when obliged to do so by the international presi dent and that the executive board must approve all strikes before financial support is authorized for strikers As the constitution provided that joint elective boards must be formed if two or more local unions exist in the same city, Leidy informed the employees that such boards also have power to levy taxes and assessments on members Since a local union s bylaws must be approved by the international president, members did not have the autonomy that the employees might have expected Leidy asked the employees to pay particular attention to the slide that indicated that the lcoal unions are au thorized to pay the expenses of officers as it showed that paid in dues moneys apparently were being used for things that, in Leidy s opinion did not seem appropriate, such as expenses of officers or others who had been charged with violating the law The foregoing was followed by three slides depicting court decisions and newspaper clipping relating to the convictions of various HERE officials for criminal of fenses Leidy, explaining that two of HERE s officers were found guilty of embezzling, called attention to newspaper clippings that showed that two HERE mem bers had won a $275,000 judgment against a local union whose officers had solicited them for prostitution, for pornographic entertainment, and for personal sexual favors After each instance, Leidy suggested that the em ployees either give consideration as to with whom they would want to affiliate themselves or that they be careful about their affiliation Leidy then explained seven consecutive slides repre sented as excerpts of Local 517-S bylaws Leidy told the employees that he did not know what the Union had said to them about whether there would be dues or what they would be However the bylaws indicated that there must be dues Leidy then showed bylaws excerpts relat ing to the powers of the local union president and the executive board, concentrating on the rules and the pen allies for their violation Another series of slides related to fines levied by the unions against members Leidy called attention to a news article that showed that such fines were getting larger Leidy stated that according to the Union s own publica tion union fines can be imposed and that the one re ferred to in the slide then being shown had amounted to $2000 He told the employees that they had to consider that there could be fines and that Union fines could go as high as $2000 as shown in the Union s publication Leidy also pointed out that according to HERE s bylaws, charges could be brought against employees and that those charges could result in trials To make the Respondent's point that the Union wanted the employees because it needed their money, the employees were shown 13 slides identified as pages of the Labor Organization Annual Report Form 2 filed by Local 517-S with the Federal Government Leidy pointed out that unions are required to file such financial reports annually He called attention to the 960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Unions charitable and local political contributions, its schedule of new liabilities, and the listed disbursements to officers and employees respectively, and told the em ployees that he was showing the slides to illustrate how expensive it was to have officers of the local Union 54 In the context of the dues and fees that the Union had advised the Government that it charges its members, Leidy indicated that the expense lines on the financial statement showed that nothing was reported to the Gov ernment as having been spent on behalf of individual members Also, the Union reported that it had more money going out than was coming in A succession of seven slides assertedly describing union corruption followed These included a cover of US News and World Reports displaying the legend Union Corruption Worse Than Ever and a series of newspaper clippings referring to various investigations by law enforcement agencies and by a U S Senate sub committee concerning mob influence, the ties of various local union officials to organized crime and the taking of kickbacks One slide showed a newspaper clipping quot ing a U S Senator that HERE is one of the most cor rupt unions in the U S Leidy again told the employees that they should be careful with whom they affiliated themselves Another slide summarized allegations that Leidy explained had been excerpted from the Daily Labor Report Such allegations included statements that the international president of HERE had been hand picked by organized crime that an HERE officer had re tired on an $85 000 union salary after being convicted for misusing union funds, and that that officers successor was connected with a sweetheart agreement restau rant bombings, threats and murder Leidy finished this sequence by reading that the international union had the power to put local unions into trusteeship to further its own ends Subsequent slides went on to show additional allega tions of HERE s moral inadequacies As excerpted from the Daily Labor Report, these slides referred to hearings on the Union s corruption its organizers strong arm tac tics threats made to assault employees who had refused 54 Much of Leidy s testimony concerning what he had said while ex plammg the slides at the 23 and 24 May meetings including that he in formed employees that two HERE members had won a large monetary judgment from a local union whose officers had solicited them for prosti tution personal entertainment and sexual favors that HERE had ties to organized crime and that its principle officers were paid vast sums of money instead was attributed to Garrel by several employee witnesses called by the General Counsel These included dietary employees Mi chael Wallace and Kenneth Harris housekeeping employees Pearlina McQueen House William Ramos Victor Simeon and former mainte nance employee James N Gibbons Synthesizing their testimony they generally related that Garrel while explaining slides had told the em ployees that the Union was a member of organized crime that its big leaders were earning $250 000 a year and that the local was run by the Mafia and was operating a prostitution center with the employees money Although ascribing such remarks to Garrel these employees oth erwise lacked detail and some only had fragmentary recall Noting that the subject matter of the employees account substantially conforms to what was testified to by Leidy that Leidy s recollection of these events seems more complete was anchored by the slides in that the subject matter of the slides he explained corresponded more closely to his de scribed narrative then did those slides shown while Garrel spoke I credit Leidy s testimony that it had been he who had addressed the employees in the above areas and as to what he said to them to sign union cards, and an instance in Miami where the International Union took over contract negotiations to make sweetheart deals that allowed members with se niority to be laid off without cause After the strike, 300 to 400 employees were laid off Leidy then explained a sequence of slides identifying cases ruled on by the U S Court of Appeals, for the Sixth Circuit, where the court found, in part, that the United States Government including the NLRB could not guarantee employees that the collective bargaining process would start from where the employees presently were in wages, insurance pension, profit sharing and all other conditions of employment and that the terms and conditions of employment could only go up from there Neither the Board nor the Government guaranteed that the employees would not involuntarily lose benefits Ten more slides followed relating to strikes, particular ly those called by HERE These principally consisted of various newspaper clippings on the subject Leidy told the employees that he did not know what HERE had said to them pertaining to strikes, but when the employ ees became involved with the Union they must consider strikes as a possibility Accordingly, he wanted to show them HERE s record as far as the length of time lost on strike Leidy then read an emphasized figure of 50 weeks and identified a series of lengthy strikes at different loca tions, calling each strike and its duration to the employ ees attention Employers identified in the various news paper clippings as having been struck included facilities in Pittsburgh, Pennsylvania Detroit, Michigan and San Francisco, California In this series, Leidy showed clippings of help wanted advertisements placed in newspapers by various employ ers seeking to replace economic strikers called out by the Union Leidy pointed out that the law allows for the hiring of replacements for folks who are striking for eco nomic demands and that the employees also should con sider this if they affiliate themselves with the Union He told the employees that if the Union called them out on a strike over money or other benefits they are economic strikers and could be permanently replaced at their jobs and that if as union members they tired of striking and wanted to return to work the Union could fine them for each time they crossed the picket line During showing of the final slide which bore the legend Vote No Union Leidy stated that there were two things that he hoped to get through to the employees after this entire presentation It was important that they vote, the Salva tion Army urged them to vote The second thing is that the employees were asked to consider whether they would vote No Union After the slide presentation the lights were turned on and Leidy introduced Lieutenant Colonel Howell to the employees as an officer from headquarters who would speak to them Howell testified that he then read verbatim from a pre pared speech written by himself and a labor consultant Howell s speech to the employees in relevant part, was as follows THANK YOU MAJOR LEIDY GOOD MORNING/ AFTERNOON LADIES AND GENTLEMEN MAJOR LEIDY SALVATION ARMY RESIDENCE INTRODUCED ME AS A MEMBER OF THE ARMY S BOARD OF TRUSTEES HOWEVER IT IS ANOTHER ONE OF MY RESPONSIBILITIES THAT HAS GIVEN ME THE OPPORTUNITY TO SPEAK WITH YOU TODAY THAT RESPONSIBILITY IS LABOR RELATIONS YOU SHOULD KNOW THAT I AM PERSONALLY RESPONSIBLE FOR ALL LABOR RELATIONS AND UNION MATTERS IN THE EASTERN HALF OF THE UNITED STATES FOR THE SALVATION ARMY THAT RESPONSIBILITY HAS TAKEN ME INTO MANY COMBAT ZONES WITH REGARD TO UNION PROBLEMS THAT RELATE TO THE SALVATION ARMY I CAN SPECIFICALLY REFER YOU TO TWO INCIDENTS ONE OCCURRED IN BROOKLYN WHERE A UNION TRIED TO BLACKJACK THE SALVA TION ARMY INTO RECOGNIZING THEM WE DIDN T KNUCKLE UNDER AND THE RESULT WAS A NINE MONTH STRIKE WHERE WE REPLACED EVERY STRIK ER ANOTHER SITUATION LAST YEAR OCCURRED IN YOUNGSTOWN OHIO EMPLOYEES THERE WENT ON STRIKE WE OPERATED AT A 100% EFFICIENCY, AND THREATS OF VIOLENCE AGAINST THE EMPLOYEES THAT CROSSED THE PICKET LINE AS WELL AS SAL VATION ARMY OFFICIALS DID NOT DETER US FROM CONTINUING TO OPERATE I HAVE BEEN INVOLVED IN OTHER SITUATIONS THAT HAVE TURNED VERY NASTY BECAUSE OF THE UNION S PRESENCE BUT THE IMPORTANT THING FOR YOU TO REMEMBER IS THAT NOT ONCE IN OUR HISTORY HAVE WE KNUCK LED UNDER TO ANY PRESSURE FROM ANY UNION AT ANY SALVATION ARMY FACILITY , ( LOOK UP)55 AND WE DON T INTEND TO START HERE IF ANYTHING, OUR EXPERIENCE SHOWS YOU THAT WE ARE NOT BABES IN THE WOODS WHEN IT COMES TO DEALING WITH UNIONS WE HAVE HAD THIS EXPERIENCE BEFORE I'D LIKE NOW TO REVIEW A FEW BASIC FACTS AS WE SHOWED THE SLIDE PRESENTATION, BOTH TODAY AND LAST THURSDAY , BARGAINING IS A TWO WAY STREET THOSE OF YOU THAT BELIEVE THAT A UNION CAN COME IN HERE AND EXTORT MONEY FROM US IN THE FORM OF HIGHER WAGES OR EXORBITANT BENEFITS ARE OUT OF YOUR MINDS IF WE ARE FORCED TO GO TO THE BARGAINING TABLE WITH THE UNION, WE WOULD BARGAIN IN GOOD FAITH BUT BARGAINING IN GOOD FAITH DOES NOT MEAN THAT WE WOULD GIVE ANYTHING WHAT YOU HAVE TO REALIZE IS THAT THE REVE NUE THAT IS GENERATED AT THE WILLIAMS RESI DENCE IS GENERATED SOLELY FROM THE RESI DENTS MONTHLY RENT THERE IS NO POT OF GOLD THAT WE CAN DIP INTO AND PASS ON TO YOU IF WE HAD THAT POT OF GOLD , DON T YOU BELIEVE THAT WE WOULD BE PASSING IT ON TO YOU? (PAUSE ) THIS VERY FACILITY IS IN FACT , OPERAT ING AT A LOSS EVERY MONTH MAJOR LEIDY IS TRYING TO DO SOME THINGS THAT ARE GOING TO IMPROVE THAT FINANCIAL POSITION BUT IT'S NOT GOING TO BE AN EASY JOB ITS GOING TO TAKE SOME TIME AND TEAMWORK THE PEOPLE THAT ss The parenthesized stage directions as shown in the text of Howell s address are included to indicate his points of emphasis 961 LIVE HERE LIVE ON A FIXED INCOME THEY CANT JUST FORK OVER AN EXTRA ONE HUNDRED OR TWO HUNDRED DOLLARS A MONTH MORE BE CAUSE WE ARE HAVING TROUBLE OPERATING WITHIN THE BUDGET ( PAUSE ) AS FAR AS THE SAL VATION ARMY TERRITORIAL HEADQUARTERS GOES THE ONLY INVOLVEMENT THAT THEY HAVE WITH THIS FACILITY FROM A FINANCIAL STANDPOINT IS WHEN THERE IS A NEED FOR CAPITAL IMPROVE MENTS, SUCH AS, WINDOWS, ELEVATORS, ETC EV ERYTHING ELSE HAS TO BE COVERED BY THE REVE NUE WE RECEIVE FROM OUR GUESTS HERE I M GOING TO BE THE ONE WHO SITS DOWN AT THE CONTRACT TABLE ACROSS FROM THE UNION AND DECIDES WHAT HAPPENS HERE WITH REGARD TO WAGES AND FRINGE BENEFITS I CAN TELL YOU I'VE GOT A LOT OF EXPERIENCE DOING THAT AND I HAVE NEVER, I REPEAT, NEVER MADE A CONCES SION THAT WAS NOT IN THE BEST INTEREST OF THE SALVATION ARMY AND I M NOT GOING TO START IN THIS CASE I WOULD BARGAIN IN GOOD FAITH, BUT EVERY CONCESSION THAT I MADE TO THE UNION WOULD HAVE TO BE MATCHED BY A CONCESSION OF EQUAL VALUE FROM THE UNION AND FROM YOU, THE EMPLOYEES BECAUSE, AFTER ALL, THE UNION HAS NOTHING TO GIVE ME ALL THEY DO IS GIVE ME THINGS THAT YOU HAVE DEALING WITH THE UNION IS EXPENSIVE THE COSTS OF LEGAL FEES AND OTHER ADMINISTRATIVE PROCESSES WILL TAKE MONEY FROM THE WILLIAMS RESIDENCE BUDGET THAT COULD HAVE BEEN SPENT ON EMPLOYEES IF WE ARE REQUIRED TO OPERATE IN A WAY THAT COSTS US MONEY BECAUSE OF A UNION, WE ARE GOING TO FIND A WAY TO TAKE THAT MONEY BACK FROM SOME PLACE WITH REGARD TO STRIKES, YOU D BETTER BE SURE YOU UNDERSTAND WHAT STRIKES ARE ALL ABOUT IF THE UNION CAN T LIVE UP TO THE LOFTY PROMISE THAT IT IS MAKING TO YOU , IT HAS ONLY GOT TWO CHOICES ONE IS GO BACK DOWN AT THE BARGAINING TABLE AND THE OTHER IS TO STRIKE WE VE SHOWN YOU NUMEROUS SITUATIONS WHERE THIS UNION HAS STRUCK AT OTHER PLACES ITS A STRIKE HAPPY UNION IF IT STRIKES HERE TO TRY TO FORCE US TO MAKE UNREASONBLE CONCESSIONS, I WANT YOU TO KNOW THAT I WILL DO EVERY THING LEGALLY WITHIN MY POWER TO MAKE SURE THAT THIS FACILITY CONTINUES TO OPERATE ONE OF THOSE LEGAL OPPORTUNITIES IS TO REPLACE EVERY STRIKER WHO GOES ON STRIKE FOR ECONOM IC REASONS PLEASE DON T TAKE THIS THE WRONG WAY, LADIES AND GENTLEMEN, BUT IF YOU GIVE UP YOUR JOB IN AN ECONOMIC STRIKE I COULD RE PLACE YOU IN A NEW YORK SECOND I WOULDN T HAVE A CHOICE, I WOULDN T WANT TO BUT IF I M GOING TO ASSURE THAT OUR GUESTS HAVE A PLACE TO LIVE AND ARE FED , I WOULD HAVE TO REPLACE YOU I UNDERSTAND THAT THE UNION HAS MADE SOME VERY INTERESTING PROMISES SUCH AS TO DOUBLE YOUR WAGES AND TO PROVIDE YOU WITH 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD BENEFITS BETTER THAN THE ONES THAT YOU AL READY HAVE IF YOU BELIEVE ALL THEIR PROMISES, YOU RE PLAYING A GAME WITH YOURSELF AND IT S A GAME THAT YOU LL LOSE WE SHOWED YOU IN THE SLIDE SHOW WHAT A MISERABLE BUNCH THESE HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES IS THEY RE JUST AS BAD AS THE TEAMSTERS THEY RE INFECTED WITH PEOPLE ACCUSED OF COMMITTING CRIMES THEY RE UNDER INVESTIGATION BY SENATE COMMITTEES SOME OF THEIR OFFICIALS HAVE BEEN INDICTED YET AT THE SAME TIME, THE PRESIDENT OF THE UNION MAKES OVER $100,000 A YEAR AND MOST OF HIS HENCHMEN ARE VERY WELL PAID HOW IMPOR TANT DO YOU THINK YOU WOULD BE TO THEM? SIXTY PEOPLE SITTING UP IN THE UPPER WEST SIDE OF NEW YORK I DON T THINK YOU D BE VERY IM PORTANT TO ALL TO THEM, WHETHER YOU ARE WORKING OR NOT WOULD BE OF LITTLE CONCERN TO THEM BUT OF GREAT CONCERN TO US THE WILLIAMS RESIDENCE IS IMPORTANT TO THE SALVATION ARMY IT S IMPORTANT BECAUSE OF THE MANY, MANY ELDERLY PEOPLE THAT LIVE HERE YOU CONTRIBUTE TO THAT, AND TO THE EXTENT THAT WE ARE ABLE FINANCIALLY TO CONTINUE TO OPERATE THIS FACILITY, WE WILL DO SO MOST OF YOU KNOW THAT THIS BLOCK OF REAL ESTATE IS ATTRACTIVE TO CONDOMINIUM DEVELOPERS LOOK AROUND THE CORNER AT THE COLUMBIA WE HAVE HAD OFFERS IN THE NEIGHBORHOOD OF $14 TO $18 MILLION DOLLARS TO SELL THIS BUILDING THOSE OF YOU IN MAINTENANCE ARE AWARE THAT THIS BUILDING IS IN NEED OF MAJOR REPAIRS SUCH AS PLUMBING WINDOWS ETC WHETHER WE CAN CON TINUE TO AFFORD TO MAKE THESE REPAIRS WILL DEPEND UPON SUCH FACTORS AS OUR LABOR COSTS THIS IS NOT A THREAT TO SHUT THE BUILDING DOWN WE DO NOT INTEND TO DO THAT THERE ARE AS YOU CAN SEE MANY CONSIDERATIONS AND FACTORS THAT GO INTO OPERATING THIS FACILITY (PAUSE LOOK UP) LADIES AND GENTLEMEN A UNION IS NOT A CURE ALL I WILL ADMIT THAT WE HAVE PROBLEMS HERE EVERY BUSINESS AND ORGANIZATION IN THE UNITED STATES TODAY IS FACING PROBLEMS THE PROBLEMS THAT WE HAVE WE CAN WORK OUT OURSELVES YOU VE GOT A NEW ADMINISTRATOR HERE YOU HAVEN T GIVEN HIM A CHANCE HE S GOT A TOUGH JOB TO TRY TO BRING THIS FACILITY AROUND BUT HE'S GOING TO OPERATE FAIRLY AND IN AN EVENHANDED WAY I'M FAMILIAR WITH THE PAST THREE YEARS AND DURING THE TIME THE PREVIOUS ADMINISTRATION WAS HERE, MANY OF THE THINGS THAT SHOULD HAVE HAPPENED DIDN T FOR THAT I APOLOGIZE BUT AT THE SAME TIME I DON T FEEL THAT THE SALVATION ARMY SHOULD APOLOGIZE FOR THE OTHER THINGS IT HAS DONE FOR YOU SUCH AS PROVIDE YOU WITH A VERY EX CELLENT PACKAGE, AND A PENSION PLAN AND A WAGE STRUCTURE THAT IS COMPETITIVE FOR THE JOBS THAT ARE PERFORMED SURE WE D LIKE TO DO MORE WE D LIKE TO PROVIDE HIGHER WAGES TO THE EXTENT THAT WE CAN IN THE FUTURE, WE WILL PROVIDE HIGHER WAGES, BUT THE UNION S PRESENCE HERE IS NOT GOING TO FORCE US TO DO ANYTHING THAT WE CAN T AFFORD TO DO OR THAT IN FACT THAT WE DON T WANT TO DO WE ALWAYS FOUND THAT THE BEST WAY FOR US TO WORK OUR PROBLEMS OUT IS BY WORKING DIRECTLY WITH OUR EMPLOYEES AND THAT S WHAT WE WANT TO CONTINUE TO DO WITH YOU HERE THINK ABOUT THE UNION ELECTION THINK ABOUT ALL THE MANY BAD THINGS IT COULD BRING TO YOU NOT TO THE SALVATION ARMY, BUT TO YOU THE EM PLOYEES THIS WILL BE THE MOST IMPORTANT ELECTION YOU WILL EVER VOTE IN, AND, IN MY FIRM OPINION, THE BEST VOTE THAT YOU MAKE IS A VOTE FOR YOU AND AGAINST THE HOTEL EMPLOY EES AND RESTAURANT EMPLOYEES AND ALL THE PROBLEMS THAT THEY COULD BRING TO US Howell concluded his address by urging the employ ees to vote and by reminding them that the long stressful period of the campaign would end only if the Union lost He finished by telling the employees IF THE UNION WINS THE PROPAGANDA, AND THE PULLING APART, THE TENSION THAT EXISTS NOW MAY CONTINUE AND WHO KNOWS HOW LONG IT WILL CONTINUE SO PLEASE VOTE AND VOTE NO AGAINST THE UNION THANK YOU At the conclusion of Howell s speech, he invited ques tions from employees At this point in the 23 May meet ing, a female employee, referring to the part of Howell s address where he had stated that employees would be re placed in the event of an economic strike asked how the facility would replace 60 to 70 employees Howell re plied that the Salvation Army immediately would bring in supervisors from its 15 centers in the metropolitan northern New Jersey area It then would go through the 300 applications it normally had on file and would hire people for the strikers jobs Leidy then thanked Howell and the employees for coming and the respective meetings of 23 and 24 May ended b Discussion and conclusions The 82 slides shown to employees during the paired 23 and 24 May afternoon and morning meetings, respective ly, Leidy s accompanying explanations and Lieutenant Colonel Howell s prepared speech that followed present few matters not previously considered here Many of the slides and accompanying explanations merely related to reproductions of news magazine covers and parts of stones that had been carried in magazines and in newspapers, and which focused on union difficul ties These, although uncomplimentary to unions in gen eral and to HERE in particular were openly distributed media features already are in the public domain Other slides depicted documents relating to the Union s fi nances, its powers to raise and administer funds and to the compensation of principal union officers Such docu SALVATION ARMY RESIDENCE 963 ments included relevant portion of HERE's constitution and bylaws and 13 slides showing facts of the Labor Or ganization Annual Report, Form LM 2, filed by Local 517-S with the U S Department of Labor as required under the Labor Management Reporting and Disclosure Act of 1959 56 In connection with the showing of these LM 2 form slides, Leidy pointed not only to the there listed disbursements to the Union s officers as illustrative of how expensive it was to have such officers, he com paratively indicated from the expense lines on the LM 2 form that nothing had been reported to the Government as spent by the Union on behalf of individual members The foregoing statement , although found to be a misrep resentation was considered by Board majorities that de clined to set aside elections pursuant to objections filed in Midland National Life Insurance Co 57 and in Mattera Litho Inc 58 Member Jenkins, dissenting in Mattera Litho,59 pointed out the nature of the employers misrepresentation in that case, which is the equally applicable here The [Employers] leaflet emphasized the lower dollar amount entered on line 71 , which reflects cash disbursements on behalf of individual mem bers," and contrasted these figures with the amounts paid to union officials and the amounts for 'enter tainment ' However, the leaflet conveniently failed to mention that the Labor Department's instructions for completing line 71 provide that all normal op erating expenses are excluded from disbursements on behalf of individual members By omitting this explanation, the Employer disguised the fact that normal operating expenses are also incurred for the benefit of all members and it seriously distorted the manner in which [the Union] and its International spend union members money Although the Union s LM 2 form was used by the Re spondent in the present case to draw the same inaccurate comparisons concerning Union expenditures on behalf of officers as compared to individual members consistent with Midland National Life Insurance Co and Mattera Litho, such misrepresentations are in materials found to be clearly identifiable by employees as campaign props ganda, constitute neither promise of benefits nor threat of reprisal, and do not appear to be remediable under the Act The 23 and 24 May slide presentations also included projections of a series of newspaper articles referring to various investigations of HERE by law enforcement agencies and by a U S Senate subcommittee concerning mob influence, ties of various union officials to organzied crime and the taking of kickbacks The slides included a 56 29 U S C A § 401 et seq 57 263 NLRB 127 (1982) 58 267 NLRB 375 (1983) As representation cases neither National Midland Life Insurance Co supra, nor Mattera Litho Inc supra specifi cally considered whether like employer conduct with respect to the Union s LM 2 form was in violation of Sec 8(a)(1) of the Act However in refusing to set aside elections in these cases the Board indicated that the employers statements in this regard could be evaluated by employees and did not warrant remedial action 59 267 NLRB 375 supra at 376 newspaper clipping quoting a U S Senator that ' H E R E is one of the most corrupt unions on the US ', excerpts from the Daily Labor Report that HERE s international president had been handpicked by organized crime that a HERE official had retired on a large union salary after being convicted for misuing union funds, and that that convicted officers successor had been connected to a sweetheart agreement, to restau rant bombings, threats, and murder The General Coun sel does not contend that the media articles depicted in these slides were not genuine reproductions or that they had been altered before being shown Rather the Gener al Counsel principally argues that by so tying the Union to organized crime, corruption and violence, the employ ees are presented with the futility of joining or support ing the Union, and that such statements also unlawfully tend to intimidate employees away from supporting the Union Representations of the type made here, however, have been held by the Board to be valid expressions of the Employers opinion protected by Section 8(c) of the Act and to constitute legitimate agreement 60 Leidy s references to the prospect of strikes at the 23 and 24 May meetings again did not proclaim their inevi tability should the Union become bargaining representa tive and, as found above, were violative of the Act 611 As also found above, Leidy s statements while narrating the slides that should there be a strike, the Respondent had the right to replace employees who participated62 and that union could fine employee members who abandoned the strike and attempted to return to work As Leidy s statements concerning union fines, when made accurate ly reflected the law as it existed at the time, before issu ance of Machinists Lodge 1414 (Neufeld Porsche Audi),63 which decision restricted the right of striking unions to fine unsupportive members At the 23 and 24 May sessions Leidy also repeated earlier campaign statements to the effect that the em ployees could not be guaranteed even by the NLRB that they would retain all existing wages and job benefits after bargaining, or that existing terms and conditions of employment could only go up from where they were Such employer comments have been found above to be lawful Accordingly noting that Leidy s lengthy slide narra tion on 23 and 24 May included no promises of benefit or threats of reprisal and that it reiterated statements found above to be lawful, I find that Leidy s commen tapes during the slide presentations on 23 and 24 May were not violative of Section 8(a)(1) of the Act 80 Elano Corp 216 NLRB 691 700 (1975) and cases cited in fn 8 St Anthonys Center 227 NLRB 1777 1785 (1977) The situation during the 23 and 24 May meetings where the Respondent lawfully related the Union to organized crime and its indicia differs from that of the above described April meeting where the Respondent s simple statement that the Union belonged to the Mafia was found unlawful under Southland Knitwear 260 NLRB 642 655 (1982) In the May meetings the Respond ent did not just make an unsubstantiated inflammatory statement as in April but expressed its views by way of materials already placed in the public domain by the news media si Baton Rouge General Hospital supra 62 Baton Rouge General Hospital supra Golden Fan Inn supra 83 270 NLRB 1330 (1984) 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I similarly conclude that Howells prepared speech read verbatim at the 23 and 24 May meetings after the slide show was lawful in its content The relevant text of that speech has been quoted above 64 Howell s speech, too, repeated subject matters previously raised by Leidy and Garrel during the Respondents countercampaign and which have been found above to be unlawful Such remarks include Howell s identification of himself as a hard Salvation Army negotiator who, although ready to bargain in good faith would make no unrequited conces sions Howell s statement that employees could lose ex isting wages and benefits through negotiations that if the Union cannot keep its lofty promises, it either only could back down at the bargaining table or strike as it had at other places, that the Union is strike happy,65 that the Respondent could and, if necessary, would replace all economic strikers It is noted that Howell s statement did not go beyond the provisions of law in that he did not say, that such economic strikers necessarily would be permanently replaced losing all rights to their jobs Howell's further comments during his speech that the Respondent, had illustrated in the slide show what a miserable bunch HERE is that it is infected with people accused of committing crimes, that it is under Senate committee investigation, and that it is burdened by indicted and overpaid officials, in the applicable con text were lawful, protected expressions of the Respond ent s opinion 86 Howell came closest to breaching the line of unlawfulness when he reminded the employees how attractive the block occupied by the Williams Resi dence was to real estate developers and that the Re spondent had received offers of $14 to $18 million to sell the building while maintenance employees knew of the need for major repairs to the building However, Howell then retreated from this theme expressly declaring that his words were not a threat to shut down the building, that the Respondent had no intention of doing so and that many considerations went into operating the facility For reasons further explicated below I find nothing unlawful in Howell's prepared speech His response when asked by an employee at the end of the 23 May meeting how the Respondent would replace 60 to 70 em ployees should they join an economic strike, to the effect that the Respondent would bring in supervisors from other nearby locations and hire replacements from the 300 job applications normally on file merely described the method to be used to continue operations in such an eventuality As found above, employers so circum stanced may lawfully inform their employees of their in tention to -replace economic strikers, and Howell s answer in this regard merely augments the exercise of that right by addressing the means by which such a pur pose might be achieved 64 Howells testimony that he adhered to the prepared text of his speech is accepted as the text substantially conforms to descriptions of his remarks given by the General Counsels employee witnesses 85 Consistent with above cited authority I find that these statements of the possibility of a strike do not constitute an unlawful prediction that a strike inevitably would result 66 Newsday Inc 274 NLRB 86 supra at 1785 As Administrative Law Judge Herzog noted in his Board approved decision in Walter Carpet Mills Inc 67 That employees hearing such a speech might, as it appears to me they did, later recall a threat or a prediction in somewhat stronger terms than it was made is not surprising For, clearly, the speech was designed to evoke strong emotions among the em ployees, and to arrest their movement toward the Union As such, the speech serves as evidence that the Company harbored strong sentiments against the Union But that is not the question at issue For it has been long settled that Section 8(c) of the Act of fords protection to an employer's expression of opinion concerning unions so long as the expression remains free of threat of reprisal or force or prom ise of benefit Instead, since the Supreme Court s decision in N L R B v Gissel Packing Co Inc, 395 U S 575 (1969), the Board has developed specific guidelines for distinguishing between protected speech and proscribed threats or promises of bene fit ' 7 The Court set out a distinction between lawful predictions and unlawful threats or promises as follows [A]n employer who has control over that relationship [with employees] and thereof knows it best cannot be heard to com plain that he is without an adequate guide for his behavior He can easily make his views known without engaging in brink manship when it becomes all to easy to overstep and tumble [over] the brink At the least he can avoid coercive speech simply by avoiding conscious overstatements he had reason to believe will mislead his employees Id at 620 Judge Herzog s above analysis is applicable here as well The record contains varying accounts by the Gen eral Counsels employee witnesses concerning matters not substantively denied by the Respondent which, con trary to the General Counsel have been found above to be lawful Accordingly, the record contains much tests mony by employee witnesses concerning statements made by the Respondents officials to the effect that if the Union came in, bargaining would go to zero and in the bargaining process employees might lose benefits presently enjoyed that the Respondent had the right to replace employees who participate in any economic strike and that such a strike might result if negotiations do not produce agreement Certain other testimony by employee witnesses has been found unlawful This in cludes the Respondents references linking HERE with the Mafia Other more ambiguous and less coercive char acterizations by the Respondent as described by witness for the General Counsel and Respondent alike, reflect mg on whether the Union is corrupt its officers overpaid and dishonest, and the Union and its parent organization HERE prone to strikes violence and other difficulties have been found above to be lawful expressions of opin ion protected under Section 8(c) of the Act It has been determined throughout that although the Respondent in its preelection propaganda repeatedly referred to the 67 259 NLRB 691 694 (1981) SALVATION ARMY RESIDENCE prospect of a strike should the Union come in and no ready collective bargaining agreement be reached the Respondent did not cross the line into unlawfulness in this regard by telling its employees that a strike would be inevitable in the event of unionization In subsuming certain employee testimony into the Re spondent s accounts of same, I find that here as in Walter Carpet,66 differences of detail can be attributed to a lack or fluency in the English language on the part of a number of the General Counsels witnesses, and conclude that much of what is factually disputed here as having occurred at the Respondents preelection meetings is based on misunderstanding rather than on the conscious desire on the part of witnesses to mislead Bearing in mind considerations of relative language difficulties and the degree to which precision and accuracy seemed either possible or of importance to each witness, I have evaluated their testimony While it has not been neces sary or practical to separately present and discuss the testimony of each of the many employee witnesses, their testimony has been considered as has the substance of each issue of fact and raised and developed in the record 6 Further alleged unlawful conduct at the Respondents preelection meetings-facts and conclusions A number of employees testified to additional matters as having occurred during the Respondent's preelection meetings These are discussed below 1 Dietary employee Michael W Wallace testified that at the first May meeting he attended, Leidy told the group that he was aware that some of the employees must have signed authorization cards by then or else the Union still would not be outside Leidy expressed the hope that the employees knew what they were getting into because it was going to be rough along the way Wallace further testified that Leidy also told the em ployees at that meeting that if the Union were to come in and if there were no agreement during bargaining on wages, the employees would have to support the Union s demands and there would be a strike or the Salvation Army could just close the building 69 The Salvation Army was not obliged to honor the Union s demands Leidy announced that the Union could not guarantee the employees jobs which came from the Salvation Army Although I find Wallace to be a very credible witness whose testimony was consistent and detailed and who was not successfully impeached by the Respondent his testimony concerning Leidy s statements about strike possibilities in the event that agreement was not reached during bargaining and with respect to the Respondent s right to replace employees who should join such an eco nomic strike have been considered above and, in the ap plicable contexts, have been found lawful However, I credit Wallace s further testimony that Leidy had threat ened that if the Union came in, and should demand too 68 259 NLRB supra at 694 and fn 6 69 Wallace s testimony concerning the Respondents threat to close was corroborated by employees Pearlma McQueen House Thomas Welch William Ramos and Kenneth Harris although with some differ ences in detail 965 much money, the Salvation Army could just close the building Such threats to close were consistent with and a part of the Respondents antiunion campaign As found above, a threat to close the facility was unlawfully im plied by Garrel in his successive descriptions to virtually all unit employees of the closing of the Eventide Nursing Home after unionization As will be found below, threats to this effect also were unlawfully made by two supervi sors besides Leidy and Garrel in the period before the election, incidents that are not refuted Accordingly, it would appear that Leidy, as described by Wallace and other employees, had threatened that the Respondent, should it be deemed expedient, could close the Williams facility if the employees chose the Union as bargaining agent Leidy s threat to close, which is found here to have occurred, violated Section 8(a)(1) of the Act Garrel then spoke, telling the employees that Booth Memorial Hospital had a union unwanted by 50 percent of the employees and that that hospital was trying to get rid of it There had been conflict there and the same thing could happen at our place ' something that Garrel did not want to see happen In disagreement with the General Counsel, I find that Leidy s statement to employees that he hoped that the employees knew what they were doing in supporting a union because it was going to be rough along the way to be too vague and ambiguous to a threat of nonspecific reprisal for choosing the Union The comment was not even necessarily a reference to future action by the Re spondent 40 I also conclude that Garrel's reference to union related conflict among employees at Booth Memorial Hospital and to his desire to see that avoided at the Williams Res idence was not a violative coercive statement but an ex pression protected under Section 8(c) of this Act It has been found above that other Employer statements refer ring in similar terms to past and possible potential union sponsored violence are protected Here the term vio lence' was not even used Accordingly, I find that Gar rel s statement concerning the potential for Booth Me monal-type conflict at the Williams Residence did not violate Section 8(a)(1) of the Act 2 Wallace and employee Christopher Delia? i testified that at the end of one of the May meetings Leidy dis tributed stapled, printed booklets, entitled Union Prom ises Warranty Coupons and wooden nickels to the as sembled employees Each warranty coupon was a narrow strip of paper containing an Employer prepared promise attributed to the Union by the Respondent at the top and a signature line and date line at the bottom On the second page of the coupon booklet was a note to em ployees suggesting that to protect themselves against rash promises by some irresponsible union organizer, the employees get union promises guaranteed in writing by 70 In contrast see Maxwells Plum 256 NLRB 211 216 (1981) in which an employers more pointed declaration to its employees that they would regret joining the Union was found to be an unlawful threat of nonspecific reprisal 71 Delia who testified only before Judge Ohlbaum was employed in the Respondents maintenance department for 1 1/2 years ending 26 May the final day of the representation election His testimony was incorporat ed into the present record by stipulation 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD having a union official sign and date each of the enclosed warranty coupons Twelve such coupons followed each headed by the words I Guarantee These read I Guarantee you will get a pay raise of cents an hour in the very first contract we get with your company [m]y union will pay your hourly rate of pay, commencing with the first day off from work, in the event you lose any time from work because of labor trouble or strikes [t]here will be absolutely no fines or assessments against you by my union [t]here will be no layoffs regardless of whether or not your company has work to do [m]y union will pay for the support of your family and all of their expenses if you are thrown out of work because of strikes called by the union [n]o one will have to work on weekends, float or rotate if they don t want to, once the Union get in [o]nce you became a member of my union you will not be required to abide by the Constitution and By Laws of my union, because I have not given you a copy or explained what it means to you [i]f you are called out on strike you will get your job back at the end of the strike, regardless of whether you have been permanently replaced by your company [t]hat should a strike be called, and you choose to work, that you will not be fined by my union for crossing the picket line [y]ou will not lose anything you now have The last page of the coupon booklet read UNLESS A RESPONSIBLE UNION OFFICIAL HAS SIGNED EACH COUPON YOU SHOULD VOTE NO The heads side of the wooden nickel also distributed at the time showed an Indian head and the words Wooden Nickel, in the inner of two concentric circles The outer circle bore the legend `Wooden Nickels like Union Promises are Worthless The obverse or tails side read It Makes Sense to Vote NO UNION In distributing these items, Leidy first opened the coupon booklet and read the above described coupons to the employees When giving the employees the wooden nickels, Leidy declared that the Union's promises are just like this wooden nickel They are worthless because the Union can promise you the world but cannot guarantee you anything The above items, which I find the Respondent distrib uted to employees during at least one set of the paired preelection meetings contains neither promises of benefit nor threats of reprisal by the Respondent to discourage employee support for the Union At most, the distributed materials were a more dramatic way of informing the employees that the Union could make a lot of promises that it might not necessarily fulfill 72 The Respondent in 72 Representations by employers to employees before a representation election to the effect that a union might not be able to fulfill its campaign preparing these hand outs, then went on to raise a number of topics as subjects of these putative union promises, conduct that has been found above to be lawful Accordingly, I find that the above distributed materials do not violate Section 8(a)(1) of the Act 3 Employee Michael W Wallace further testified that several hours after attending the meeting where the above described coupons and wooden nickels were dis tributed, he encountered Leidy by an elevator in the resi dence According to Wallace, Leidy told him that he knew that there was going to be a union meeting that night, suggested that Wallace take those (warranty) cou pons with him to the meeting and asked if Wallace thought that the union officials would sign them Wal lace replied that he doubted it and inquired why Leidy did not ask them Both men laughed As Wallace s account of the above incident at the ele vator is uncontradicted, I find that in telling Wallace that he knew about the union meeting that night, and infer ring expectation of Wallace s attendance there, Leidy created an impression that Wallace s union activities were under surveillance in violation of Section 8(a)(1) of the Act Since Leidy, as found, repeatedly expressed to em ployees his strong opposition to the Union on a number of occasions in unlawful terms, the surface geniality of his exchange with Wallace did not serve to meliorate the coercive nature of his remarks 4 From the combined testimony of certain General Counsels employee witnesses 73 Leidy began the meet ings of 23 and 24 May, not as he described by politely thanking the employees for attending and by telling them that they would be given information about the Union in the form of a slide presentation and in a talk by an officer from headquarters but in harsher terms Ac cording to these witnesses, Leidy opened these sessions by telling the respective groups of employees that he had heard that they had signed union cards He did not want the Union to tell him how to run the residence If the employees selected the Union during negotiations he would not agree to the Union s proposal for higher wages and there was nothing the Union could do about it The employees were told that they should not join the Union that unions were no good and that Leidy could not have one at the Williams Residence If the Union came in, the residence would have to be closed or sold Most of the employee recollections as combined above were fragmentary and incomplete Leidy as it has been found from his own testimony at various times did take promises have been found lawful See Knspy Kreme Doughnut Corp 245 NLRB 1053 1056 (1979) The literature in issue here contained certain hypothetical possibilities rather than threats of what the Respondent would do if the Union was chosen These were cast in the sense that the Union could not without employer agreement bung about desired con ditions referred to such as pay raises or freedom from weekend work At the same time the Union could not or perhaps would not guarantee against certain negative possibilities such as the costs to employees of any future strikes or other referred potentialities 72 The following is based on a synthesis of the testimony of employees Wallace Welch House Delia Harris Malcolm Ford Victor Simeon and Ainsworth Hibbert The testimony of Delia and Hibbert who ap peared only before Judge Ohlbaum has been incorporated into the present record by stipulation SALVATION ARMY RESIDENCE a hard line before employees on the prospects of ready contractual agreement with the Union should it be se lected, and spoke of the need for the Union in very nega tive terms As noted differences in the parties accounts can be laid to language and comprehension difficulties on the part of certain employee witnesses Accordingly while I generally credit Leidy s more-coherent account as to the prepared content of these meetings, I, nonethe less, credit so much of the employees' testimony as re lates to threats to close the residence if the Union should come in as consistent with the Respondents tactics dunng the campaign A strongly implied threat to close was at the core of Garrel's 19 May slide presentations in telling the story of the former Eventide Nursing Home and, as will be considered below, direct threats to close if the Union came in also were made to employees by Supervisors Catherine Dempsey and Charles Scales of the maintenance and dietary departments, respectively Accordingly, I find that by Leidy s threat at the 23 and 24 May reelection meetings to close the residence if the employees chose the Union, the Respondent further violated Section 8(a)(1) of the Act 7 The 26 May postelection meeting-facts and conclusions On the morning of 26 May, shortly after the election ended and the issued tally of ballots showed that the Union had not been successful, the employees were sum moned to the lounge to meet with Leidy 74 According to the General Counsels witnesses Leidy thanked the employees for enabling him to win the elec tion and told them that now the election was over, the employees would get what was coming to them in wages and benefits In response to an employee question as to the whereabouts of their benefits and pay Leidy an swered that some of the employees had been asking about money, but he could not talk about this yet be cause the election results had just been announced and the Union still had it in its hand He had not given raises to the employees who asked about them but when the time came and he was ready he would give all em ployees good raises and increased benefits The General Counsel contends that the above 26 May conduct was unlawful in that the Respondent, through Leidy had informed its employees that they were being denied wage increases because of the Union s presence at its facility, and also because employees were promised increased pay and benefits to induce them to abandon support for the Union in the event of a second election Leidy testified in this regard that on 26 May, after the polls finally were closed, he conducted a meeting of about 35 to 40 employees from the housekeeping, die 74 There is some difference of detail in the accounts of various employ ees with respect to the 26 May meeting Victor Simeon testified that the meeting was attended by all residence employees James N Gibbons re called that only around 20 of the Respondents employees and a number of supervisors were there Unlike Simeon Gibbons testified that Leidy began the meeting by playing We Shall Overcome on a musical instru merit and that what took place occurred not just at a single 26 May meet ing but during two such meetings on 26 May and at a second gathering held sometime between 6 and 13 June From the entire record however it is clear that the only such postelection meeting was held early on 26 May 967 tary, and maintenance departments in the residence lounge He thanked the employees for coming, apolo gized for having interrupted their work, and stated that he wanted to share with them the information that the Union s efforts were over The election had been com pleted and that as far as Leidy knew the Union had lost and there would be no union Leidy declared that, per haps, during the Salvation Army s attempts to resist the Union s organizing campaign, there might have been some differences of opinion or divisions Leidy expressed the hope that these could be put behind and asked for unity and harmony in the workplace Leidy related that an employee then had asked what future wage adjustments might be considered Leidy re plied that, traditionally at the Williams Residence wage adjustments are made during the first pay period in Oc tober when management prepares the annual budget Any adjustments, accordingly would occur in October Leidy then asked the employees to go back to work 75 Noting that Garrel only partially corroborated Leidy's account of the 26 May meeting, I do not credit Leidy s account Rather, I find that he, in effect, did then prom ise the employees pay raises to become effective later, but could not then speak of the matter because of the Union's continued presence Consistent with this it will be found below from uncontradicted testimony that, but a few weeks before, Leidy, in denying the request of em ployee Clarence Greaves for a pay increase also had un lawfully placed the onus for such refusal on the Union s presence Also, as noted, Leidy s general credibility was materially compromised during his testimony concerning the challenged ballot of Bart Burton, when he was re peatedly impeached Accordingly I find from the credited evidence that Leidy s statement to employees immediately after the election to the effect that they would get what was coming to them in wages and benefits but that he could not yet discuss such matters because of the Union s con tinuing presence positioned the Respondent to gain an advantage in the event of a new election in violation of Section 8(a)(1) of the Act 76 Smith & Smith Aircraft Co 264 NLRB 516 fn 2 (1982) 77 The Respondents actual procedure as described by Leidy of granting pay and benefits improvements only in early October in conjunc tion with its annual budget process would not preclude the above finding since Leidy, of course could have told the employees whatever he considered expedient and did so 45 Garrel recalled that the meeting took place immediately after the election and was attended by nearly all employees All Garrel could re member of the event was that Leidy had told the group that now that the election was over the Salvation Army wanted to bind together as a team and to go on from there 76 Tipton Electric Co 242 NLRB 202 213 (1979) enfd 621 F 2d 890 (8th Cir 1980) r' At the same time in blaming the Unions continued presence for its delay in discussing and implementing a new wage and benefit program the Respondent further violated Sec 8(a)(1) of the Act 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Alleged unlawful conduct affecting individual employees-facts and conclusions a Incidents affecting Michael W Wallace Apart from the events at the above described preelec tion meetings, the General Counsel contends that during two separate conversations between employee Michael W Wallace and his immediate dietary department super visor Catherine Dempsey, Dempsey, respectively, un lawfully discouraged Wallace from participating in a Board proceeding and threatened Wallace that the rest dence would be closed if the Union should win the elec tion Wallace s testimony concerning both of these mci dents is uncontradicted 1 Wallace testified that the first such conversation oc curred on or about 7 or 11 April after he had appeared as a witness for the Union at the representation hearing in Case 2-RC-19504 As Wallace was supposed to be at work on the day he attended the hearing he, according ly, had called the residence to say that he would be late However, the hearing had taken all day and Wallace was unable to report to work When Wallace later again called the residence he spoke to a fellow kitchen worker who was upset at Wal lace s absence Wallace told the employee that he had called twice to advise that he was being increasingly de layed and now did not think that he could come to work because of the lateness of the hour The worker, telling Wallace that Dempsey was busy did not want to comply with Wallace s request to call her to the tele phone Wallace compelled the employee to call Dempsey and made an appointment to speak with her the next day On the following afternoon at 1 o clock Wallace met with Dempsey in her office Wallace told Dempsey that he had not come to work the preceding day having called in He related that Dempsey asked if Wallace had had to go When Wallace replied that it had been neces sary to attend the hearing Dempsey asked if he could not have said no Wallace answered no Dempsey then told Wallace that she really wished that he had not gotten involved Wallace told her that it was too late it was something he had had to do He had been asked and so he had gone Dempsey replied that Wallace knew that it was going to be rougher now because they are going to be watching you Wallace said that he knew He then left her office I find that Dempsey s undisputed repeated questioning of Wallace on that occasion as to his need to attend the Board hearing together with her further statement that it was was going to be rougher now for Wallace be cause they" were going to be watching him to have been coercive in violation of Section 8(a)(1) of the Act even though Wallace had been a visibly active union supporter Dempsey's words carried the message that the Respondent was so displeased with Wallace s open activ ity as possibly to retaliate against him 78 Here, the viola 78 Purolator Products 270 NLRB 694 fn 2 (1984) tion was even more pronounced than in Purolator Prod ucts, supra as the activity that Dempsey tried to discour age Wallace from pursuing was attendance at a Board representation hearing 2 Wallace testified that during the week following the above conversation, he returned to Dempsey s office for some work supplies While there Dempsey told him that she had heard some rumors that the Salvation Army might be selling the building and that there were people looking to buy the building If the Union came in, there may be a chance that the Salvation Army was going to sell Wallace replied that he had heard the same thing from other employees In finding that Dempsey's statement to Wallace that the Salvation Army might sell the residence building should the Union come in violative of Section 8(a)(1) of the Act as a threat to discourage union activity and sup port, it is not relevant that Wallace also may have heard fellow employees speculate to the same effect As one of the supervisory department heads through whom the Re spondent s policies were expressed, Dempsey s statement was cloaked with official significance and, therefor was coercive in its effect 3 Wallace also testified without contradiction that in April, a day after attending the representation hearing that had been the subject of his above conversation with Dempsey, he went to speak to Leidy in the latter s office They were alone Wallace told Leidy that he had heard that there was going to be a fight between two of the residence workers and that he wanted Leidy to know that the fight was not union related Wallace explained that since Leidy had stated that he did not want any thing like that to happen, Wallace since he was involved with the Union had taken it upon himself to determine this because Wallace had not wanted anyone to say that the Union was making employees fight each other Leidy told Wallace that he was a smart guy and asked how come he had gotten involved with the Union Wal lace replied that the Union had asked for his help and he had given it He had not brought in the Union but the Union had wanted his help and he had given it Leidy thanked Wallace for his cooperation In Rossmore House 79 the Board rejecting a per se ap proach to interrogation found that an employers ques tioning of open and active union supporters about their union sentiments in the absence of threats or promises did not necessarily violate the Act Such determinations would rest on case by case analysis which considered the circumstances surrounding disputed interrogations and which did not ignore the realities of the workplace 80 Here, Wallace had initiated the conversation and raised the topic of the Union, presenting himself to Leidy as a Local 517 adherent with some union related knowledge that he had come to discuss Wallace in effect had invited some relevant response Leidy s reply contained neither threat or reprisal nor promise of bene fit because of Wallace s union activities Accordingly, I find that Leidy s question to Wallace as to how come a 79 Rossmore House 269 NLRB 1176 (1984) enfd 760 F 2d 1006 (9th Or 1985) Sunnyvale Medical Clinic 277 NLRB 1217 (1985) 80 Sunnyvale Medical Clinic supra at 1217 SALVATION ARMY RESIDENCE 969 smart guy such as himself had become involved with the Union does not constitute unlawful interrogation in violation of Section 8(a)(1) of the Act b Incidents affecting Clarence Greaves 1 Clarence Greavess i testified that on 5 May he went to Leidy s office and asked for a raise Leidy replied that as a union was coming in, he could not give Greaves a raise 82 Leidy s testimony in response, that he could not recall having discussed the Union with Greaves before the election, is too equivocal in comparison to Greaves' clear, affirmative accounts of this and of a second con versation with Leidy described below to constitute of fective denial Therefor, Greaves' testimony concerning both conversations is credited As stated in Smith & Smith Aircraft Co 83 [i]n general, during a representation campaign an employer must proceed as he would have done had the union not been on the scene The Gates Rubber Company, 182 NLRB 95 (1970), Wells Fargo Alarm Services a Division of Baker Industries Inc, 224 NLRB 1111, 1113 (1976) When an employer prior to a union campaign, has an established wage increase policy, the suspension of that policy during the union campaign will normally be found to vio late Section 8(a)(3) unless the employer postpones the increase only for the duration of the campaign and informs the employees at the time the postpone ment that the sole reason for its action is to avoid the appearance that it seeks to intervene in the elec tion and the Board finds that this in fact was the reason Centre Engineering Inc, 253 NLRB 419, 421 (1980), Progressive Supermarkets Inc, 259 NLRB 512 (1981) If the employer does so inform the employees, and cannot be said to have placed the onus for postponement on the union the post ponement will not be found to violate the Act See Uarco Incorporated, 169 NLRB 1153 (1968) Here Leidy put the burden for his rejection of Greaves' pay request solely on the Union Although Greaves' application for a raise did not mesh with the Respondents policy for granting pay increments in Oc tober when, as noted it prepared its budget, Leidy net ther rejected the request on that ground nor did he ex plain to Greaves that his raise was being turned down to avoid the appearance of interference with the upcoming election Rather, Leidy s reply merely informed Greaves 81 Greaves 28 June discharge with James N Gibbons is alleged as un lawful in the complaint A maintenance employee under that depart ment s supervisor Charles Scales Greaves first was employed at the Re spondent s facility in May 1978 82 Although the General Counsel does not contend that a cyclical pay raise then was due she argues that Leidy s reply violated Sec 8(a)(1) of the Act because it indicated to Greaves as an employee that no raise would be forthcoming solely because of the union campaign 83 264 NLRB 516 fn 2 (1982) Also see Times Wire & Cable Co 280 NLRB 19 (1986) which although factually distinguishable from the present case reaffirms the applicable rule that it is unlawful for an em ployer in denying a wage increase to seek to influence employee senti ments by placing the onus for its action on the union that his pay increase was being denied strictly because of the Union s organizational campaign, leaving open an in ference that his pay request might have been differently considered had there been no union I, therefore, find that the Respondent violated Section 8(a)(1) of the Act in this regard 2 Greaves also testified that about a week after Leidy had turned down his wage request and approximately 2 weeks before the election, he was approached by Leidy in the residence dining room Leidy asked him what was going on When Greaves asked about what, Leidy re plied about the Union Greaves told Leidy that he should not ask him anything about the Union, he had his family to support, that he will try to make a living be cause he vote for the Union Noting that Greaves had not been an open or conspic uous union supporter that Leidy s questioning of him had occurred at a time when the Respondent was ex pressing to employees its strong hostility to the Union both at meetings of employees and to individual employ ees, and that, as found above the Respondent, about a week earlier, had unlawfully blamed the Union for its re jection of Greaves pay request, I conclude that Leidy s interrogation of Greaves was in violation of Section 8(a)(1) of the Act 84 c Incident affecting Jose Vasquez Jose Vasquez85 related that on 25 May around 2 p m ,86 he and coworker Michael Wallace left the Re spondent s premises to go to a nearby camera store Both men were on break when they left the building When they returned approximately 5 minutes later Majors Leidy and Garrel were standing in front of the building Leidy told the two men that he wanted to speak with them Accordingly, Leidy, Wallace, and Vas quez went to the kitchen where Leidy told Wallace that since he had received permission to go outside (the building), he could leave Wallace returned to work leaving Leidy alone with Vasquez Leidy asked Vasquez if he had permission to go outside When Vasquez said he did not Leidy told Vasquez that he would dock him 15 minutes pay for having left the building without per mission 87 The General Counsel contends that this conversation was unlawful in that Leidy had threatened Vasquez with a change in work rules and benefits including loss of his break period, if he selected the Union, and, that Leidy also unlawfully had threatened Vasquez with a loss of wages because of his union activities Vasquez, however conceded that the Respondent had had in effect a long standing rule requiring that employ ees obtain their supervisors permission before leaving the residence building during break periods Vasquez had 84 Rossmore House supra 85 Vasquez a dietary department employee for approximately 7 1/2 years at the time of the hearing did kitchen work Vasquez was em ployed by the Respondent when he testified 86 25 May was the first day during which the representation election was conducted The balloting took place between 1 30 p in and 4 30 p in on 25 May and from 8 to 8 30 a in on 26 May 87 In spite of Leidy s stated intent no money was withheld from Vas quez pay because of this incident 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD known of this rule well before 25 May and had abided by it on earlier occasions Nonetheless, on 25 May, Vas quez had not sought such a pass for himself even though he had heard Wallace ask Dempsey for permission to leave the building 88 Contrary to the General Counsel it appears from the foregoing that the threat to dock Vasquez for having left the building without permission, although occurring on the day of the representation election, was not related to his union activities of which there is no evidence of em ployer knowledge Rather it appears that Vasquez was spoken to by Leidy because he had breached an estab lished work rule that not only was known to Vasquez, but was one with which he had complied in the past There is no evidence that the rule either had been pro mulgated or was more stringently enforced because of the Union s organization campaign Noting, too, that Wallace who accompanied Vasquez from the building but who had complied with the rule, was not disciplined although Leidy, as found above, by then knew that Wallace was an active union adherent, I conclude that Leidy s unfulfilled statement that Vasquez would be docked 15 minutes pay was not union related or violative of Section 8(a)(1) of the Act 89 d Incident affecting William Ramos William Ramos90 testified that on 26 May, the day it became known that the Union had lost the election Leidy passed his work area and told Ramos that he wanted to speak to him for a few minutes Ramos agreed Leidy declared that he needed Ramos help Ramos asked what kind of help Leidy told him that he knew that Ramos was one of the big chiefs for the Union because a lady had told him so, and that he needed Ramos help to make peace with the employees who had been fighting for the Union Ramos replied that in cam paigning for the Union he had been exercising his rights and in doing so he had not been breaking the company rules the law or any regulations Ramos also told Leidy that he was not satisfied with the way in which he was being treated by the Company or with the benefits that he was receiving from the Company Leidy then walked away As Leidy recalled the incident during the afternoon of 26 May, after the Union had lost the election he looked for Ramos and found him at work somewhere in the building Leidy told Ramos that he had seen him in volved with the Union-both at the Labor Board and as union election observer As Ramos had influence or at least, interest in the Union, Leidy declared that he wanted Ramos help in making certain that there would be no further antagonism among the employees Leidy 88 Although Leidy s focus with respect to this incident was on Vas quez Wallace had been far more active on behalf of the Union having distributed and collected substantial numbers of authorization cards in cluding that signed by Vasquez In contrast Vasquez principal union ac tivity had been merely to sign and return his own authorization card to Wallace 89 It has been found above that the Respondent had earlier violated Sec 8(a)(1) of the Act by certain of Leidy s other conduct directed at Wallace 90 Ramos a housekeeping department employee with the Respondent for more than 12 years still was employed at the time of the hearing testified that this was the extent of his only conversation with Ramos on the matter of unions The General Counsel contends that Leidy s remarks during the above conversation violated Section 8(a)(1) of the Act in that they created an impression that Ramos union activities had been under surveillance The Re spondent argues that no impression of surveillance either was intended or created By the time of this occurrence, Ramos had been conspicuously active for the Union for months had appeared on its behalf at the April represen tation case hearing and he served as the union observer during the 2 days of the gust completed election Accord ingly, Ramos union sentiments were well known and it was precisely because Ramos was a known union adher ent that, when the election was over the Respondent had sought his aid in smoothing over employee differ ences that may have arisen during the campaign As the respective accounts of Ramos and Leidy of this conversation are substantially in accord with regard to the principal aspects of what was said, that Leidy had asked Ramos as a leading union activist for assistance in making peace among the employees during the postelec tion period resolution of that aspect of this incident does require resolution of credibility In the area of difference that does exist whether as Ramos testified Leidy told him that he had learned of Ramos union role from some lady or whether, as Leidy related, he had discerned this from seeing Ramos at the representation hearing and as the Union s election observer that same day, logic would require that Leidy s version be accepted as supported by Ramos sheer conspicuousness In this context the evidence does not support the General Counsels contention that Leidy, in some way had imparted to Ramos that his union activities were being scrutinized or spied on, but rather, that the Re spondent in a noncoercive way merely had asked for Ramos assistance in improving the atmosphere of the workplace in the aftermath of the representation election Accordingly I find no basis for concluding that Section 8(a)(1) of the Act was violated by what was said by Leidy during this conversation e Incident affecting Stephen Brown Former employee Stephen Brown91 testified that during the second or third week of April Leidy ap proached his work station , greeted him , and told Brown that he was scared of the Union and that Brown must talk to some of the kitchen workers to (get them to) vote against the Union Brown replied that he would try his best As Leidy did not contradict Brown s testimony in this regard I find that the Respondents solicitation of Brown in the preelection period to get the employees to vote 91 Brown employed in the residences dietary department as a kitchen worker had two periods of employment with the Respondent He first worked at the Williams Residence from about 1972 to about 1973 or 1974 and resumed his employment there in 1975 leaving in December 1983 During 1983 Brown was employed as a part time short order cook Other testimony by Brown will be considered in connection with the al leged unlawful discharges SALVATION ARMY RESIDENCE against the Union is violative of Section 8(a)(1) of the Act 92 f Incidents affecting Jose Reynoso 1 Jose Reynoso93 testified with respect to two con versations with his immediate superior, Maintenance Su pervisor Charles Scales The first incident, according to Reynoso, occurred in mid February,94 when Scales phoned him to come to Scales subbasement office, where they met alone Reyn oso related that Scales told him that the Union was plan ping to come into the building and that, if it did so, the Salvation Army was going to bring in contractors to take the employees jobs and was going to close down the building Reynoso, replying that he would go look for a job someplace else, went back to work 2 The second conversation took place in mid April in the early morning After Scales had given out the assign ments to the maintenance crew in the shop area, where this usually was done, he directed Reynoo to remain behind Scales then took Reynoso back to his office, where, again, he spoke to him privately Scales told Reynoso that if the Unions should win the election the painters would be laid off, but if the Union should lose the election, the painters would get a good increase in salary Reynoso did not reply Although Scales later testified at the hearing, he did not seek to contradict Reynoso s above testimony, which is credited In agreement with the General Counsel, I find that the Respondent, during Scales two conversations with Reynoso respectively violated Section 8(a)(1) of the Act by Scales' threats that if the Union should win the elec tion the Respondent would take away the employees jobs by contracting out their work, would close the rest dence building, and by telling Reynoso a painter that the painters would be laid off The Respondents promise to Reynoso in the alternative that if the Union should lose the election the painters would receive a good salary increase, also violated Section 8(a)(1) of the Act g Alleged conduct of Respondents counsel (1) Kenneth A Margolis The General Counsel adduced testimony to establish that in May 1984, a year after the election and shortly before the hearing opened with Judge Ohlbaum on 21 May 1984 one of the Respondents attorneys, Kenneth 92 PYA/Monarch Inc 275 NLRB 1194 1196 (1985) The violation here would appear to be more pronounced than that in PYA/Monarch supra, where an employer solicited an employee to induce other employ ees to repudiate the union during a conversation that had been begun by the employee who had been seeking the employers help in resolving confused feelings about the union Here it was the Respondent who had initiated the conversation with the employee and raised the topic of the Union 93 Until his resignation in September after the election Reynoso had been employed for 10 years as a painter in the Respondents maintenance department 94 As the Union s organization drive did not begin until March Reyn oso s testimony with respect to a February date for a discussion concern ing the Union probably was incorrect This error however does not serve to nullify the substance of his testimony which as will be noted is uncontroverted 971 A Margolis 95 unlawfully interrogated employees at the residence concerning the extent of their cooperation with the Board s Regional Office during its investigation of the underlying charges herein, and as to the testimony they might offer as witnesses for the General Counsel at the hearing Employee Michael W Wallace testified that in May 1984 his supervisor in the dietary department, Dempsey, told him at work that a Salvation Army lawyer was waiting downstairs to speak with him Dempsey then took Wallace to the basement near the activities office where she introduced him to Margolis and left 96 Mar golis told Wallace that he did not have to talk to him and that he had the right to leave the room at any time he wanted At no time during their interview did Wal lace tell Margolis that he would not cooperate or that he wanted to leave Wallace related that Margolis then asked if he had signed a statement for the Labor Board After a pause, Wallace told Margolis that he had Margolis asked for the statement's content Wallace told Margolis that he did not remember 11 Margolis asked if Wallace had attended any meetings conducted by the Union Wallace answered yes Margo Its did not ask what had occurred at any such meetings Wallace testified that Margolis final question to him was whether he had signed a union card When Wallace again answered yes Margolis told him that that was it, ending their meeting Josette Salomon98 testified that, in May 1984, she re ceived a telephone call at her work station from Major Leidy Leidy, without explanation, told Salomon to go downstairs to Major Jordan s office in the residence basement 99 Salomon testified that when she entered Jordan s office only Margolis was present He introduced himself as the Salvation Army lawyer and stated that he was there to prepare for the trial that was going to take place involving the Salvation Army According to Salomon Margolis did not ask if she had been subpoenaed and she denied that Margolis had told her that she did not have to talk to him if she did not want to Margolis did tell Salomon that he was trying to help Major Leidy Margolis then asked if Salomon had signed a union card When she said yes, Margolis then asked who had given her the card Salomon replied that she had re ceived the card from the union lady, Theresa Rodriguez on the street Margolis asked if Salomon remembered anything that had taken place at the meetings conducted by the Re spondent He asked if she had seen a movie (videotape) that Major Leidy had shown and if she remembered as Margolis as noted no longer represents the Respondent 99 Wallace had met Margolis earlier at the representation case hearing 97 By the time of their May 1984 interview Wallace had given the Board s Regional Office two affidavits dated in January and February 1984 respectively es Salomon a housekeeping department employee had been at the Williams Residence for approximately 14 years where she still was em ployed at the time of the hearing " Except that his office was used for certain interviews Salvation Army Major Mario Jordon was not involved in this proceeding 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD anything about the movie Salomon told Margolis that while she had seen a movie she did not remember any thing about it In response to Margolis question, Salo mon stated that she also did not remember anything about the slides shown during those meetings Margolis asked if the Labor Board lawyer ever had called Salomon about the movie She answered no Mar golis then told Salomon, Josette, if the Labor Board lawyer calls you about the movie, tell her you don t re member nothing You did not see anything because, Jo sette, I want to help Major Leidy Salomon then asked if Margolis was finished with her He answered yes, and she returned to work Margolis testified that during his 18 May 1984 visit to the Williams Residence, he met consecutively with ap proximately seven or eight employees He had gone to the residence after being advised by Ronald Kreismann, his senior cocounsel, that the Respondent had notified their law office that several employees subpoenaed by the General Counsel had raised questions about their subpoenas At the Williams facility, Leidy provided Mar golis with use of a basement office and arranged to summon the relevant subpoenaed employees, one at a time, to meet there with Margolis Margolis related that the respective interviews all fol lowed the same basic format Without giving his name, Margolis introduced himself as the Salvation Army s lawyer to each employee as they came in He told the respective employees that he wanted to speak to them about the events involved in the unfair labor practice trial that was coming up during the following week, that he wanted to help the Williams Residence prepare for hearing and that it was up to each employee to decide whether they wanted to speak to him As far as Margolis and the residence were concerned nothing would happen to any employee regardless of whether the employee chose to talk to him If so desired the employee was free to leave Before proceeding further, Margolis asked each employee if he or she wanted to stay and discuss this matter All interviewed employees agreed to talk to him Margolis related that he then told each employee in turn that it had come to the Respondents attention that several workers who had received subpoenas to attend the hearing had questions concerning the subpoenas If they had received such subpoenas they should comply with them as official requests by the Government for their appearances If the employee had any questions concerning the subpoena, he or she should contact the counsel for the General Counsel whose name and ad dress were on the subpoena Margolis then asked what each employee remembered as having occurred at the residence during the period before the union election He then advised that only one of the charges alleged that there had been a threat to close the facility if the Union came in and asked if the respective employees had heard words to that effect Margolis testified that he began the interview with Salomon using the above introductory remarks He intro duced himself as the Respondent's attorney advised Salomon of her right to decide whether to talk to him about matters relevant to the Respondents trial prepara tion without concern for reprisal and advised her to comply with the General Counsels subpoena When Salamon agreed to speak with him Margolis asked what she remembered as having occurred at the residence during the period before the union election Salomon told him that there had been meetings during which films had been shown When Margolis asked about the films, Salomon told him that they had been about unions Margolis told Salomon that the charges alleged that there had been threats to close the residence if the Union came in Although he asked if Salomon had heard this, he does not recall if she replied In response to Margolis inquiry Salomon told him that she had nothing in writing in the way of notes or statements that would help her to remember more about the meetings or the films The interview lasted for less than 5 minutes Margolis related that Michael Wallace the last em ployee he met with that day, was brought to the inter view room by his supervisor, Dempsey, who then left them alone When Margolis completed his above described open ing remarks, including the reassurance against reprisals, and Wallace declared his willingness to talk to him, Mar golis asked what Wallace recalled as having happened at the residence during the period before the election In re sponse to a series of questions, Wallace said something about films having been shown at meetings Margolis asked about the films but did not recall whether Wallace described them Margolis asked if Wallace had any notes diaries or statements that he could read to help him remember more about these events Wallace replied that he had given a statement to the Board but did not have a copy This ended the interview 100 Reviewing the differences between the testimony of Wallace and Salomon and that of Margolis with respect to what took place during the interviews contrary to Margolis neither Wallace nor Salomon testified that Margolis had given them assurances against reprisal in connection with the interviews although Wallace did confirm that Margolis had made clear that Wallace s co operation was voluntary Salomon too had agreed to talk to Margolis Also contradictory to Margolis both employees related that Margolis had asked each if he or she had signed a union card 101 According to Salomon, she also was told that if the Board attorney should call her about the movie shown by the Respondent at the meeting she should say that she had not seen anything because Margolis wanted to help Major Leidy Margolis made no reference to the employees subpoenas Wallace s testimony that Margolis has asked if he had given a statement to the Board went 100 Margolis denied having asked either Wallace or Salomon if they had signed union cards The only time that the topic of a union authon zation card had come up that day was while Margolis was interviewing another employee not referred to by the General Counsel Roshell Nich ols Replying to Margolis inquiry concerning what had happened at the residence before the election Nichols volunteered that he had signed a union card but had turned around Margolis had not replied to this 101 Salomon testified that she also was asked who had given her the union card and for information about what she had told the Board s Re gional Office SALVATION ARMY RESIDENCE beyond Margolis' statement that he routinely had asked all employees spoken to that day whether they had any statements, notes or other documents that could be used to refresh their memories Wallace further related that Margolis had asked for details of Wallace s affidavit to the Board I credit the testimony of Wallace and Salomon as to what occurred during these interviews, except that I do not accept Salomon's uncorroborated testimony that Margolis, contrary to ethical standards, had attempted to influence what she should say to the Board attorney con cerning the events of this case In so crediting other as pects of these employees accounts, it is noted that Wal lace and Salomon appeared to be forthright witnesses who were mutually corroborative in describing the sub stance of their respective conversations with Margolis Both employees testified that there had been no reassur ance against reprisal regardless of cooperation in the interview, both had been asked if they had signed union authorization cards and each employee had been asked not only about the details of the Respondent's preelec tion conduct, but what had been said on this topic to the General Counsel Neither witness agrees with Margolis testimony that he had spoken to them about their sub poenas In accepting the testimony of these witnesses, it is noted that both Wallace and Salomon were employed by the Respondent when they testified The Board, in evaluating employee witnesses testimony against the in terest of their employer at a time when they still are em ployed, considers this to be one factor supporting the credibility of their testimony 102 The Board, in Johnnie s Poultry Co ,103 recognized that in spite of the inherent danger of coercion where an em ployer has legitimate cause to inquire, he lawfully may interrogate employees concerning their Section 7 rights for two purposes without incurring 8(a)(1) liability (a) to verify a union s claimed majority status so as to deter mine whether recognition should be extended and (b) to investigate facts concerning issues raised in a complaint where such interrogation is necessary in preparing the employer's defense for trial of the case In allowing this privilege of interrogation the Board and courts have es tablished the following safeguards or guidelines designed to minimize the coercive impact of such employer inter rogation [t]he employer must communicate to the employee the purpose of the questioning assure him that no reprisal will take place and obtain his participation on a voluntary basis the questioning must occur in a context free from employer hostility to union or ganization and must not be itself coercive in nature and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employ ee s subjective state of mind or otherwise interfer ing with the statutory rights of employees When an 102 Pittsburgh Press Co 252 NLRB 500 504 ( 1980) Southern Paint & Waterproofing Co 230 NLRB 429 431 fn 11 (1977) Georgia Rug Mill 131 NLRB 1304 1305 in 2 ( 1962) enfd as modified 308 F 2d 89 (5th Cir 1962) 103 146 NLRB 770 (1964) enf denied 344 F 2d 617 (8th Cir 1965) 973 employer transgresses the boundaries of these safe guards, he loses the benefits of the privilege Here, from the credited evidence, Margolis did not re assure Salomon and Wallace against reprisal in connec tion with their respective interviews as required by John me s Poultry Co ,104 and, in any event, exceeded legiti mate purpose by asking Salomon from whom she had re ceived her authorization card, thereby inquiring into the union activities of other employees, and by interrogating Wallace concerning the contents of the statement he had given to the Board Such an inquiry is tantamount to re garding a copy of an employees affidavit given to the Board, conduct held unlawful in Dayton Typographical Service 101 As the Respondent, through Margolis, also asked each of these employees if they had signed union authorization cards without first affirming that no repass al would be taken against them, that inquiry, too, was unlawful 106 As Margolis did not adhere to the guideline that Wal lace and Salomon be assured of freedom from reprisal, I conclude that the Respondents interrogation of these employees through Margolis as to whether they had signed authorization cards, as to who had supplied such cards, and as to the content of Wallace's affidavit given to the Board all were in violation of Section 8(a)(1) of the Act 107 While I have credited mutually corroborated areas of the testimony of Wallace and Salomon concerning their respective meetings with Margolis, I do not accept Salo mon's further uncorroborated statement that Margolis had told her, while she was under subpoena, what to tell the General Counsel so as to improve the Respondent s position at the upcoming hearing My observations of Margolis while he was testifying and his testimony as a whole convince me that it is most unlikely that he would engage in such improper conduct 2 Ronald Kreismann Housekeeping employee Audrey Ga11108 testified that about 2 years after the election, on 12 May 1985 about 1 15 p in she had just returned from an outside errand when her new supervisor Ken Kern 109 told her that Major Leidy wanted to see her in his office Gall related that the only person in Leidy s office when she arrived there was the Respondents principal counsel in this matter Ronald Kreismann When Gall gave her name Kreismann introduced himself as Major Leidy s lawyer and asked her to be seated Kreismann indicating a document on the desk, told Gall that she 104 See Bill Scott Oldsmobile 282 NLRB 1073 (1987) 105 273 NLRB 1205 1206 1214 (1984) 106 Standard Coosa Thatcher Yarn Division Y NLRB 691 F 2d 1133 (4th Cir 1982) enfg 257 NLRB 304 (1981) Also see Products Unlimited Corp 280 NLRB 435 (1986) 107 Margolis inquiries as to who had supplied the authorization cards of course was an unlawful inquiry into the union activities of other em ployees 108 At the time of the hearing Gall had been employed by the Re spondent for approximately 9 years 109 Kern replaced Blanche Kronnel as housekeeping department super visor in July 1984 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD could sign the paper if she so desired , but that she did not have to Gall replied that she did not have eyeglasses and was not signing anything Gall did not recall wheth er Kreismann told her that what she had declined to sign was a statement that had been read aloud to her, from which she understood that her participation in the inter view was voluntary However, she did remember that Kreismann had told her that he was going to write across the top of the offered statement "Audrey Gall prefers not to sign, but will answer questions " Gall avowed that Kreismann told her that he had a number of questions to ask concerning events that had taken place during the Union's organizing campaign at the Williams Residence in the spring of 1983 and that, if she did not wish to talk with him, she was free to leave either then or at any time dunng the interview Gall agreed to answer Kreismann s questions as long as they related to matters she knew about Ronald Kreismann then asked if Gall recalled whether Major Leidy had said anything about selling the Wil liams Residence building Gall replied that on occasion, in meetings, she had heard Leidy say that if the Union got in, he would close the doors Kreismann asked if anyone had spoken to Gall about anything concerning the Union during her worktime against the background of the then upcoming election Gall told Kreismann that, a couple of days before the election, a man who was not in uniform had approached her workplace and announced that he was a Salvation Army representative sent from headquarters The man had then shaken her hand and told her that he knew the election was coming up and he wanted all the girls to do their best If the employees voted for the Army, the Army would be willing after the election, to solve any difficulties the employees should have They should just call headquarters Kreismann asked if any films concerning the Union had been shown Gall replied that she remembered that one of the films had shown trucks turning over and a man taking a gun from his pocket and resting it on a counter There had been a lot of noise Kreismann then inquired if Gall had seen any strange people looking at the building She replied that she had seen many people come to the building but did not know what they had been about He then asked if Gall ever had heard Leidy say that he would sell the building Gall responded that Leidy had said that before the Union came in, he would close the doors Kreismann asked if workers were required to have a pass to take anything from the building or whether she had seen any of the workers take items from the prem ises without a pass Gall told Kreismann that if one of the guests gave anything to an employee, the employee should ask for a note because some of the residents are senile and not responsible and the employees could avoid trouble by doing this Kreismann agreed that this was correct Gall continued that the employees were asking for notes from residents who gave them property so that they could prove to the door guard that they had properly received what had been given to them She went on that employees never previously had had passes and the reason why they were getting passes then was because two men had lost their jobs over a piece of car peting 110 Gall did not recall having been told by Kreismann that no reprisal would be taken against her in connection with the interview However, she did tell Kreismann that she had been subpoenaed and that she was telling him exactly what she would say at the hearing The General Counsel contends from the above that Kreismann's interview and interrogation of Gall was un lawful in that he had failed to follow the Johnnie's Poul try Co guidelines set forth above 111 Kreismann testified that on 10 May 1985, when he went to the Williams Residence, he met individually with eight employees in Leidy's office Audrey Gall was the third to be interviewed Only he and Gall were present at the time Kreismann related that when Gall entered the room, he introduced himself by name as the Respondents attor ney, telling Gall that he wanted to talk to her about cer tarn events that occurred during the Union's election campaign to assist him in preparing the defense for the upcoming unfair labor practice hearing He told Gall he wanted to tape their conversation if she had no objec tion When Gall declared that she had no problem with this, he turned on a tape recorder located on top of Leidy s desk 112 Kreismann then read Gall a prepared statement that reiterated who he was and his reasons for being there Kreismann asked if Gall would sign the statement, giving it to her to read Gall declined to sign, explaining that she did not have her eyeglasses Kreismann then asked if Gall would have difficulty in answering any questions that he had of her Gall said no He then informed Gall that in those circumstances, he was going to write at the top of the prepared statement that Gall preferred not to sign but would talk to him, and made an entry to that effect At the hearing, Kreismann countered Gall's account by playing the audiotape made during their interview Accordingly I then was able to compare the voices on the tape in the presence of Gall and Kreismann, while both were participating to conclude on the record that the recording contains both of their voices Although the audiotape was received in evidence and the Respondent was granted leave to furnish a transcript of its content, these items were not included among the exhibits and were not thereafter located by the court reporter None theless, as the issue concerning the lawfulness of this interview centered on whether the Respondent had met the Johnnie s Poultry guidelines, enough of the first part of the tape, when it first was played is quoted in the 110 The two dischargees referred to by Gall Clarence Greaves and James N Gibbons are at issue in this proceeding 146 NLRB 770 774-775 (1964) 12 Although Gall testified that she did not recall that Kreismann had told her that he was going to tape their conversation her stated poor memory on this point is insufficient to counter Kreismann s clear and un equivocal testimony Accordingly crediting Kreismann I find that he had informed Gall in advance that he was going to record what was said at their interview and that she had consented SALVATION ARMY RESIDENCE hearing transcript as to confirm Kreismann 's testimony as to what he had told Gall in this respect 113 Accordingly, I find that Kreismann properly applied the above described Johnnie's Poultry safeguards in inter viewing Gall He informed her that the purpose in talk ing to her was to assist the Respondent in preparing its defense at the pending unfair labor practice hearing, that her participation in the interview was voluntary and that, regardless of whether she chose to cooperate or what was said during their talk, no reprisal would be taken The General Counsel does not contend that, apart from the issue of compliance with the Johnnie's Poultry safe guards, the interview went beyond legitimate purpose or otherwise violated the Act Kreismann's questions, even as described by Gall, did not probe her subjective state of mind or interfere with her statutory rights, and Gall had taken the initiative in discussing the need for passes permitting employee removal of property from the Re spondent's premises, in the interest of the two discharges Noting also that there were no expressions of hostility to the Union during the interview,' 14 I find that Kreis mann's 10 May interview of Gall did not violate Section 8(a)(l) of the Act 115 9 Summary of 8(a)(1) violations It has been found that during its meetings with groups of employees before and immediately after the represen tation election, from 13 April to 26 May, in ways dis closed above, the Respondent violated Section 8(a)(1) of the Act by (1) Leidy s statements at the 13 April meeting that the employees would lose break time and that the rules around the residence would change (2) Leidy's warning to employees on 13 April that if the Union came in, he would not give it a penny, there by expressing the futility of their selecting a union (3) Leidy's 13 April statement that the Union belonged to the Mafia (4) Leidy s 13 April invitation to employees to talk to him about their pay instead of going to the Union (5) Garrel s implied threats on 19 May that as at the Eventide Nursing Home, if the Williams Residence em ployees chose the Union as their bargaining agent the residence would be closed and its building reallocated to a different Salvation Army program 116 Leidy's threat in May, described by employee Wal lace that if the Union came in and demanded too much money the Salvation Army could just close the building 113 Kreismann s precaution in audiotaping his interview with Gall fa cilitated resolution of the credibility issues ansing from that meeting in a way that was not possible with respect to Margolis above unrecorded employee interviews 1 14 Except for Margolis unlawful interrogations of Wallace and Salo mon which took place approximately 1 year after the election and a year before Margolis interview with Gall all the Respondents conduct at issue had occurred approximately 2 years earlier 11 s Conkle Funeral Home 266 NLRB 295 299-301 (1983) 116 As the May preelection meetings were paired so that the same ma tenals and commentators could be presented to two successive groups of employees and thereby reach all available unit employees unlawful con duct found to have occured at the May meetings particularly on 19 May was repeated creating additional unlawful incidents 975 (7) Leidy s statement to Wallace, after distributing campaign warranty coupons and wooden nickels at a meeting with employees, that he knew that there was going to be a union meeting that night, and suggesting that Wallace take the warranty coupons to that meeting on the chance the Union officials might sign them (8) Leidy's May threats, described by various employ ees, to close the residence building if the Union should come in (9) Leidy s statement to employees at the 26 May post election meeting blaming the Union's continued presence for the delay in discussing and implementing a new wage and benefits program Apart from what was told to employees during the preelection and postelection meetings of April and May, the Respondent further violated Section 8(a)(1) of the Act by the following statements made to individual em ployees before the election (1) Dietary Supervisor Dempsey s April remark to Wallace while discussing his attendance at the represen tation case hearing that it was going to be rougher now for Wallace because the Respondent was going to be watching him (2) Dempsey s statement to Wallace about one week after the foregoing that if the Union came in, there was a chance that the Salvation Army would sell the Williams Residence building, in the context of her announcement during that conversation that she had heard rumors that the Salvation Army might be selling the building and that there were people looking to buy it (3) Leidy s statement to Clarence Greaves in early May that he could not grant Greaves request for a pay raise as a union was coming in (4) Leidy s dining room interrogation, when he asked Greaves what was going on about the Union (5) Leidy's April solicitation of Stephen Brown that Brown attempt to induce other employees to vote against the Union (6) Maintenance Supervisor Scales' threats to Jose Reynoso during two conversations in the course of the Union s campaign that if the Union should win the elec tion the Respondent respectively would (i) Take away the employees jobs by contradicting out the work they had been doing (u) Close the residence, and (iii) Lay off the painters (7) Scales alternative promise to Reynoso during their mid April conversation that, should the Union lose the election, the painters would receive a good salary in crease (8) Attorney Margolis' 18 May 1984 interrogations of Josette Salomon and Michael W Wallace, respectively, regarding whether they had signed authorization cards, as to who had supplied such cards, and by asking Wal lace about the content of the affidavit that Wallace had given to the Board s Regional Office 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C The Discharges of James N Gibbons and Clarence Greaves 1 The General Counsels evidence On 28 June, about 1 month after the representation election, the Respondent terminated two long term main tenance department employees, James N Gibbons 117 and Clarence Greaves 118 The Respondent asserts that Gibbons and Greaves were discharged for having stolen a piece of carpeting which the Respondent claims was taken from the residence building in violation of an es tablished policy that employees who remove property from the residence produce passes or permits for same The General Counsel and Union denying theft, con tend that Gibbons previously had received permission to take the carpeting from his supervisor, Scales, and that Greaves who coincidentally was working near the rest dence front door when Gibbons was carrying the carpet tng to a friend s waiting van, had merely helped Gibbons with his burden These parties argue that the two men were terminated because of their union sympathies and activities The General Counsel points out that the car peting involved was in such poor condition and of so little value as to render the Respondents conduct in this regard suspect The General Counsel also disputes the Respondents assertion that an effectively enforced viable policy requiring that employees submit passes for the removal of property was in existence at the time Gibbons principal union activity was to sign an au thorization card on 15 March He had received the card on the street from Union Representative Joseph Lovell the previous evening as he was leaving work Gibbons completed and signed the card in the residence the next day during his breaktime and on the evening of 15 March, personally delivered it to the union hall He earls er also had so delivered the card signed by Greaves As was the case with the other employees Gibbons and Greaves were required to attend at least two pree lection meetings 1 1 s and one postelection meeting called by the Respondent Greaves preelection job experiences concerning the Union were the more pronounced as it has been found above that on two instances the Respondent violated the Act by its conduct toward him 120 Greaves, too, signed a union authorization card on 11 March, which he had received from a coworker at the residence Later that day, he gave the card to Gibbons to deliver to Union Representative Lovell 121 Gibbons testified that in January, about 5 months before his discharge he spent a week painting apartment 1623 on the top floor of the Williams Residence, occu pied by the ranking Salvation Army officer in the area- the commissioner On his first workday in that apart ment, Gibbons saw a carpet stain which he reported to Blanche Kronnel the housekeeping department supervi sor Kronnel replied that it was a water stain from the radiator and, later that week, told Gibbons that the car peting was to be removed from the apartment Gibbons related that on 7 March, while working in an other 16th floor apartment near apartment 1623, he heard Kronnel direct employees Victor Simeon and Walter Craig to take the carpeting from apartment 1623 to the basement incinerator area When, an hour later, Simeon and Craig had removed the carpeting and had loaded it onto a trolley, Gibbons rode down with them on the elevator122 and accompanied them to the inciner ator area Gibbons then waited until Simeon and Craig had dumped the carpeting pieces from the trolley and left the area 123 Gibbons then while employee Audrey Gall looked on, cut a 5 by 6 foot piece from the carpeting and leaving this with Gall, went to Scales office in the subbasement, where he found Scales alone Gibbons asked if Scales had any twine, declaring that he had a piece of the carpeting that had come from apartment 1623 Gibbons told Scales that the carpeting had been left on the pile and that he would like a piece of twine to tie it together Scales said yes and gave Gibbons some twine According to Gibbons Scales asked if he could take the carpet away then Gibbons answered no, he wanted to return to the basement Scales then told Gibbons that he could leave the carpet on the air conditioner in the storeroom 124 Gibbons returned to the basement where with Gall still present he tied up the carpet and took it to the storage/locker room 125 After leaving the carpeting in the storeroom, Gibbons returned to work Gibbons testified that during the early morning of 8 March the day after he had left the carpet on the air conditioner he had a conversation in the locker/ storeroom with fellow maintenance worker Malcom Ford 117 Gibbons a painter with the Respondent since January 1970 report ed to Maintenance Supervisor Charles Scales As a painter Gibbons duties consisted of painting plastering and checking apartments for carpet stains and for damaged walls and ceilings He reported such de fects to Scales 118 Greaves who had worked for the Respondent since May 1978 re paired burst pipes defective faucets and electrical fixtures Greaves too worked in the maintenance department under Scales iii Greaves was obliged to leave his second preelection meeting early to answer an emergency maintenance call 120 It has been found that the Respondent violated Sec 8 (a)(1) of the Act about 2 weeks before the election when Leidy approached Greaves in the cafeteria and in effect asked him what was going on about the Union On another occasion in that period Leidy unlawfully blamed the Union for his refusal to grant Greaves request for a pay increase 121 There is no evidence that the Respondent knew that Gibbons and Greaves had signed authorization cards as such or that Gibbons had de livered their respective cards to the Union Nonetheless the Employers knowledge of Greaves union sympathies is found from its above unlaw ful conduct towards him 122 Gibbons explained that he had taken the elevator to obtain some plaster from the subbasement in connection with his work in the nearby apartment Whatever his ultimate intent he did not immediately proceed to the subbasement but got off with the others at the basement level 121 Trash left in this was customarily was later incinerated by mainte nance employee Malcolm Ford 124 The basement storeroom referred to also was used in the morning and evenings by male employees to change their clothes 125 Gall was the recipient of the carpeting after it was removed from the residence some months later SALVATION ARMY RESIDENCE Ford told Gibbons that he had left a piece of carpet padding for Gibbons on top of Gibbons carpet 126 Ford then showed Gibbons his own piece of carpeting told Gibbons that he had gotten it from the incinerator pile, and that he had obtained underpadding for himself and for Gibbons Ford announced that he was going to take his carpeting home The next day, 9 March, Ford told Gibbons that he had taken his carpeting home the evening before with the as sistance of his son in law Had he known that Gibbons also lived in Brooklyn he could have transported Gib bons carpeting at the same time Gibbons did not there after from 7 March to 28 June, attempt to remove his carpet from the Respondents building Gibbons related that while on his way to work on the morning of 28 June, he arranged with a friend identified only as Bud, ' that Bud would drive his van to the resi dence that day, pick up Gibbons carpeting and deliver it as requested by Gibbons Accordingly, on 28 June at approximately 9 45 am, Gibbons was called from his work by Personnel Manag er and Front Desk Supervisor Myrtle Jaynes, who told him that Bud was waiting to see him at the desk When Gibbons arrived there Bud told him that he had come to take his carpeting for him Gibbons retrieved the rolled carpeting and padding from the storage room, carried them upstairs through the lounge and past Jaynes at the front desk He asked Clarence Greaves who then was using a pole to change light bulbs in the ceiling near the front doors, to hold open the inside front door for him As Greaves complied, Gibbons asked Greaves to help him further, telling Greaves that Bud was waiting out side Greaves, who also knew and wanted to see Bud, took the padding roll and carried it for Gibbons through the outer front door to the nearby van into which Gib bons and Greaves, respectively, deposited the carpeting and the padding Bud then drove off and the two men returned to the residence Greaves was the first to reenter the building, with Gibbons following about 3 feet behind As Greaves was between the outer and the inner door Leidy opened the inner door and asked Greaves, Hubert,127 didn t you just steal my carpet? Greaves replied that he did not steal any carpet and that Leidy should ask Gibbons about the carpet Leidy repeated this accusation several times, referring to Greaves incorrectly as Hubert' each time Greaves repeated that the carpet concerned Gib bons and that he had just been helping Gibbons with it Gibbons interceded telling Leidy that he should talk to him about the carpet Leidy repeated three times that Gibbons should be ashamed Gibbons repeatedly denied having stolen the carpet and told Leidy that Scales had known about the carpet, discarded from apartment 1623 Leidy persisted that Gibbons had told Greaves to steal his carpet repeating this too, several times Greaves told Leidy that they had not taken his carpeting 128 Leidy re 126 Ford had done this on his own initiative 127 As noted Greaves given name is Clarence 128 Leidy apparently also had stored some carpeting in the residence basement for his own use 977 fused Greaves offer to take him downstairs to prove that the carpet Leidy had accused them of stealing was still there telling Greaves repeatedly that he had stolen the carpet Leidy also repeatedly told Gibbons that he should be ashamed of himself After declaring that the matter would not end like this, Leidy returned to his office which was located near the front doors Gibbons and Greaves then went to the subbasement office of their supervisor, Scales, where they found Victor Luchak, a maintenance employee then substitut ing as supervisor for Scales who was vacationing at home Gibbons remained briefly in Scales office and then returned to his worksite on the 14th floor leaving Greaves and Luchak in the office Shortly thereafter, Gibbons and Greaves were called to Leidy s office Greaves testified that he arrived there before Gibbons and found Leidy and Luchak awaiting him As Greaves came in, Leidy told him that he was being fired for stealing the carpet Greaves asked Leidy to pay him his vacation pay and for his days work When Gibons also arrived Leidy called in Betty Pas ciutti, the bookkeeper Leidy told both men to sit He then informed the two men that he would accept no ex cuses, he was going to dismiss both of them for stealing his carpet Gibbons again asserted that he had not stolen Leidy s carpet, but that it had been taken from apartment 1623 and put into the garbage Leidy repeated that this was his property and that Gibbons had stolen it Gibbons responded that the insurance company had replaced the carpet Leidy announced that he had spoken to Scales, as Gibbons suggested, and that Scales had said he did not know of the carpeting Leidy then told Pascuitti that the two gentlemen s paychecks should be made ready for them and again declared that Greaves and Gibbons were being dismissed for stealing the carpeting Leidy then di rected Luchak to take the men downstairs to see that they cleaned out their lockers and, after they were paid, to escort them out the door As instructed Luchak accompanied Greaves and Gib bons to their lockers in the subbasement and then waited with them in Scales' office until they were called to the office for their paychecks Gibbons and Greaves then followed Luchak to bookkeeper Pasciutti's desk where she gave them their checks and blue forms to sign After signing the forms, they left the building, less than 30 minutes after their meeting in Leidy s office Gibbons testified that about 2 30 p in that day he called Housekeeping Department Supervisor Blanche Kronnel from his home and asked if Kronnel had heard what had happened to Greaves and himself 129 Kronnel replied that she had heard and had spoken to Leidy who told her that he called what they had done stealing Kronnel told Gibbons that to ensure privacy he should call her at home rather than on the number he had used She gave Gibbons the telephone number in her apart ment in the residence Gibbons called Kronnel again at her apartment about 6 20 that evening During this conversation Kronnel re 129 Gibbons had reported to Kronnel during his first 12 1/2 years with the Respondent ending in the summer of 1982 after which he reported to Scales 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lated that Leidy had told her that he knew which em ployees had subpoenas from the Labor Board and that he wanted to fire those employees because they had given their addresses at the hearing Kronnel also told Gibbons that she had reminded Leidy that the carpet had been covered by insurance which would replace it Leidy re plied that he called the removal of the carpet stealing Gibbons testified that between 28 June and February 1984, he called Kronnel many times at her home During such a conversation in February 1984, Kronnel told Gib bons that she had said to Leidy that she did not see why he had had to dismiss Gibbons for having taken that scrap from the garbage Leidy again answered that Gib bons had stolen it Kronnel then told Gibbons that Leidy repeated to her that he knew which employees had re ceived the subpoenas from the Labor Board and that he would like to fire those employees because they had given the Union and the Labor Board their addresses Gibbons further testified that early on 1 July, a few days after his discharge, he telephoned his former imme diate supervisor, Scales Scales told Gibbons that he was glad to hear from him When Gibbons asked if Scales had heard what had happened, Scales replied that he had and was very sorry to learn of it He told Gibbons to pray, to look for another job, and to not take the Salva tion Army to court because no one could take the Salva tion Army to court and win Gibbons then asked Scales if Leidy had called him at any time When Scales said yes, Gibbons asked what he and Scales had said to each other Scales replied that Leidy, during his call, asked if Scales had known about the carpet that Greaves and Gibbons had taken out Scales related that he had told Leidy that he had not known about the carpet Gibbons asked Scales how he could have told Leidy that he had not known about the carpet According to Gibbons, Scales answered that he had had to say no because Leidy had told him that it was a serious case and would cost men their jobs He told Gibbons that he had to clear himself If Gibbons and Greaves were being fired, then maybe he, too, would lose his job and to safeguard his position Scales had had to tell Leidy that he had not known of the carpet When Gibbons again asked how Scales could tell Leidy that he did not know about the carpet, Scales again told him to pray to look for another job and to not take the Salvation Army to court because he would lose Any person who takes the residence to court always loses The conversation ended 2 The Respondents evidence Scales testified that he first learned that Gibbons and Greaves had been terminated on 28 June around 10 a m when he was called at home by Leidy who asked if Scales had given Gibbons and Greaves permission to remove carpeting from the building Scales replied that as far as he could recollect he had not and never had dis cussed giving the two men carpeting Leidy told Scales to be sure because if he had not given them permission, Leidy was considering letting Gibbons and Greaves go Scales repeated that he could not remember ever having given them permission to remove carpeting from the building and that he did not believe that he had When Leidy repeated that Scales should be sure , Scales again said that he did not remember ever having given Gib bons and Greaves permission to remove carpeting from the building Leidy reiterated that he wanted Scales to be very sure because if Scales had not given them per mission, they would be terminated Scales related that, about 10 minutes later, he called Leidy and told him that he had thought about Leidy s question and had concluded that he definitely had not given the two men permission to remove carpeting from the building Leidy thanked him Scales recalled that on 30 June, Gibbons called him at home and asked if he had heard what had happened on the job Scales said that he had Gibbons then told Scales that Leidy had seen him remove carpeting from the building and asked if they had a pass When they said no, Leidy asked if they had permission to remove the carpet ing Gibbons said that he had told Leidy that he thought that Scales had given him such permission Gibbons re ported to Scales that when Leidy announced that he was going to terminate them, Gibbons had offered $50 if Leidy would let him keep the carpeting Leidy refused the offer but said that he would call Scales to see if he had given permission to remove the carpeting Scales told Gibbons that Leidy had made his decision and that there was nothing he could do Scales did not answer Gibbons point that he had given Gibbons permission to remove the carpeting Scales initially testified that he could not remember having spoken to Gibbons concerning the carpeting or the twine in March or at any other time Later in his tes timony, Scales related that he had not given any employ ee permission to remove carpeting from the residence before 28 June, including Malcom Ford whom, Gibbons reported, had done so in March I do not find Scales to be convincing According to Scales own account he supposedly had resolved his doubts as to whether he had given Gibbons permission to remove the carpeting on 28 June when he twice dis cussed this matter with Leidy while the job futures of Gibbons and Greaves still were being decided Yet, in not initially remembering at the hearing whether he had spoken to Gibbons about the carpeting before June as was Scales original testimony, Scales brought to this proceeding the very doubts he was supposed to have set tied years before, at a time closer to the events in ques tion and when more was at stake Later in the hearing Scales again changed his testimony to conform to what he related he had told Leidy Accordingly, I credit Gibbons clear consistent testi mony that, in March, he had requested and received from Scales both permission to take the carpeting and the twine with which to bind it I further find from Gib bons testimony that he had delayed removing the car peting until he could arrange for its transportation Leidy testified that during the morning of 28 June, while he was in his street level office near the front en trance he saw Greaves and Gibbons carry carpeting and padding past his window Leidy continued to watch them and saw them put the carpeting and padding into a van Leidy then went out the front door where he found SALVATION ARMY RESIDENCE kitchen employee Stephen Brown, then substituting for the door guard 130 Leidy asked if Greaves or Gibbons had given Brown a pass for what they had gust taken from the building Brown replied that they had not Just then, Greaves and Gibbons returned through the front door Leidy asked the two men what they had been doing with the carpeting and was told by Greaves that he had been helping Gibbons Gibbons then told Leidy that he had been given permission to take the car peting and had put it in the van to be taken away In re sponse to Leidy's further questioning, Gibbons and Greaves admitted that they did not have a pass for the carpeting When Leidy asked if anyone had given them verbal permission, Gibbons told him that he had received per mission from Scales Leidy told the men that if they did not have permission to take the carpeting, in his view, they were stealing Gibbons insisted that Scales had given him permission to take the carpeting and padding Leidy asked them to go back to work while he checked out their story Accordingly, Gibbons and Greaves reentered the building and Leidy returned to his office from where he called Scales Leidy told Scales of the incident concerning Gibbons Greaves, and the carpeting and that, even though the two men did not have a pass, they were claiming that Scales had given them permission to take the carpeting Scales answered that he had not given Gibbons and Greaves permission to take the carpeting Leidy urged Scales to be very careful and thoughtful because he was taking this very seriously Scales repeated that he was sure he had not granted permission to either or both of these men to take the carpeting and padding Leidy told Scales if that were true, the end result could be that he might discharge those two men Leidy then called the kitchen and summoned Stephen Brown to his office While Brown was enroute, Leidy typed the following on residence stationery TO WHOM IT MAY CONCERN I, Stephen Brown was at the front door of The Williams Residence serving as a relief door guard' when two employees from the mainte nance department (Mr James Gibbons and Mr Clarence Greaves) carried carpeting and padding from the building These employees did not have the required security/permission slip to remove the items This event happened at about 9 30 AM, on Tues day June 28, 1983 Leidy met alone with Brown when he arrived and asked again if Gibbons and Greaves had had permission to take the carpeting Brown replied that there had been no pass and that he had not asked for one Leidy told Brown that he intended to dismiss Gibbons and Greaves, 130 Browns regular assignment was as a short order cook in the Re spondent s dietary department However from January through June he had been assigned to relieve the door guard during the latter s 15 minute break periods 979 that he was concerned about the problem the Williams Residence would have at the unemployment hearing and that he had prepared a statement for Brown to sign He asked if Brown would sign it After Brown read and signed the above document both at the space where his name appeared in the body and at the bottom, and Leidy, too, had signed at the bottom as witness, Brown returned to work 131 Leidy then called Acting Maintenance Supervisor Victor Luchak and the residence bookkeeper, Betty Pas ciutti, to his office Leidy told Luchak that he was making a serious decision with regard to Greaves and Gibbons and wanted to make sure that they had not been given permission to take the carpeting and padding Luchak told Leidy that he had not approved this Leidy then asked Luchak to bring Greaves and Gibbons to his office Leidy related Pasciutti still was in his office when Luchak returned with the two men Leidy told Gibbons and Greaves that the carpeting was neither his nor Scales to give The two men had no pass they had had no permission and, as Leidy considered what they had done to be theft, he was discharging them Gibbons continued to insist that Scales had given him permission to have the carpeting and Greaves maintained that he only had been helping Gibbons Leidy told them again that they were being fired for theft, to clean out their lockers, to pick up their checks, and to leave the building Leidy declared that when they returned from the locker room, the bookkeeper would have their checks ready The men left Then, consistent with his stated practice, Leidy pre pared two memoranda of that date concerning the re spective discharges of Gibbons and Greaves In these, 131 Brown s testimony was limited by his powers of recall Although he supposedly had witnessed the confrontation between Leidy and the two employees outside the front door on 28 June as they were returning to the building from the van Brown initially testified that he had seen neither Leidy nor the van Brown s recollection was refreshed by his pre trial affidavit so that he subsequently could remember having seen the van but he never recalled having seen Leidy at the time and place in question Contrary to Leidy Brown also could not remember having signed the typewritten statement prepared by Leidy on 28 June Al though Brown identified his signature on Leidy s typescript he could not recall having signed that document Brown testified that the only state ment he had signed for the Respondent had been handwritten and given on about 5 July when he had been interviewed in Leidy s office by Leidy and the Respondents counsel Ronald Kreismann This discrepan cy later was clarified when the Respondents former cocounsel Margolis testified that it had been he not Kreismann who had interviewed Brown with Leidy in July at which time he had handwritten a transcription of Brown s statement Summarizing this aspect I find that in June and July Brown signed two unworn statements respectively prepared by Leidy and Margolis While the content of these documents emphasizes the existence of an em ployer policy requiring that employees who would remove property from the residence building submit passes permitting same it is noted that both statements actually were written out by either a member or repre sentative of management in their language and may well have exceeded Brown s intent particularly since he had not requested such pass while on duty at the door This observation is particularly applicable to the above 28 June statement typed by Leidy which Brown could hardly have refused to sign Accordingly in evaluating their significance these documents cannot be taken completely at face value and must be considered with other evi dence concerning the status of such a policy 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Leidy noted that the two men were terminated for re moving carpeting and padding from Respondents prem ises without authorization and that they acknowledged that they had not received permission and the authoriza tion slips used in the Respondents security system Leidy testified that under the Respondents Employees Manual, theft of Salvation Army property was expressly listed as misconduct requiring immediate dismissal Theft, generally, exacted instant penalty and stood as an excep tion to the general practice that employees be given written notice of their deficiencies and opportunity to improve before dismissal 3 The Respondents pass policy Leidy testified that when Gibbons and Greaves were terminated, and for at least 10 years before the Respond ent had pursued a policy that no employees could remove property from the residence building unless he had a permit signed by a Salvation Army officer of su pervisor authorizing same, t 3 2 and that failure to comply with that policy was a material factor in the decision to terminate Gibbons and Greaves Leidy noted that this rule had been set forth in a notice, copies of which had been posted permanently in specified places around the Respondents facility at all times This notice, in relevant part, provided II The practice of carrying shopping bags out of the building must stop If you have purchased some thing in the neighborhood and have brought it into the building, be sure you have a receipt from the store from which you purchased the item III If a guest has given you something and you wish to carry it home, you must have the approval of your supervisor and a note from the guest IV We may not inspect bags going out every day but we may inspect on days and at times you least expect us to do so If your supervisor has given you a slip to carry something out either turn it in at the front desk or to the guard at the door Scales testified that the above policy not only was known to both Gibbons and Greaves but that they had complied with it in the past He related without contra diction, that approximately 1 year and 7 months before their discharges respectively, he had given Greaves a pass to remove a television set from the residence and Gibbons a permit to remove a television table In addition to Stephen Brown the General Counsel principally relies on the testimony of employee Kenneth Harris and former door guard Earle F R Mabry to counter the existence of an effective pass policy at the time in question Harris i 3 3 testified that everyday from 192 At the hearing the Respondent introduced a sample Employees Package Pass form of the type required of employees who would remove property from the Respondents premises These passes were small pink mimeographed slips with a line for the employees name and lines for the contents of the package the date and the approving department head s signature Such passes were obtainable from any supervisor 133 Hams employed by the Respondent since January 1979 in its housekeeping department still was there at the time of the hearing January to June he too relieved the front door guard for 20 minute periods to enable the guard to go on break While doing this on 28 June he saw Gibbons and Greaves in their street clothes leave the building for the last time Harris related that he had received no instruc tions concerning a pass policy and that although he had seen employees take packages from the building he never had checked the packages or informed the supervi sor Harris averred that, later on 28 June after Gibbons and Greaves had departed, he first saw a notice posted in the locker room reguiring that residents and employees have passes to remove packages from the building He did not see the notice again after 28 June Earle F R Mabry i 34 testified that when he became a security guard for the Respondent about 5 months after starting to work at the residence, Salvation Army Briga dier G Newton McClements in instructing him in his duties, told Mabry that he should be aware of all people entering and leaving the building discouraging the unde sirables, that he should assist elderly and inform residents at the front door and that he should check employees leaving the building with packages claimed as given to them by residents Such employees were required to have passes from their supervisors for the packages they would remove Mabry was to collect these passes and turn them in to his supervisor Personnel Manager Myrtle Jaynes at the end of the day Mabry related that while employees always were re quired to have passes to remove packages given to them by residents, they did not have to have passes to take out discarded items, such as things left by the incinerator As Mabry s instructions did not enable him to determine whether an employee was removing a gift from a rest dent or trash from the pile, he decided this on his own solely on the basis of whether he earlier had seen the item by the incinerator If Mabry had not seen the article involved near the incinerator then as far as Mabry was concerned, it was not trash and a pass would be re quired Although Mabry passed by the basement inciner ator area three times a day during his lunch and break periods and could then observe what was by the inciner ator on those occasions, Mabry conceded that he did not go by a second separate area in the basement apart from the incinerator where garbage also was left for discard but not for incineration Accordingly he did not know what had been dumped there Mabry described a variety of instances during the months preceding the discharges of Gibbons and Greaves when various specifically identified employees removed items from the residence in the presence of Jaynes and himself without submitting passes and with out challenge As Mabry saw this aspect of his work, it had been his responsibility to seek passes from employees who sought to remove property that he regarded as sus picious which he interpreted as items that had to be car reed with two hands, such as small tables or furniture he had seen at the residence i34 Mabry was employed by the Respondent as a door guard from June 1980 until 1 July 1983 when the Respondent engaged an outside guard service SALVATION ARMY RESIDENCE It would appear from the foregoing that the Respond ent, as a practical matter experienced difficulties in ad ministering its pass policy Mabry through whom this policy was largely run by virtue of his position at the door had interpreted his duties broadly Not only was there nothing in Brigadier McClements work instruc tions that would have justified exempting items that Mabry believe to have been discarded but there was an entire second garbage disposal area apart from the incin erator that Mabry rarely passed Also, in Mabry's ab sence, his replacements at the door, Brown and Harris, who had not been instructed in the pass policy had not enforced it Since, as Mabry testified, so much of what he did to enforce the pass program depended on his abilities of ob servation and recall it is relevant to note that these qualities were suspect He related that he never saw the conspicuously posted notices concerning the pass policy on the bulletin boards throughout the residence and could not recall important details concerning his separa tion from employment at the residence, including how he had received his final paycheck and its amount It is dif ficult to conclude that, in enforcing the pass policy by his method, Mabry would have been more attentive to what was on the incinerator pile than to his final pay check Accordingly, noting the rather uneven way in which Mabry, as the primarily responsible door guard, had en forced the pass policy, which rule was ignored by his re placements, and Mabry s testimony that he and Jaynes had permitted substantial numbers of employees to remove items from the residence building without chal lenge I conclude that while the Respondents rule re quiring passes in fact had been promulgated and posted, operationally, it had not been uniformly or effectively enforced 4 The discharges-discussion and conclusions The General Counsel and the Union contend that Gib bons and Greaves were unlawfully discharged for their union sympathies and for activities against a background of employer conduct violative of the Act, some of which had been directed specifically against Greaves 135 The Respondent's violations of the Act found above were numerous important and pervasive including direct and implied threats to close its facility should the Union be selected, with attendant job loss Some of the most serious of these violations which approximated 19, were deliberately repeated before revolving assemblies of employees so that the Respondents unlawful statements would be heard by virtually all the Respondents bar gaining unit employees These violations have been ex tensively discussed, listed in summary and need not be repeated here Also, in agreement with the General Counsel, it has been found above that Gibbons had received prior oral 195 It has been found above that in the weeks before the election the Respondent through Leidy violated Sec 8(a)(1) of the Act by interro gating Greaves about the Union and on another occasion by denying Greaves request for a pay increase while blaming the Union for so doing 981 permission from Scales to remove the carpeting, that the carpeting which from samples introduced, appeared stained worn and in poor condition was of dubious value and that the policy requiring passes had not been effectively enforced The General Counsel argues from these considerations including the Respondents overall pattern of unlawful conduct, that the reasons given for the two discharges were pretextual and that Greaves and Gibbons actually were terminated because of their union activities and/or sympathies 136 Applied here, the threshold issue under Wright Line, 137 is whether the General Counsel has made a prima facie showing that the union activities and/or sym pathies of Gibbons and Greaves were motivating factors in their termination a month after the representation elec tion in which the Respondent had been successful I find that such a prima facie case has not been established The record contains no evidence that the Respondent had known of Gibbons' union activities or sympathies and, as indicated, the union activities of both Gibbons and Greaves were quite limited Each discreetly had signed a privately received authorization card, and Gib bons had delivered his card and that of Greaves to the Union on separate occasions Neither man otherwise had been active on behalf of the Union and the Respondent, for all its infractions found here, did not terminate or un lawfully discriminate against any of its other employees whom it had known and addressed as leaders in the Unions organizational drive, such as Wallace and Ramos The Respondent also did not discriminatorily disci pline any of the other unit employees who also had signed authorization cards and who were sufficiently nu merous to comprise a clear majority of the 72 employees, whom it will be found below, are in the bargaining unit While the `small plant doctrine138 may be applicable to a facility with an employee complement of this size, Gib bons limited union activity is insufficient to warrant drawing a Wiese Plow inference that such activity had been brought to the attention of the Respondents man agement 139 Although Gibbons and Greaves, as indicat ed by the General Counsel had been required to attend the Respondents preelection meetings where certain un lawful conduct occurred, this did not set them apart from the various other employees all of whom also were required to attend The two prior acts of unlawful conduct directed against Greaves before the election where Leidy reject ed his raise request because of the Union s presence and interrogated him about the Union, warranted a finding that the Respondent had learned that Greaves was 136 Although Gibbons testimony that Kronnel had reported to him Leidy s stated desire to terminate employees subpoenaed by the Board is undisputed the General Counsel has not shown that Gibbons or Greaves had been subpoenaed before termination to attend a Board proceeding Gibbons in fact testified that he had not been subpoenaed 197 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 ( 1982) approved in Transportation Management Corp 462 US 393 (1983) 185 Wiese Plow Welding Co 123 NLRB 616 (1959) 13e W W Grainger Inc 255 NLRB 1106 fn 4 (1981) 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD prounion, particularly in light of his response to that effect when Leidy interrogated him Nonetheless, the possibility that Greaves' discharge was a premeditated result of such unlawful conduct some 6 weeks earlier is diminished by Greaves' testimony that Leidy, at the moment of confrontation at the front door on 28 June, had repeatedly called Greaves "Hubie' rather than by his given name, Clarence It would appear that if Leidy had been focusing on Greaves over a time period as someone to be gotten nd of because associated with the Union, he would have known Greaves' name This confusion as to identify adds an element of sponta neity to the Respondent s reaction to the removal of the carpet, relating its conduct more closely to the events of that day Accordingly, noting that Gibbons and Greaves had not been more active in supporting the Union than were most other bargaining unit employees, that the Respond ent did not know that Gibbons had favored the Union, that known union activists had not been discharged or otherwise discriminated against by the Respondent, that the Respondent's violative conduct toward Greaves 6 weeks before, while indicating Employer knowledge of his union sympathies, for above related reasons, seems removed in result from his termination, and that the timing of the discharge a month after the representation election and 6 weeks after the violative conduct involv ing Greaves had occurred,140 do not suffice to establish a prima facie case that Gibbons and Greaves had been terminated in violation of Section 8(a)(3) and (1) of the Act because of their union activities and/or sympathies Although, I also have found that Gibbons, in fact, earlier had obtained permission from Scales to take the carpet ing, this approval was not known to Leidy when he ter minated the two men as Scales specifically denied this to Leidy when Leidy had called him to verify Gibbons' ac count before taking disciplinary action Leidy s actions in terminating Gibbons and Greaves therefor were predi cated on a good faith belief acquired after an investiga tion as thorough as the circumstances permitted, that the two men had removed the carpeting without authonza tion,141 and I find that these terminations were not in violation of Section 8(a)(3) and (1) of the Act 142 14° In Zarda Bros Dairy 234 NLRB 93 97 (1978) in which an issue was the discharge of a known union activist far more militant than Greaves the Board declined to find a violation In so deciding the Board relied in part on the fact that as here there had been a lapse of time between the occurrence of the Respondents other unfair labor practices and the employees discharge that the affected employees organizational efforts had been dormant for about 6 weeks by the time of his termina tion and the Respondent had no reason by then to believe that the em ployee still was active or interested in the Union Also there was no evi dence that the Respondent had viewed that employees union activities with concern at that time Such factors would be even more applicable to Greaves who had been so much less active for the Union As found the Respondent had no established knowledge of Gibbons union activities and/or sympathies i41 See American Thread Co 270 NLRB 526 532 (1984) Greenhouse Restaurant 221 NLRB 50 51-52 (1975) 142 In finding no violation it is noted that Leidy before acting had checked with both Scales and relief door guard Brown As to the pass policy although it has been found that the policy was ineffectively en forced it also was concluded that the rule nonetheless existed had been posted and had been complied with in the past by employees including Gibbons and Greaves However the amount of weight Leidy attached to D The Alleged Unlawful Refusal to Bargain The size and composition of the unit As noted, in his Board affirmed Decision and Direction of Election in Case 2-RC-19504, the Regional Director found the fol lowing unit appropriate for purposes of collective bar gaining All full time and regular part time dietary, house keeping, maintenance and laundry employees em ployed by The Salvation Army Williams Memorial Residence at 720 West End Avenue, New York, New York, but excluding all other employ ees, clerical/reception employees, doorpersons, pro fessional employees, guards and supervisors as de fined in the Act 1 The challenged ballots and unit placement At the election, the Union Petitioner originally chal lenged the ballots of Claude Hintzen and Sidney Thomp son on the ground that they no longer worked for the Employer, the ballots of Sophia Neibur, Ayn Steele, Geraldine Luciano, Hyacinth Thompson, Bill Wise, Betty Pasciutti, Theodore Boyd, Maureen Carroll, Edna Strasburg, and Teresa DuPont on the ground that they were excludable as clerical employees, the ballots of Florence Levy, Anita Hedlund,143 Florence Roberts, and Bart Burton on the gound that they were not en compassed as dietary employees because they worked in the residence dining room, and the ballots of Mary W Carter and Frederick Manck on the assertion that they were not the Respondents employees within the mean ing of the Act, but were volunteers The Board agent challenged the ballot of Jocelyne Castillon as her name did not appear on the voting eligi bility list Subsequently, the parties stipulated that 65 named em ployees including challengee Florence Roberts, were employed within the bargaining unit as found by the Re gional Director in the period from 1 January to 30 June, which figure included certain employees whose place ment had been in issue Beyond these 65 employees whose inclusion is agreed the Respondent when the hearing began contrary to the General Counsel and the Union, would have included Claude Hintzen, Frederick Manck Bart Burton, Irene Mitchell, Mary Vester Reese Florence Levy Teresa DuPont and 12 clerical/reception employees in the unit 144 Subsequently, the parties entered into a series of fur ther stipulations resolving the unit placement of most of the pass policy is not crucial as my findings in this area do not rest on whether the policy was followed but on whether from all evidence the Respondent had had reasonable cause to believe that the two men had removed its property without authorization and had acted on that belief As the evidence resolves these issues affirmatively the fact that the car peting involved was of small apparent value is a subjective factor unrelat ed to the lawfulness of the discharges under the Act i43 The spelling appears as corrected at the hearing i44 The ballots of Mitchell and Reese were not challenged at the elec tion but resolution of their unit status is germane to unit size and ac cordingly as to whether the Union had majority support on 17 March when it requested recognition and bargaining SALVATION ARMY RESIDENCE the employees whose status had been in dispute These stipulated resolutions include Jocelyne Castillon Theodore The parties stipulated that the challenge to Jocelyne Castillon Theodore s ballot be cause of noninclusion in the voting eligibility list was in appropriate She had been carried on the voting list under her unmarried name, Castillon, but had attempted to vote under her married name, Theodore Accordingly, in agreement with the parties, I find that Jocelyne Castil Ion Theodore was a member of the bargaining unit and was eligible to vote in the representation election There for, the challenge to her ballot is overruled Clerical/reception employees The parties stipulated that the following 12 employees who cast challenged ballots at the 25-26 May election were employed by the Re spondent at the times relevant as clerical/reception em ployees within the meaning of the Board affirmed Deci sion and Direction of Election in Case 2-RC-19504, in the positions set forth next to their respective names and, therefor, under that decision should be excluded from the bargaining unit Sophia Niebur Ayn Steele Geraldine Luciano Hyacinth Thompson Bill Wise Anita Hedlund Mary W Carter Betty Pasciutti Theodore Boyd Maureen Carrol Edna Strasburg Sidney Thompson 145 Secretary Secretary Receptionist Switchboard Switchboard/Door Cashier Receptionist Bookkeeper Office/Switchboard Office/Switchboard Office Switchboard The parties, while so stipulating, have sought to preserve their respective positions Accordingly, the Respondent in agreeing that the above named individuals are clerical/reception employees and as such, are excluded from the unit found appropriate in the Decision and Di rection of Election continues to except to that determi nation and to contend that the only appropriate unit also should include the clerical/reception employees in addi tion to the job categories that were included by the Re gional Director The General Counsel and the Union of course, reaffirm the correctness of the unit as found in the Regional Directors Decision I of course, am bound by the Board's unit determina tion in this matter As the clerical/reception status of the above named employees is unquestioned I find that they should be excluded from the unit and that the challenge to their ballots be sustained Irene Mitchell The Union withdrew its challenge to the ballot of dining room employee Irene Mitchell at the hearing and now agrees that Mitchell s ballot shoud be counted with those of the other dietary department em ployees 146 Thompson as noted originally was challenged by the Union on the ground that he no longer was employed The present stipulation re solves his status Carter and Hedlund also covered by this stipulation originally too were challenged on other grounds 983 The record shows that Mitchell, who wore the white dietary department uniform and who reported to that de partment's supervisor, Catherine Dempsey, assisted elder ly and infirm residents in the cafeteria dining section by carrying their trays from the checkout station to the tables and by clearing their tables after meals Occasion ally, these duties also were performed by Burt Burton and by Burton's part time regular replacement in the caf eteria, Theresa DuPont, whose unit replacement will be considered below In accordance with the parties' agreement, the chal lenge to Mitchell's ballot is overruled Florence Roberts The parties, as noted, subsequently agreed on the unit inclusion of Florence Roberts, de scribed in the testimony as a part time dining room em ployee who assisted Irene Mitchell in carrying trays from the cafeteria checkout line to tables for residents who needed such assistance and by clearing the tables, and who filled the salt shakers Roberts is one of the above referred 65 named employees whose placement within the unit was stipulated In accordance with the parties' stipulation, the chal lenge to Roberts' ballot is overruled Claude Hintzen and Frederick Manck In accordance with the parties stipulations at the hearing, I find that the challenge to the ballot of housekeeping department employee Claude Hintzen should be overruled and his ballot counted, but that the challenge to the ballot of doorperson Frederick Manck be sustained on the ground that he is in a job category excluded under the Regional Director's Decision and Direction of Election 146 The parties do not agree on the unit placement of the following Mary Vester Reese Although Reese s ballot at the rep resentation election was not challenged, the General Counsel opposes the Respondents position that Reese is properly within the unit, maintaining that she is a super visor within the meaning of the Act Reese, with the Salvation Army for more than 25 years has been at the residence since it opened in June 1966 having worked before then at other Salvation Army facilities During the times relevant Reese as chief cook at the residence, reported to dietary depart ment supervisor Catherine Dempsey At the time of the representation election the dietary department kitchen crew consisted of two cooks including Reese three short order cooks, including one who also performed other tasks as directed by Dempsey three dishwashers two pots and pans washers three to four food preparers four to five full time and part time food servers, and an employee who carried incoming food deliveries from the trucks to the storage area The dining room complement consisted of Irene Mitchell and Florence Roberts both of whom as noted, principally assisted elderly and infirm residents by carrying their trays and by clearing the tables, Bart Burton and, in his absence, Teresa DuPont 146 As noted the Union originally had challenged Hintzen s ballot on the ground that he no longer worked for the Respondent and that of Manck on the assertion that he was a volunteer and not an employee of the Respondent 984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Reese regularly substituted for Dempsey dunng Dempsey s absences from the residence, normally replac ing her as head of the dietary department on Tuesdays and Wednesdays of each week Dempsey was off, and dunng the 4 weeks annually when Dempsey was on va cation Leidy testified that when replacing Dempsey, Reese did not have all of Dempsey s authority Unlike Dempsey, Reese could not hire, fire, or evaluate employ ees Although Dempsey s responsibilities included plan ning menus for a week in advance, Reese did not do this during the weeks that Dempsey was on vacation, but in stead, this function was performed by Mrs Leidy, wife of the residence administrator , as an unpaid assistant to her husband Also unlike Dempsey, Reese did not attend supervisory meetings with Leidy and department heads where policy matters were discussed, including strategy concerning the union s organizational drive Leidy testified that Reese s principal authority while acting for Dempsey was to assign work to dietary em ployees and that Leidy had supported her in this regard Leidy recalled that on one occasion during the summer following the election, when Reese was filling the same role and functions at the residence as she had earlier at the time of the election, Reese reported to him that a certain kitchen employee had refused to perform an as signment she had given him Leidy went to see the em ployee and asked if he had any problem with doing the task that had been given to him by Reese The employee agreed to the assignment Although Leidy testified that the employees in the die tary department knew their jobs and did not require sub stantive oversight dunng Dempsey s brief absences from the residence the record does not support Leidy in this In addition to Reese s authority to independently assign work, as established by Leidy the testimony of employee Michael Wallace that Reese when substituting for Dempsey, could call in employees to work when the department was shorthanded and could give employees personal days off is uncontradicted Reese also assigned employees to work overtime, and has orally reprimanded Wallace for coming late to work In Aladdin Hotel 147 the Board held that [t]he appropriate test for determining the status of employees who substitute for supervisors is whether the part time supervisors spend a regular and sub stantial portion of their working time performing supervisory tasks or whether such substitutions are merely sporadic and insignificant [I]n Sewell Inc, 207 NLRB 325, 330-332 (1973), two relief persons who possessed supervisory authority when they worked, respectively, 1 day every 2 weeks and 2 out of 8 working days as substitute supervisors, were deemed to be supervisors within the meaning of Section 2(11) Here the record established that Reese substituted for Dempsey regularly and for substantial periods rather 147 270 NLRB 838 840 (1984) than irregularly or sporadically 148 Although she did not have Dempsey s authority to hire, fire or evaluate em ployees or to plan menus, Reese, when replacing Demp sey, was expected to assign work and overtime, to call in employees when extra help was needed and to give per sonal time off As described by Wallace, she also could orally reprimand dietary employees for lateness In short, when substituting for Dempsey, Reese exercised indicia of supervisory authority within the meaning of Section 2(11) of the Act Accordingly, noting the substantial number of employ ees who required supervision in the dietary department, particularly as the work done there affected health, I find, contrary to Leidy, that the dietary department was not self operative and that Reese who replaced Demp sey for about 40 percent of the standard workweek ex clusive of Dempsey s vacation time and personal days off, was a supervisor within the meaning of Section 2(11) of the Act and should be excluded from the unit Florence Levy Florence Levy s ballot was challenged by the Union as a snack bar employee The Respondent would include Levy in the unit as a dietary department employee and count her ballot 149 The snack bar which had no dining tables, served light fare such as cold sandwiches pies, pastries, dough nuts, soft drinks coffee, and tea The food dispensed in the snack bar was prepared in the Respondents cafeteria kitchen and the heavier items were brought to the snack bar by kitchen employees Lighter items, such as coffee was moved to the snack counter from the kitchen by snack bar employees such as Levy and Bart Burton and by volunteers who helped out at the snack bar Leidy did not know how many volunteers worked at the snack bar Snack bar work considered principally of stocking the area with light foods and beverages and in selling them over the counter The record is clear that the snack bar which as noted sold foodstuffs from the cafatena kitchen was an exten sion of and related to the cafeteria operation Employee Bart Burton who during the time in question spent most of his workday in the cafeteria dining room also was regularly assigned to the snack bar for 2 hours a day As Levy sold cafateria food in the same building, transport ing it from the cafeteria kitchen as necessary her func tions were well integrated with those of the Respond ent s other bargaining unit dietary employees In addi tion, as generally attested to by Leidy, Levy shared with the other Respondent's employees comparable pay rates the same job benefits, and other terms and conditions of employment and her overlapping association there with Burton, a cafateria dining room employee Noting Leidy s centralized control of the residence s day to day operations and the centralized formulation of personnel policies I find that at the time of the May election, Levy 148 Dempsey s customary work hours during her weekly 5-day sched ules were for 6 am to 2 p in and accordingly she normally was not present during the dining hour 149 Levy first employed by the Respondent in August 1974 worked only in the residence snack bar where she was assigned fulltime until she left the Respodent s employ sometime after the May representation elec tion SALVATION ARMY RESIDENCE was a member of the bargaining unit and that the chal lenge to her ballot should be overruled Burt Burton and Teresa DuPont The Union challenged the ballots of Bart Burton and Teresa DuPont on the ground that they were guards The Respondent denies this, contending that they are dietary department em ployees assigned to work in the dining room Leidy testified that Burton originally hired to work in the kitchen was reassigned in January to the dining room where he was employed before and during the May election Burton s dining room duties consisted of monitoring the cafeteria line from a desk near the checkout station, in occasionally helping elderly and infirm residents by carrying their trays from the checkout line to their tables and in clearing their tables after meals, as needed Rent at the residence included two meals daily and a third meal was available at extra cost Accordingly, Burton was furnished with a list of residents subscribing to the meals program many of whom were elderly If a rest dent did not go through the cafeteria line as expected, it was Burton s duty to alert the nursing staff so that it could be determined whether the missing resident was injured or ill The monitoring aspect of Burton s job also was to ensure that no one took a meal for which he had not paid or took an unreasonably large amount of food with out making additional payment Burton was expected to report such infractions to Leidy or to Front Desk Super visor Jaynes 150 Burton did not serve food Unlike employees in the dietary maintenance laundry and housekeeping departments, all of whom were re quired to wear their respective departments distinctively colored uniforms 151 Burton wore his own street clothes at work except that while in the dining room, Burton would wear a red jacket supplied by the Respondent that bore the residence emblem on the breast Leidy ex plained that it was residence policy that all male diners using the cafeteria whether resident guest, or staff, were required to wear jackets at meal times Such diners who did not have their own could borrow a like red jacket from the residence These red jackets similarly were worn by the male switchboard operators, by the front door guards and by personnel from other departments when relieving the door guards When not occupied in the cafeteria, Burton, as noted, also worked 2 hours each day in the snack bar, where he was free to remove his jacket 152 Although he continued 150 Although Leidy consistent with the Respondents position that Burton should be included in the unit testified generally that other em ployees also reported infractions the record is clear that this responsibil ity belonged most uniquely to Burton and in his absence to his part time replacement DuPont 16 1 The Respondents housekeeping department employees for exam pie wore gray uniforms while the dietary employees wore white Main tenance department employees worked in green Irene Mitchell who also worked in the dining room with Burton and DuPont his replacement also wore white 152 The Respondents employees also used the cafeteria but at differ ent times from the residents As Burton ate with the employees he did not monitor them as they came through the checkout line 985 his monitoring duties in the dining room, by the time of the hearing, Burton no longer worked in the snack bar Burton also had the only key to open and refill coin operated soda and candy machines on the roof and in the basement activities room Teresa DuPont s employment record shows that she was hired by the Respondent on 27 August 1981, in the classification of the dining room hostess However in ac cordance with the parties stipulation at the hearing, I find that DuPont s duties with the Respondent were the same as those of Burton when in the dining room where she replaced Burton, giving him days off The Respond ent regards DuPont as a part time employee because she was not assigned elsewhere in the residence when not substituting for Burton and did not work in the snack bar Accordingly, while in the cafeteria dining room, DuPont occupied Burton s desk to monitor the checkout line She reported rules infractions to management alert ed the nursing staff to residents who did not come for meals and assisted those who needed help carrying their trays Of those employed in the kitchen/dining room area only Burton and DuPont wore their street clothes at work DuPont s personnel employment record shows that starting 1 October 1981 she received four annual pay in creases of from 25 to 30 cents an hour By the time of the representation election DuPont had been Burton s regular replacement in the dining room for at least 2 years As there is no showing that Burton, alone among the Respondents employees, worked a 7 day week I find that DuPont replaced Burton in the dining room from 1/2 days each week at times when Burton was on vacation and when he otherwise was away from work Therefor it is concluded that DuPont was a regular part time dining room employee of the Respondent rather than a casual employee In Cornell University 153 in reviewing the dining serv ice facilities on a university campus which it considered analogous to those operated by a hotel residence the Board found a sufficient community of interest among the university s cafeteria dining room and kitchen em ployees, its snack bar employees and the employees who operate its vending machines as to include them all in a single unit As Burton was engaged in all of these func tions his assignments in these areas provide no basis for excluding him from the unit herein However a question remains as to whether the specif is responsibilities of Burton and DuPont in the cafeteria which include monitoring the checkout line and report ing to management the infractions of residents and guests concerning the taking of extra food gave them security functions that would warrant their exclusions as guards The record reveals that Burton and Dupont, respective ly ate with the other employees and did not monitor or report employee infractions There also is no evidence that Burton or in his place, DuPont are expected to personally confront cafeteria patrons found to be break ing the rules, but merely are required to report such vio lations to the Respondents officials 153 202 NLRB 290 (1973) 986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As the monitoring duties of Burton and DuPont al though partially directed toward compliance with the Respondents rule that cafeteria patrons should not take food for which they had not paid did not extend to overseeing employee compliance, and as they had no ob ligation to confront cafeteria patrons found to be in vio lation, I find that Burton and DuPont did not function as guards and that, therefor, they should be included in the unit and that the challenges to their ballots should be overruled 154 Having sustained and the challenges to the ballots of the 12 above named clerical/reception employees and Fredrick Manck and having overruled the challenges to the ballots of Claude Hintzen, Jocelyne Castillon Theo dore, Bart Burton, Teresa DuPont, Florence Levy and Florence Roberts and having determined that Mary Vester Reese and Irene Mitchell, whose unit replacement was at issue without regard to challenged ballots, respec tively, are excluded from and included within the unit, I find that at the time of the 25-26 May representation election, the bargaining unit consisted of 72 employees This number includes the 65 employees to whose inclu sion the parties have stipulated and the seven employees named above whom I would include either because the challenges to their ballots should be overruled or whose inclusion has been determined in different context 2 Majority status The General Counsel and Union contend that the Union has been the majority bargaining representative of the employees in the above unit since 17 March, when the Union made its written demand for recognition and bargaining based on 44 signed authorization cards, that the Respondents actions to counter the Union involved conduct so flagrantly unlawful as to cost the Union its majority support, that a fair election cannot be conduct ed and that therefor a bargaining order is warranted as the only effective remedy However in determining whether the Union had majority employee support on the date alleged the record shows that 5 of the 44 em ployees who ultimately signed authorization cards for the Union did not do so until after the Union s 17 March request for recognition and that one such employee even signed her card after the election These include Employee Date of Card Basil Blackman 2 April Thomas F Smith 16 May Weston Scantlebury 17 May Stanley Whitaker 18 May Maudrey Tull 27 May As the five above named employees signed their au thorization cards after the critical 17 March date and Tull signed after the election their cards cannot be counted to support the Union s claim for majority status as of that date 155 154 Pedro s Restaurant 246 NLRB 567 578 (1979) Lion Country Safari 225 NLRB 969 970 (1976) 155 Holiday Inn of Perrysburg Ohio 243 NLRB 280 291 enfd in rele vant part 647 F 2d (6th Cir 1981) A different view of the efficacy of such cards was expressed by the administrative law judge in Clark Equip Dolliana Brown In a portion of the record made before Judge Ohlbaum and incorporated here by stipula tion, the Respondent objected to receipt of Dolliana Brown's 156 authorization card, dated 4 March on the ground that its purpose had been misrepresented to Brown when she signed the card and that she had not known to what she was signing at the time Dolliana Brown testified that she had received the card from one of two other kitchen employees who worked a different shift than herself Larry Brown or Victor Brown, while seated in the residence cafeteria The employee who gave the card asked her to sign it When Dolliana Brown asked what the card was for, she was told that it was for the employees to get more money, a raise in pay Dolliana Brown explained that she did not have her spectacles with her and was not able to read the card for herself Accordingly, she was shown where to sign the card and did so In NLRB v Gissel Packing Co 157 in weighing the cir cumstances under which authorization cards are signed, the Supreme Court found that Employees should be bound by the clear language of what they sign unless that language is deliberate ly and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature In the present matter, the only testimony concerning the signing of Dolliana Brown s card was her own Noting that she incorrectly was told at the time that the card s purpose solely was to obtain a pay raise, that she could not read the card without her missing spectacles, and that she was not advised that the card might be used in connection with a union, either as a designation of bargaining agent or as a vehicle for getting an election, there is no reason for finding the card to be a valid union designation Accordingly Dolliana Brown s card is not counted in determining the Union s majority status 158 Kenneth Harass Housekeeping department employee Kenneth Harris identified his authorization card but in his early testimony stated several times that notwith standing the 13 March date shown on his card, he actual ment Co 278 NLRB 498 (1986) who found that cards signed after the Union s demands for recognition were valid union designations that should be counted towards establishing the Union s majority on grounds that the Union s request for recognition was continuing and as the mdi viduals named on the cards also appeared on a stipulated voting eligibil ity list However as the Board in its decision in Clark Equipment Co supra did not agree that a bargaining order was warranted it specifically found it unnecessary to address the validity of the authorization cards used to establish majority support It therefor appears that the Board re mains unwilling to count such subsequently signed cards toward the Union s majority status at least as of the critical date when majority was asserted and recognition requested The present matter also is distinguish able from Clark Equipment in that here there was no stipulated voting eligibility list 156 Brown a dietary department employee was assigned to the kitch en 157 395 U S 575 606 (1969) In Gissel Packing Co the Supreme Court approved Board law on determining the validity or invalidity of authori zation cards set forth in Cumberland Shoe Corp 144 NLRB 1268 (1963) enfd 351 F 2d 917 (6th Cir 1965) and reaffirmed in Levi Strauss & Co 172 NLRB 732 (1968) 16 8 Cf Keystone Pretzel Bakery 242 NLRB 492 493-494 (1979) SALVATION ARMY RESIDENCE 987 ly had signed it on 11 March Later, before leaving the witness stand, Harris recalled that he in fact had signed the card on the date shown, 13 March Although Harris' difficulty in recalling this and other events, and his self contradictions rendered his testimony uneven and less re liable Harris testimony verifying his authorization card is uncontradicted and his card is accepted as a valid des ignation as of 13 March Conclusions as to the Union s majority status It has been found above that the authorization card signed by employees Basil Blackman, Thomas F Smith, Weston Scantlebury, Stanley Whitaker, Maudrey Tull and Dolliana Brown should not be counted in establish ing the Union s majority status as of 17 March Howev er, even with these exclusions the record contains the signed and dated valid authorization cards of 38 other employees by that date Accordingly, I find that by the critical date of 17 March, as of when the complaint alleges that the Union had achieved majority status and made its written re quest for recognition and bargaining for the 72 employ ees in the bargaining unit, 38 employees, a majority, had freely authorized the Union to represent them by signing unequivocal authorization cards 159 tices 5 Thus the Court placed its approval on the Board's us of a bargaining order in less extraordi nary' cases where the employers unlawful conduct has a `tendency to undermine [the Union s] majori ty strength and impede the election processes 6 The Court indicated that when the unfair labor practices are less flagrant and the union at one time had a majority support among the unit employees the Board may consider the extensiveness of an employers unfair prac tices in terms of their past effect on election con ditions and the likelihood of their recurrence in the future If the Board finds that the possibility of erasing the effects of past practices and of en sunng a fair election (or a fair run) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue 7 Gissel supra at 613-614 6 1d at 614 7 Id at 614-615 3 The applicability of a bargaining order It has been found that on 17 March the Union repre sented at least 38 of the Respondents 72 bargaining unit employees-hence a majority-by virtue of the employ ees execution of authorization cards which, on their face, duly designated the Union as their exclusive repre sentative for purposes of collective bargaining with the Respondent Therefor, it was concluded that the Union had been validly selected by a majority of the Respond ent s employees as their exclusive bargaining represents tive in what the Board has determined to be the appro priate unit It is not controlling that the Union thereafter may have lost its majority status for it must be presumed that but for the Respondent's unfair labor practices, ma jority status would have been retained In considering whether a bargaining order was war ranted to remedy a Respondents unfair labor practices the Board, in its recent decision in Koons Ford of Annap ohs, 160 again stated the applicable rule of NLRB v Gissel Packing Co 161 In Gissel, the Court delineated two types of situa tions where bargaining orders are appropriate (1) exceptional cases marked by outrageous and pervasive unfair labor practices and (2) less ex traordinary cases marked by less pervasive prac 169 The authorization cards obtained by the Union included blank lines for the employees name social security number address occupation wage sex the Employer Employers address and date The cards text shown below was followed by an employee signature line I hereby request and accept membership in the Production and Sales District Council HERE AFL-CIO Local 517-S and des ignate and authorize it to represent me in collective bargaining in all matters relating to my wages hours and conditions for employment All information will be held strictly confidential 160 282 NLRB 506 (1986) 161 395 U S 575 (1969) In finding that a bargaining order is warranted in the present matter, I conclude that the Respondents unfair labor practices would come under the second Gissel cate gory, described above From April to the time of the 25 and 26 May represen tation election, there were approximately 19 instances182 in which the Respondents officials and representative including Major Leidy, the residence administrator the deputy administrator, Major Garrel the dietary depart ment supervisor Catherine Dempsey, and the mainte nance supervisor Charles Scales and its attorney Ken neth A Margolis, respectively, either threatened employ ees with closure and/or sale of the residence facility with appurtenant job loss, threatened more onerous working conditions and changes in work rules threatened job loss by contracting out employees work and the layoff of certain employees, placed the onus on the Union for re fusing to grant requested pay increases interrogated em ployees about their union sympathies and activities, those of other employees, the content of their Board affidavits, and the Union s organizational campaign declared the futility of selecting the Union as bargaining represents tive created an impression of surveillance of employee union activities accused the Union of belonging to the Mafia solicited an employee to induce other employees to vote against the Union, and solicited employee griev ances about pay The most serious of the threats were those of closure/or sales of the residence facility which threats were made directly by Leidy, Scales, and Dempsey, and were implied by Garrel during the height of the Union s 182 The 19 incident figure was derived by counting as two each mci dent occurring at the May employee meetings that had been repeated for the next group of employees and by adding such totals to those violations that happened only once 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD campaign The most ornately detailed of these was Gar rel s implied threat to close, made during his explanation of slides illustrating the closing of the unionized Even tide Nursing Home while he had been in charge and his further account of how the Salvation Army had recycled that facility to its nonunion Harbor Light detoxification program, which employed no Eventide employees To emphasize this point, Garrel showed slides of the starkly vacant Eventide buildings, followed by a series of slides protraying the building under Harbor Light and depict ing employees who, as Garrel explained, were happy be cause they were working So that no available relevant employee should miss this message, Garrel s entire slide presentation, featuring the Eventide/Harbor Light story, was repeated at another meeting that same afternoon before the other half of the unit Leidy, too, was involved in these threats He not only assisted Garrel in the Eventide/Harbor Light presenta tion by operating the projector while Garrel talked but independently at a different meeting threatened employ ees that if the Union should come in and demand too much money the Salvation Army could gust close the residence building At yet another such meeting, Leidy simply told employees that if the Union came in, the resi dence would be closed Consistent with the Respondent s pattern of pairing its employee meetings to reach all available unit employees, these statements by Leidy, too, were repeated so as to be heard by just about all bargain ing unit personnel Dietary Department Supervisor Dempsey made a simi lar threat on a lesser scale when she told an individual employee that if the Union came in, there was a chance that the Salvation Army would sell the Williams Resi dence building Just a week before this, after the employ ee to whom this remark was made had lost time from work because of attendance at a Board representation case hearing, Dempsey unlawfully told the employee that things were going to be rougher now for him be cause (the Respondents officials) were going to be watching him Maintenance Supervisor Acales as found above, during two conversations with a painter in his depart ment, threatened if the Union won the election, the em ployees work would be taken away and contracted out that the residence would be closed and the painters would be laid off Alternatively, it was Scales who promised that if the Union lost the election the painters would receive a good pay increase Other threats of reprisal and coercive statements also were made Leidy threatened a group of employees that if the Union came in, the employees would lose break time and the rules around the residence would change Before the same group of employees, he accused the Union of belonging to the Mafia expressed the futility of bringing in the Union, an intent not to bargain in good faith by declaring that if the Union became bargaining representative he would not give it a penny and by so liciting employee grievances concerning pay by inviting the employees to talk to him about this rather than by going to the Union Leidy also interrogated an employee about the Union's organizational campaign created an impression that another employees union activities were under surveillance, and unlawfully solicited an employee to attempt to get other employees to vote against the Union In addition Leidy placed the blame on the Union when he refused an employees request for a pay in crease As the Board held in Koons Ford of Anapolis 163 In determining whether a bargaining order is ap propriate in addition to examining the severity of the violations committed, the Board also examines the present effects of the coercive unfair labor prac tices which would prevent the holding of a fair election It is highly significant that many of the violations present here were of an extremely serious nature Both the courts and the Board have long recog nized that threats of job loss (i e , plant closure, dis charge, and layoff) because of union activity are among the most flagrant interference with Section 7 rights and are more likely to destroy election condi tions for a lengthier period of time than other unfair labor practices Indeed, the natural and likely result of the threats found here was to reinforce the em ployees fear that they would lose employment if they persisted in their union activity In Midland Ross Corp v NLRB 164 the U S Court of Appeals, for the Third Circuit agreed with the Board that a bargaining order was warranted to remedy an em ployer s implied threat made before a presentation elec tion to close its plant as it had recently closed a nearby unionized facility if the employees chose a union to rep resent them In so concluding, the court noted that senior employer officials had been involved and that the threat had been communicated to a significant percent age of the unit employees Here, as in Midland Ross the two most senior resident officials at Williams were involved in making the implied threat to close and possibly to reallocate the residence's premises Garrel then deputy administrator as noted, made this threat while explaining the Eventide/Harbor Light slides with the participation of Leidy the admin strator who then was operating the slide projector Gar rel s words to this effect were deliberately repeated before the remaining available unit employees at a second such session that same afternoon so that this mes sage was heard by virtually the entire elevant employee complement Accordingly the bargaining order prerequi sites of Midland Ross could have been met here on the basis of Garrel s implied threat standing alone However, more occurred As found above Leidy made two independent direct threats to close the facility each before two successive meetings of employees who had been required by the Respondent to attend and, thereby also conveyed these threats to perhaps the entire bargaining unit After the election was over, the Respondent continued its unlawful conduct Immediately after the election on 163 Supra at 5080 184 617 F 2d 977 987 (3d Cir 1980) cent denied 449 U S 871 (1980) enfg 239 NLRB 323 (1978) SALVATION ARMY RESIDENCE 26 May Leidy called a group of employees together and told them, in effect, that if it were not for the Union s continuing presence there would be no delay in discuss ing and implementing a new wage and benefits program Just about a year later, the Respondents counsel, Margo Its, unlawfully interrogated two employees As the Board noted in Long Airdox Co ,16 5 Such postelection conduct erodes the possibility of ensuring a fair rerun election See, e g , Chromally Mining & Minerals v NLRB, 620 F 2d 1120, 1131 fn 8 (5th Cir 1980) (postelection violations are always relevant because they demonstrate that the employer is still opposed to unionzation '), Laird Printing 264 NLRB 369, 371 (1982) (postelection violations suggest likelihood of a respondent again engaging in illegal conduct ) The serious and extensive other violative conduct, de scribed above, repeatedly and persistently engaged in by the Respondents officials suggest a carefully orchestrat ed general campaign to destroy employee support for the Union The success of the Respondent's campaign is it lustrated by the visible diminution of union support during the period of the Respondents most flagrant vio lations By 17 March, the Union had obtained at least 38 valid authorization cards out of a total of 72 bargaining unit employees Between 2 April and 18 May 4 addition al employees named above signed cards, raising the Unions total preelection support to 41 employees 166 Yet at the 25-26 May election, the Union received only 30 votes 167 The impact of the Respondent's unlawful conduct upon the Union s margin of support was such that, by pothethically, even if all 6 ballots where the challenges, however derived, were overruled to be opened and counted in the Union's favor and added to the Union's 30 received votes, the Union still could not obtain the numerical majority necessary for certification as repre sentative Although several years have passed since the Re spondent s principal pattern of unlawful activity and at least 3 years since Attorney Margolis unlawfully interro gated two employees the Board and the court have found that where as here, the Respondent's unfair labor practices have been serious and pervasive and have con tinued even after the representation election the lasting effects of such conducts cannot be eradicated by the mere passage of time, and that while passage of time is regrettable, it is unavoidable and not a sufficient basis for denying a bargaining order 168 186 277 NLRB 1157 (1985) 166 The record shows that one more employee signed an authorization card on 27 May the day after the election had ended 167 Of the 19 ballots challenged at the election 18 challenges were by the Union and 1 by the Board agent It has been determined that 13 of the Union s challenges should be sustained and that the remaining 5 Union challenges and the 1 challenge by the Board agent be overruled One of two other employees whose ballots had not been challenged but whose unit status was indispute also was included in the unit The other was excluded 168 Quality Aluminum Products 278 NLRB 338 (1986) Exchange Bank 264 NLRB 822 824 (1982) enfd 732 F 2d 60 (6th Cir 1984) Hedstrom Co v NLRB 629 F 2d 305 (3d Cir 1980) 989 In Hedstrom Co supra where, as here earlier threats of closure subsequently were exacerbated by further unfair labor practices, the court of appeals supported the Board s finding that the passage of time did not improve the prospects of a fair second election The court noted that the later unfair labor practices indicated the Re spondent's continued vigorous opposition to the Union and provided no reason to diminish the employees con cern that they would lose their jobs if the Union should win the election In the present matter, as well, the Re spondent's acts constitute a pattern of flagrant and perva sive coercion with lingering effects not readily dispelled From the many serious violations found I conclude that the possibility of ending the effects of the Respond ent s unfair labor practices and of conducting a fair elec tion by use of traditional remedies is slight Requiring the Respondent simply to refrain from such conduct will not eradicate the lingering effects of the violations and an election would not reliably determine genuine, un coerced employee sentiment Therefor, I find that the employees representation sentiments expressed here through authorization cards, would be better protected by issuance of a bargaining order than by traditional remedies Accordingly, the Respondent should be required to bargain with the Union as the duly designated represent ative in the unit found appropriate, effective 17 March 1983 the date that the Union acquired authorization cards from a majority of bargaining unit employees and requested recognition 169 E Objections to the Election in Case 2-RC-19504 The Union s objections to the election closely parallel certain of the unfair labor practice allegations set forth in the complaint where violations have been found, includ mg, in effect, that the Respondent at various preelection meetings where attendance was mandatory had told em ployees that the Respondent would lose the residence if the Union won the election, that a Salvation Army offs cer while showing employees pictures of a nursing home had explained that the Salvation Army had closed that facility after a union had won an election there and that a Respondents officer had advised employees that if they voted for the Respondent, the Salvation Army would meet with them to work out their grievances These unfair labor practices precluded the exercise of a free and uncoerced choice in the election 170 189 Clark Equipment Co 278 NLRB 498 (1986) prominently cited in the Respondents brief is inapplicable to whether the election here should be set aside As described in Baton Rouge Hospital 283 NLRB 192 (1987) 170 No merit is found to the Unions further objection raised under Peerless Plywood Co 107 NLRB 427 429 (1954) that the election should be set aside because the Respondent had conducted a mandatonly attend ed meeting of employees to campaign against the Union less that 24 hours before he start of the election In Peerless Plywood supra the Board established that an election shall be set aside where an employer or union alike has made an election speech on company time to a massed assembly of employees within 24 hours before the scheduled time for conducting an election However as the record shows that the last such preelection meeting conducted by the Respondent on 24 May ended be tween 10 15 and 10 30 a in while the election did not commence on 25 May until 1 p in there was compliance with the 24 -hour rule in Peerless Plywood 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In view of the bargaining order found applicable, it is recommended that the election in Case 2 -RC-19504 be set aside and that that representation proceeding be dis missed IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respond ent s operations described in section I above have a close intimate and substantial relationship to trade, traf fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing ccom merce and the free flow thereof (n) Soliciting employees to attempt to induce other employees to abandon their support for the Union 4 The following unit appropriate for purposes for col lective bargaining with in the meaning of Section 9(b) of the Act All full time and regular part time dietary, house keeping, maintenance and laundry employees em ployed by The Salvation Army Williams Mermorial Residence, at 720 West End Avenue New York New York, but excluding all other employees, clerical/reception employees doorpersons, profes sional employees guards and supervisors as defined in the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Board s exercise of jurisdiction in this matter will effectuate the purposes and policies of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 The Respondent violated Section 8(a)(1) of the Act by (a) Directly threatening its William Memorial Rest dence employees repeatedly with closure of that facility if they chose the Union as their bargaining agent (b) Impliedly threatening its Williams Memorial Rest dence employees with closure of that facility and layoff should they choose the Union as bargaining agent (c) Threatening employees that, if the Union won the election, the Respondent would take away the employ ees jobs by contracting out their work (d) Threatening persons employed as painters that if the Union won the election the painters would be laid off (e) Threatening employees with loss of breaktime and changes of work rules if they supported the Union (f) Promising employees that if the Union lost the rep resentation election employees employed in their job classification would receive a good pay increase (g) Telling employees that if they supported the Union, bargaining would be futile (h) Telling its employees that the Union belongs to the Mafia (i) Soliciting grievances concerning pay from its em ployees and implying offers to adjust them in order to induce its employees to abandon the Union 0) Creating an impression that it has engaged in sur veillance of the union activities of its employees (k) Blaming the Union s presence for its refusal to grant requested pay increases and for delay in discussion and implementing a new wage and benefits program for its employees (1) Coercively interrogating its employees about their union activities, sympathies desires, the activities of other employees, the content of their affidavits given to the Board, and the Union's organizing campaign (m) Threatening employees who attended Board pro ceedings and/or who supported the Union with surveil lance and with nonspecific reprisals 5 On or about 17 March 1983, and at all times materi al the Union represented a majority of the employees in the above described appropriate unit, and has been the exclusive representative if all employees for purposes of collectively bargaining within the meaning of Section 9 of the Act 6 The unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 7 The Respondents urlawful conduct interfered with the representation election held on 25 and 26 May 1983 171 THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices I shall recommend that it be required to cease and desist and to take certain affirma tive action designed to effectuate the policies of the Act For the reasons set forth above, I shall recommend that the Respondent be ordered on request, to bargain collec tively with the Union as the exclusive collective bargain ing representative of the employees in the above de scribed bargaining unit As a bargaining order has been found appropriate it is recommended that the election held in Case 2-RC-19504 be set aside and that the petition in that matter be dis missed ORDER The Respondent, Salvation Army Williams Memorial Residence, New York New York its officers agents successors, and assigns shall 1 Cease and desist from (a) Directly threatening its Williams Memorial Rest dence employees with closure of that facility if they choose Local 517-S, affiliated with Production Service and Sales District Council, Hotel Employees and Restau rant Employees, AFL-CIO, CLC as their bargaining representative (b) Impliedly threatening its Williams Memorial Rest dence employees with closure of that facility if they should choose the Union as bargaining agent by describ 171 As noted the six challenged ballots to which the challenges have been overruled if opened and counted were not numerically sufficient to change the outcome of the 25-26 May election SALVATION ARMY RESIDENCE 991 ing to them how the Salavation Army had closed and re allocated another of its facilities after that other location had become unionized (c) Threatening employees that, if the Union won a representation election, the Respondent would take away the employees jobs by contracting out their work (d) Threatening employees that, if the Union won a representation election, the employees employed in their job classifications would be laid off (e) Threatening employees with loss of breaktime and changes in work rules if they supported the above named Union (f) Telling employees that if they chose the Union to represent them, bargaining would be futile (g) Promising employees that, if the Union lost a rep resentation election, workers employed in their job clas sifications would get pay increases (h) Telling its employees that the Union belongs to the Mafia (i) Soliciting grievances from its employees and imply ing offers to adjust them in order to induce its employees to abandon the Union (1) Creating an impression that it was engaged in sur veillance of the union activities of its employees (k) Blaming the Union for its own refusal to grant re quested pay increases and for delay in discussing and im plementing a new wage and benefits program for its em ployees (1) Interrogating its employees about their union activi ties sympathies desires, those of other employees, the content of their affidavit given to the Board and the Union s organizing campaign (m) Threatening surveillance and unspecified reprisals by telling employees who have a attended representation hearings and who otherwise support the Union that it is going to be rougher for them now because the Respond ent's officials were going to watch them (n) Soliciting employees to induce other employees to abandon their support for the Union (o) Refusing to recognize and, upon request, bargain with the above named Union as the exclusive collective bargaining representation of its employees in the follow ing unit All full time and regular part time dietary, house keeping maintenance and laundry employees em ployed by The Salvation Army Williams Mermorial Residence, at 720 West End Avenue New York, New York, but excluding all other employees, clerical/reception employees, doorpersons, profes sional employees, guards and supervisors, as defined in the Act (p) In any like or related manner interfering with, re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Upon request, recognize and bargain with Local 517-S, affiliated with Production, Service, and Sales Dis trict Council, Hotel Employees and Restaurant Employ ees, AFL-CIO, CLC as exclusive collective bargaining representative of its employees in the bargaining unit set forth above, with respect to wages, hours, and other terms and conditions of employment and, if an under standing is reached, embody such understanding in a signed agreement (b) Post at its New York, New York residential facility copies of the attached notice marked Appendix 173 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Re spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein IT IS FURTHER ORDERED that the election held on 25- 26 May 1983 in Case 2-RC-19504 is set aside and that the petition in that matter is dismissed 113 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board