Howard Johnson Motor Lodge

HOWARD JOHNSON MOTOR LODGE 303 Howard Johnson Motor Lodge and Chauffeurs, Teamsters and Helpers Local Union No. 364, a/w the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 25-CA-13481 24 September 1984 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 29 May 1984 Administrative Law Judge Robert A. Giannasi issued the attached decision.' Thereafter the Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt his recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Howard Johnson Motor Lodge, South Bend, Indiana, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Board's Order of 30 Septem- ber 1981. 1 This hearing was held pursuant to the 7 November 1983 Board Order in accordance with the 22 April 1983 remand order of the United States Court of Appeals for the Seventh Circuit NLRB v Howard John- son Motor Lodge, 705 F 2d 932 (7th Cir 1983), denying enf and remand- ing Howard Johnson Motor Lodge, 258 NLRB 519 (1981) 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cm 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE ROBERT A. GIANNAsi, Administrative Law Judge This case was tried in South Bend, Indiana, on Decem- ber 13, 1983, pursuant to an order of the Board, dated November 7, 1983, directing a hearing mandated by the United States Court of Appeals for the Seventh Circuit On April 22, 1983, the court of appeals issued a deci- sion' denying enforcement of a Board Order 2 finding 1 705 F 2d 932 (1983) 2 258 NLRB 519 (1981) that Respondent had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Charging Party Union which had been certified by the Board as having won a representation election. The certification was dated February 20, 1981, and the Board's bargaining order was dated September 30, 1981. The court consid- ered Respondent's objections to the election, which had been rejected without a hearing, and remanded the pro- ceeding to the Board for an evidentiary hearing on Re- spondent's objection that the "pro-union conduct" of Su- pervisor Sandra Paquin required that the election be set aside The court of appeals decided the case under the Board's rule that "[a]lthough the mere participation of a supervisor in the organizational campaign of a union will not warrant setting an election aside, elections may be in- validated in two possible situations: first, when employ- ees are led to believe, because of the supervisor's activi- ties, that the employer favors the union, and second, when employees may be coerced into supporting the union out of fear of future retaliation by the pro-union supervisor." 705 F.2d at 934, citing both Board and court cases Applying the second part of this rule, the court or- dered a hearing on these alleged facts. Relying on the affidavit of the lodge's manager and the transcript of the hearing held prior to the repre- sentation ekction, the Company made the following allegations. Sandra Paquin attended an organization- al meeting at a union hall where she signed, as did other employees, a union authorization card During the organizational campaign, Sandra Paquin distributed union buttons to employees to wear while working. The pro-union activities became ex- plicitly coercive when, according to the lodge man- ager's affidavit, Sandra Paquin told an employee that "she was going to be one of the first ones to go if the Union got in." Although this alleged threat was directed to a single employee, the words em- ployed revealed an intent to mete out reprisals to several employees [Id. at 934-35.] The court also noted that Paquin "possessed the au- thority to support any threats with action As the head housekeeper, she assigned work to the housekeepers, granted leaves of absence and was the sole evaluator of the housekeeper's work." Ibid The court rejected the ar- gument that Paquin lost such authority simply because she had been fired by Respondent some 3 weeks before the election The court pointed out that, according to the lodge manager's affidavit, Paquin told other employees that "she was going to get her job back with full back pay" and that, "[In light of this statement, the employ- ees could have reasonably believed that they would be subject to supervisor Paquin's displeasure if the Union failed to win the election." Id. at 935. Actually Paquin's discharge was found to have been unlawful under the Act by the Board in a separate unfair labor practice proceeding because she was fired by Re- spondent for refusing to commit unfair labor practices.3 3 261 NLRB 866 (1982) 272 NLRB No. 54 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The decision was upheld by the United States Court of Appeals for the First Circuit and Paquin was ordered re- instated to her former position with full backpay 4 In a subsequent proceeding, on September 18, 1983, Paquin apparently declined reinstatement and accepted some $18,000 in backpay in settlement of the claim arising from her unlawful discharge 5 Allegations that Paquin Passed out Union Buttons and Threatened to Fire Employees if the Union Won the Election The most significant allegations which influenced the court of appeals in its decision to remand the case for a hearing were that Paquin "distributed union buttons to employees to wear while working" and that, according to a hearsay account in an affidavit submitted by Re- spondent from Lodge Manager William Collins, Paquin told an employee that "she was going to be one of the first ones to go if the Union got in " Neither of these al- legations was supported by credible testimony in the remand proceeding In support of the first allegation, Respondent offered only the testimony of employee Rose Leeper, who as- serted that Paquin handed her a union button on one oc- casion No other employer testified that Paquin passed out union buttons, and Paquin credibly denied ever doing so I reject Leeper's testimony as unreliable and thus find that at no time during the election campaign did Paquin pass out union buttons Rose Leeper testified that, while eating lunch one day in the linen room, Sandra Paquin reached into her desk and handed Leeper a prounion button In response to Leeper's question whether wearing the button would "get [Leeper] in trouble," Paquin informed Leeper that she could wear it on her personal clothing Leeper also testified that "Dennis 6 said I could wear it" According- ly, Leeper placed the button on her own sweater, which she was wearing under her Howard Johnson uniform The button was visible, however, because Leeper's uni- form jacket was unbuttoned Some 2 hours later, Lodge Manager Collins told her to remove the button and she did so 7 Leeper could not recall the exact date on which these events took place but was able to place them as oc- curring prior to the election 8 Leeper also testified that she never attended any union meetings and "never talked union with [Paquin] " Paquin categorically denied that she ever had union buttons or literature in her possession and testified that she did not give a union button to Leeper and had not at 4 702 F 2d 1 (1983) 5 In the course of my deliberations I have taken official notice of and read the decisions and the record in the earlier unfair labor practice pro ceeding involving Respondent The record in that proceeding involved some of the same events which were the subject of this remand proceed mg and other events which are related and thus relevant to the issues under consideration herein 6 This was an apparent reference to Dennis Mark an employee who was a leader in the union campaign 7 Collins conduct was litigated in the prior unfair labor practice pro ceeding involving Paquin s dismissal and was found to have constituted an unfair labor practice by Respondent 261 NLRB at 867-868 8 In the earlier proceeding, Collins testified that the incident took place on December 8, 1980 any time during the election campaign passed out union buttons or literature She also denied advising Leeper that she could wear the button on her personal clothing, but not on her uniform I credit Paquin on this issue Her testimony on this point was firm and it derives some support from the record No other witness testified to having observed Paquin passing out union buttons or literature Employee Debra Williams testified that she had never received any such material from Paquin and both she and employee Shirley Wallace testified that they had never observed Paquin even wearing a union button In contrast to Paquin, Leeper appeared to be a very nervous witness who seemed unsure of herself, generally, and also unsure of the answers she gave to particular questions Indeed, on the only issue of significance about which she testi- fied, there are serious problems In the earlier proceed- ing, which dealt in part with Paquin's dismissal, the Board explicitly found that Leeper was given her union button by Dennis Mark (261 NLRB at 869) Reference to Leeper's testimony in that proceeding reveals that, on August 31, 1981, Leeper testified under oath that Dennis Mark gave her the union button Q (By Mr Gatzke) Ms Leeper, the button that you had that day on your blouse, in December, that Mr Collins asked you to remove, do you remember how you got that button? A Well, I really don't quite remember I thought maybe Sandy had given it to me or Dennis I don't know how I put that But I know now that Sandy said "You can wear the button, Rose, but don't put it on your uniform" When I got home that day, I remember it was Dennis that handed me that button In an unsigned and unsworn statement, dated February 5, 1981, Leeper asserted that Paquin had given her the button But at the above-noted hearing, she testified that that statement was erroneous, and she twice reaffirmed, in her testimony, that she was given the button by Dennis Mark and further asserted that her testimony in this respect was the truth Indeed, she testified that her reason for not signing and swearing to the February 1981 statement was that she "didn't know" who, Paquin or Mark, had given her the button Her testimony about the whole incident seemed confused In the remand proceed- ing no reference was made by Leeper, or by counsel for Respondent or the Regional Director, to Leeper's testi- mony in the prior proceeding In view of the confusion, and, indeed, the inconsisten- cy between Leeper's testimony in the remand hearing and the previous unfair labor practice proceeding, I cannot credit Leeper's testimony that Paquin handed her a union button or that Paquin informed her that she could wear it on her personal clothing On the contrary, I accept Paquin's credible denial that she did so I also credit Paquin's testimony that she at no time passed out prounion buttons or literature The basis of Respondent's second allegation is an affi- davit of Lodge Manager Collins, given on February 5, 1981, which is a hearsay account of a threat purportedly HOWARD JOHNSON MOTOR LODGE 305 made by Paquin to another employee. In pertinent part, the affidavit reads as follows: [D]uring the two weeks prior to the election Sophie Clemens, one of the housekeepers . . . mentioned that Sandra Paquin had told Shirley Wallace that she was going to be one of the first ones to go if the Union got in. Respondent was unable to adduce any direct testimony in support of this allegation. Clemens, who according to the affidavit, allegedly transmitted news of this threat to Collins, specifically denied, in her testimony at the remand hearing, ever speaking to Collins about the matter, and she did not testify about talking to Wallace concerning any threats. Wallace, who was purportedly the object of the threat, testified that Paquin never made any statements to her about the Union No other employ- ee testified concerning threats made by Paquin. Accord- ingly, the record is devoid of any competent evidence that Paquin threatened employees with discharge or loss of work. I thus cannot find that any such threats were made.9 Paquin's Other Alleged Union Activities and Supervisory Authority Devoid of the allegations of Paquin's passing out union buttons and threatening employees, Respondent's conten- tion that Paquin's conduct warranted setting aside the election is essentially based on its assertion that Paquin was a leader in the prounion campaign and that, by virtue of her position as a "major" supervisor, employees would have reasonably feared retaliation from her if they failed to vote for the Union. In view of the fact that there is no specific evidence in this record of threats of retaliation by Paquin or fear on the part of the employ- ees of supervisory retaliation by Paquin if they did not support the Union, in order for the Respondent to pre- vail in this regard, I would have to find that Paquin's po- sition and union activity were such that, in and of them- selves, they would have had a coercive effect on the em- ployees. Based on this record, I cannot make such a find- ing. I turn first to Paquin's supervisory status '° I find that Sandra Paquin is a supervisor within the meaning of Sec- tion 2(11) of the Act." 9 Respondent makes no mention of this or any other alleged threat by Paquin to employees in its brief to me I therefore assume that it has dropped the alleged threat to Wallace as a basis for overturning the elec- tion is No specific findings have ever been made with respect to Paquin's supervisory authority In this proceeding, Paquin voted in the election but her vote was challenged Even though the challenge was never re- solved, the Board, in overruling the objections without a hearing, accept- ed as true Respondent's contention that Paquin was a supervisor The court of appeals did likewise, although it recited some of the record evi- dence in support of supervisory status In the related but separate unfair labor practice proceeding, the General Counsel conceded that Paquin was a supervisor and the Board's finding, affirmed by the United States Court of Appeals for the First Circuit, must be read to have assumed su- pervisory status " Sec 2(11) of the Act reads as follows The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or From November 1979 until mid-December 1980, Paquin was the head or executive housekeeper with some authority over between six and eight other house- keeping employees.' 2 During the relevant period, she re- ported directly to Lodge Manager Collins Paquin and Collins were the only salaried personnel working for Re- spondent at the South Bend location. The remainder of the employees were paid on an hourly basis 13 There were approximately 10 other employees in the unit who were either maintenance people or desk clerks and who were clearly not supervised by Paquin The only evidence of Paquin's supervisory authority in this record is her own testimony during the preelection representation hearing and certain documentary evidence submitted at that hearing The transcript of that proceed- ing reveals that she began her employment as head or executive housekeeper in November 1979. She did not have the authority to hire, fire, set wages, or grant wage increases, promote, transfer, or lay off employees. She participated in the interview of some applicants for em- ployment and did recommend the hire of employees. However, the final decision to hire was apparently made by higher authority Paquin also testified that 80 percent of her time was spent doing laundry and cleaning rooms just like the other housekeeping employees. She spent about 15 percent of her time doing other cleaning chores and, according to Paquin, about 5 percent of her time was spent supervising employees Paquin had the authority to grant time off to house- keeping employees and she did so using independent judgment. She also assigned work to them—actually she assigned housekeepers to clean particular rooms, sched- uled their work," and inspected the rooms they cleaned She met with the lodge manager occasionally to discuss the work of the housekeepers and their schedules Paquin also had the authority to reprimand employees, although responsibly to direct them, or to adjust their grievances, or effective- ly to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment Possession of any one of the enumerated factors confers supervisory status, provided that Independent judgment is utilized. See NLRB v Ye- shiva University, 444 U S 672, 682 fn 13 (1980), Butler-Johnson Corp v NLRB, 608 F 2d 1303, 1306 fn 4 (9th Cir 1979) " At the representation hearing, Paquin testified that she supervised six employees Employees Williams and Wallace confirmed this during their testimony during the remand hearing In the prior unfair labor prac- tice proceeding, the Board found that Respondent employed "6 or 7" housekeepers (261 NLRB at 867) In its brief to me, however, Respond- ent states that Paquin supervised eight employees, apparently referring to the list of housekeeping employees mentioned by a witness at the repre- sentation proceeding It is possible that two of the housekeepers on this list did not work directly under Paquin or worked on a different shift In the remand proceeding, Paquin is represented as having testified that there were 15 employees under her supervision Because this number is clearly wrong, I believe either that it was an error in the transcript or that Paquin misunderstood the question Thus, it appears that Paquin su- pervised either six, seven, or eight employees and I cannot really deter- mine which figure is correct 13 Although salaried, Paquin received the same holidays, vacation time, and benefits as the other employees " Paquin testified that It was her practice to schedule work according to seniority When work was available she would schedule the more senior employees first However, she also noted that this practice was subject to the control of Collins who, on occasion, would instruct her to allot more working hours to less senior but more efficient employees 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lodge Manager Collins had the "final say" on repri- mands and had refused to uphold her at times when she wanted to reprimand an employee Paquin testified that she wrote up two reprimands during the year she held her position, but that nothing came of either one 15 Doc- umentary evidence submitted in the representation case also indicates that during September and October 1980 Paquin completed written evaluation forms for each of the employees she supervised There is no indication in the record, however, that these evaluations were part of a regular periodic evaluation program or that Paquin or any other management personnel predicated any decision on the substance of these evaluations Finally, it is clear that Paquin was never the sole person with authority over housekeepers at the motel at any particular time The lodge manager was always present while Paquin was on the job I next consider Paquin's union activities As previously noted, Respondent contends that Sandra Paquin was a leader in the union campaign However, such an allega- tion is not supported by the evidence To begin with, findings in the prior unfair labor practice case establish that two other employees, Dennis Mark and Tom Ro- spopo, were actually the moving forces in the prounion campaign at Respondent's South Bend location Both so- licited employees to sign cards, and Mark distributed union buttons and asked employees to join the Union 261 NLRB 867 That they were the leaders in the union campaign is also amply demonstrated by evidence in this record There was testimony that Rospopo was the em- ployee who first petitioned the Union to represent Re- spondent's employees and that he advised the employees of union meetings and asked them to sign cards Mark passed out union buttons, attended union meetings at which he urged the employees to vote in favor of the Union, and spoke with an employee, Clemens, about the benefits of union representation In contrast, no witnesses testified that Paquin solicited employees to sign cards, or passed out cards or prounion literature Paquin herself credibly denied ever having done so And, of course, I have found that she did not pass out union buttons or literature Employees Leeper and Clemens, both of whom were supervised by Paquin, testified that they never spoke to Paquin about the Union Likewise, housekeeper Shirley Wallace, also su- pervised by Paquin, testified that Paquin never told her whether she favored or opposed the Union And Debra Williams, another of Paquin's employees, testified that, although Paquin did attend union meetings, she neither conducted nor participated in them Finally, as previous- ly noted, both Williams and Wallace testified that they had never observed Paquin even wearing a union button The record does indicate, however, that although not a leader, Paquin did attend union meetings Based on the testimony of Paquin and employees Debra Williams and Shirley Wallace, I find that Paquin attended a number of meetings, including one informal gathering at her house " Documentary evidence submitted at the representation hearing indi cates that Paquin actually wrote three reprimands during that period However, the text of the reprimands themselves does not indicate wheth er any subsequent measures were taken by management on December 17, 1980, the day she was fired, and one other meeting, also at her house, several weeks thereaf- ter, which may have occurred after the election There is some confusion, however, in the testimony of all three witnesses which makes specific findings rather difficult, particularly on the issue of how many meetings were held before the election and what was said or done at any particular meeting Wallace testified about five meetings, two at Paquin's house, and three at the union hall, all of which were at- tended by Paquin However, she was able to give some detail as to time and subject matter about only three one in late November at Paquin's house, a second in mid-De- cember, after Paquin's discharge, at the union hall, and a third at Paquin's house some 3 weeks after Paquin's dis- charge which could have taken place after the elec- tion 16 She admitted she was not certain of the dates of the meetings Wallace was also not sure who invited her to the meetings At first she testified that Paquin notified her of the November meeting at her house and that this was the only meeting about which Paquin notified her However, on cross-examination, she testified that Tom Rospopo, the front desk clerk, and not Paquin, notified her of this meeting, but that Paquin notified her of the second meeting at her home This is the meeting which could have taken place after the election Williams testified that there were two or three meet- ings before the election, but she could only pinpoint two Both were held at Paquin's house, one in late November and one the night of Paquin's discharge, which Wallace apparently did not attend Williams testified that she at- tended five meetings in all at which Paquin was present including three at the union hall However, except for the two at Paquin's house, she could not recall whether they were before or after the election 17 She testified that she was notified of the meetings at Paquin's house by Tom Rospopo, not Paquin There is a serious contradiction between Williams and Wallace as to what happened at the late November meet- ing, although both agree it was held at Paquin's house 18 Williams testified that union authorization cards were signed at this first meeting which was attended by about seven employees, some of whom were supervised by Paquin But she could not recall if a union business agent was present Williams further testified that both she and Wallace as well as other employees signed cards at this meeting Wallace, on the other hand, testified that she was present during the entire meeting and no cards were signed She testified that she did not sign her card until a second meeting which was held at the union hall in mid- December after Paquin's discharge Wallace testified that she did not recall seeing anyone else signing cards at this meeting Williams did not testify in detail about any meetings at the union hall and was unable to specify 16 In her testimony Williams placed this meeting as occurring 3 weeks after Paquin s discharge As previously noted Paquin was fired on De cember 17, 1980 The election was held on January 9, 1981 17 Actually Williams testified that of the remaining three she thought that two were held after the election and characterized the other as taking place in January 18 It is clear that both Williams and Wallace were talking about the same meeting because they each testified that the other was present HOWARD JOHNSON MOTOR LODGE 307 whether any of the meetings she attended at the union hall occurred before the election. Paquin testified that she attended a union meeting in late November or early December at the union hall at which time she and other employees signed union cards. She testified that the meeting was attended by approxi- mately 10 Howard Johnson employees, less than half of whom were people she supervised. She received her card from a union business agent named Wornock and signed it in the presence of subordinates. She also testi- fied about another meeting held at her home after she was fired. Tom Rospopo, the night auditor, who had originally approached the Union, asked her if the em- ployees could have a union meeting at her home. She agreed and this meeting took place. It is clear from Pa- quin's testimony that this meeting took place well after she was discharged. This apparently was the meeting which Wallace testified occurred some 3 weeks after Paquin was fired, since Paquin—like Wallace—testified it occurred at her home and was unsure whether it took place after the election or before. Paquin also testified about another meeting—actually an informal gathering— which took place at her home the night of her discharge. According to Paquin, some employees heard that she had been fired "and they came over," spontaneously. Al- though there was some confusion in the testimony of Paquin, primarily because she refused to characterize the gathering the night of her discharge as a meeting, it is clear that she was talking about two different incidents and it is also clear from her testimony that at the January meeting a union representative was present but that none was present at the December 17 gathering. Paquin denied that she notified Wallace or any of the employees of any union meetings at her house or else- where. And she denied that any union cards were signed at her house or that any prounion buttons, insignia, or literature were passed out at her house. Her testimony was that the first meeting or gathering at her house was on the day of her discharge and that the second was sometime thereafter, possibly after the election. Paquin was the only one of these three witnesses to have testified in the earlier unfair labor practice hearing. At that hearing, Paquin testified that she attended two union meetings in November 1980, including one on No- vember 9 when she signed a union card Both of these meetings took place at the union hall. In this proceeding she testified to only one meeting in late November or early December at the union hall during which she and other employees signed cards It appears, however, from considering all of Paquin's testimony, that she attended four or five union meetings. Thus, according to her testi- mony at this and the prior hearing, she attended the fol- lowing meetings. Two meetings at the union hall in No- vember 1980; an informal gathering at her house the night she was discharged; thereafter one meeting at her house and one meeting at the union hall, neither of which she is sure took place before the election. There is also some dispute and confusion concerning Paquin's conduct at the meetings in question. In regard to the late November meeting purportedly held at Pa- quin's house, Williams first testified that Paquin "may have" spoken, but that she did not "remember whether she said anything." Later, when asked whether Paquin said "anything at all" about the Union or people signing cards, Williams testified, "I don't think she said anything about the cards. Just that if anybody found out that the meeting was being held at her house that she'd lose her job." Pressed further about whether Paquin had "any- thing whatsoever to say" at that meeting, Williams re- sponded, "Well, she talked, but I don't remember what it was that she had said." Williams was then expressly asked if Paquin stated "any opinion on what she felt about the union—or how she felt about the union." Wil- liams testified as follows: A. Not that I can remember, no. Q. You don't recall whether or not she was in favor of the union? A. I believe so. Q. And what led you to that belief? A. I just have the impression that she thought the union was a good thing. Q. You don't remember whether or not she ever told you that? A. No.19 Williams also testified about the meeting at Paquin's house the night of her discharge. According to Williams, a union business agent was present as were approximate- ly five employees. Williams testified that the only thing that Paquin said was "that she was fired and the union was supposed to help her." The union agent said "basi- cally, the same thing." Williams could not remember if there was any discussion about the Union filing a charge on Paquin's behalf. Williams then testified about Paquin's activity at the three meetings that both attended at the union hall. Ini- tially, after being asked by counsel if Paquin "participate[d] in or conduct[ed] any of those meetings." Williams responded, "not to my knowledge." Subse- quently, after a series of leading questions, Williams stated: THE WITNESS: Okay, she talked about the benefits for the employees, the better work pays [sic], the working conditions that we were under, you know, they'd be taken care of, I guess, is what you want to say. Williams also noted that "[t]hat's basically what was said by Sandy or anyone." However, Williams later testified that she could not remember ever having heard Paquin state an opinion about the Union or tell any employee how to vote. Finally, as previously noted, Williams was unable to place any of these meetings as occurring prior to the election. " Williams also testified that Tom Rospopo, who invited her to this meeting, told her in a telephone call, that if she did not sign a union card she could lose her job She was asked whether that statement was repeat- ed by anyone at the meeting She said "It could have been" or "it may have" because she said she heard the statement many times When asked if Paquin made such a statement, Williams said "she could have" It is obvious that Williams was unable to testify with any kind of precision on this matter I do not find Williams' testimony in this respect to be reliable and I reject it as a basis for any findings of fact 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In testifying about the late November meeting she be- lieved took place at Paquin's house, Wallace stated that Paquin "talked but I didn't—you know—listened [sic] too much, but I just more or less listened to the other ones talking." Thus, she could not recall what Paquin said Wallace also testified about the mid-December meeting which was held at the union hall, after Paquin's dis- charge. Wallace admitted that Paquin did not give her a union card at this meeting or urge her to sign one. How- ever, she did testify that Paquin told her that she was not getting paid enough for her work and that the Union would be better for Wallace and all the employees. Sub- sequently, however, Wallace testified that Paquin never told her—"not even at the meetings at her house"— whether Paquin favored or opposed the Union. Wallace also testified that Paquin stated that she was fired for not revealing the names of employees that had attended union meetings. Finally, in testifying about the remaining three meet- ings that Paquin purportedly attended, one of which was at Paquin's house, Wallace stated that the only thing that Paquin discussed was "the union was going to help her get [her job] back" Wallace thus definitively placed these meetings as occurring after Paquin's discharge. In regard to her conduct at the formal union meetings, including the one at her house in January 1981, Paquin denied any active participation, other than mere attend- ance, except for her signing a card in November 1980, and likewise denied discussing the Union with any of the employees. Paquin did admit that at the gathering at her home on December 17, she told the employees that she was fired "[B]ecause I would not tell [Respondent] who attended the union meeting I attended" and that she "thought I should [or would] get her job back because I didn't do anything to lose it." Paquin also testified that she told the employees at that gathering that she had gone to the union hall and spoken with a union official and that the Union was "going to file charges at the NLRB" on her behalf This testimony was corroborated by Williams, who was in attendance at the December 17 gathering. According to Williams, the only thing that Paquin said at that meeting was "that she was fired and the union was supposed to help her" However, Williams could not recall whether Paquin had mentioned filing of a charge. Although not in attendance at the December 17 meeting, Wallace ascribed a similar statement to Paquin. She could only place it as occurring at the "other meetings" Paquin attended. According to Wal- lace, Paquin talked "about the union was going to help her get her job back." Leeper also testified that Paquin told her that "she was coming back to work there," but placed this conversation as occurring after the election. In view of the contradiction between Williams and Wallace on crucial matters about the late November meeting, I cannot accept as reliable their testimony that it was held at Paquin's house Nor can I accept their tes- timony about what Paquin said, if anything, at these or other meetings about Paquin's favoring the Union First of all, it is clear from the testimony of both employees that Paquin did not distribute union buttons or literature and did not distribute union cards or urge employees to sign cards or to vote for the Union at any of these meet- ings. Second, much of their testimony was unreliable even apart from the contradictory version of the Novem- ber meeting. Wallace vascillated on whether Paquin had notified her of or invited her to one meeting and actually contradicted herself on the issue. Both employees had trouble remembering specifics concerning what, if any- thing, Paquin said at these meetings and actually contra- dicted themselves. Both had trouble remembering dates, which in this case is significant because some of the meetings about which they testified could have occurred after the election. Finally, I found Williams to be a par- ticularly unreliable witness. She peppered much of her testimony with speculative language, responded pliantly to leading questions and appeared prone to exaggeration. Paquin, like the other witnesses, was somewhat con- fused about how many union meetings she attended. However, Paquin was firm in testifying about the meet- ings at her house and when they were held. 2° Thus, in this respect, I credit her testimony over that of Williams and Wallace concerning the site of the late November meeting. In addition, Paquin testified quite clearly and firmly about what she did or did not say at these and other meetings she attended. She said basically that she said nothing and was merely listening because she thought that her job was in jeopardy. Her denials that she distributed cards or buttons or urged employees to vote for the Union were corroborated by other employ- ees, except in the case of Leeper whose testimony was clearly unreliable. Her testimony that she did not speak out at union meetings before the election except on De- cember 17 when she complained about her discharge was, although disputed, not contradicted with sufficient detail to warrant rejection of her testimony Even if I found that she said something at these meetings which favored the Union, the testimony of Williams and Wal- lace does not provide a reliable basis to make findings as to what was said, when it was said, and in what context it was said.21 Analysis and Conclusions Based on the foregoing, I cannot find that Paquin's rather limited participation in the union or her limited authority as a supervisor combined in such a way as to coerce employees to vote in favor of the Union. To repeat, Paquin's only prounion activity was her at- tendance at four or five union meetings and her signing a union card. There is no credible evidence that she spoke in favor of union representation at these meetings— or at any other time—except insofar as she protested her un- lawful discharge and suggested that she was trying to get her job back through the legal process. And, as the Board stated in the earlier unfair labor practice case, a 2° Her testimony about the meetings at her home is consistent with her testimony in the earlier proceeding 2 I In this regard, I note that neither Wallace nor Williams regarded Paquin's alleged statements as particularly significant In testifying about Paquin's speaking at the early November meeting, Wallace stated "She talked but I didn't . listened [sic] too much, but I Just more or less listened to the other ones talking" And Williams, in describing state- ments allegedly made by Paquin, testified "That's basically what was said by Sandy or anyone" HOWARD JOHNSON MOTOR LODGE 309 supervisor has a right to attend such meetings and to sign a union card so long as he or she does not engage in surveillance. (261 NLRB at 870) Moreover, even accept- ing the testimony of Williams and Wallace that Paquin did make some prounion remarks at these meetings, they were the types of remarks, as Williams herself admitted, that one would expect of any prounion employee. Paquin at the time believed she was a unit employee entitled to vote in the election. The Union also believed as much and the Board permitted her to vote a challenged ballot There was thus nothing inherent in Paquin's prounion position which would lead employees to fear that Paquin was so committed to the Union that she would use her supervisory authority to retaliate against them for not voting for the Union Nor was there any direct evidence from employee wit- nesses that they feared supervisory retaliation from Paquin as a result of whatever prounion feelings she ex- hibited. Aside from Paquin, four employee witnesses tes- tified. One, Clemens, never had any conversations with her, and another, Leeper, apart from her discredited tes- timony, talked to her only about Paquin's discharge and Paquin's trying to get her job back Leeper herself testi- fied that this conversation took place after the election. The other two witnesses, Williams and Wallace, testified that Paquin did make some prounion statements at union meetings but that testimony was not clear or placed in context. Moreover, by their own admission, neither Wil- liams nor Wallace considered these remarks to be of any significance. None of this testimony contained any state- ment by Paquin that could possibly be viewed as threat- ening supervisory retaliation. Neither Williams nor Wal- lace testified that they feared such retaliation or that their votes were influenced by Paquin's views. They spe- cifically denied that Paquin solicited them or urged them to vote for the Union In these circumstances, I find that the Respondent has failed to show that the election is re- quired to be set aside because of Paquin's prounion posi- tion Some of the meetings Paquin attended—including the two at her home—occurred after her discharge, which took place some 3 weeks before the election. Even though she continued to have contact with the employ- ees thereafter and voted a challenged ballot in the elec- tion, she was at that point a discharged supervisor. Ordi- narily, the Board views the discharge of a supervisor prior to the election as defeating, or at least diminishing, the notion that that supervisor's prounion conduct could have coerced employees to vote in favor of a union, par- ticularly when it is well known that the employer itself opposes the union. See Stevenson Equipment Co., 174 NLRB 865, 866 (1969). Before the court of appeals, Respondent argued that Paquin's discharge did not "serve to lessen the coercive effect of her pro-union conduct" and that the Board's conclusion that there was only a "remote possibility" that employees feared Paquin's reinstatement could not be made without an evidentiary hearing. The court ap- parently agreed, citing an allegation that Paquin had told employees that she was "going to get her job back with full back pay." The court suggested that "[in light of this statement, employees could have reasonably believed that they would be subject to supervisor Paquin's dis- pleasure if the Union failed to win the election." 705 F.2d at 935 At the evidentiary hearing, the only evidence submit- ted by Respondent in support of this point was testimony from three witnesses and Paquin herself to the effect that Paquin informed them that she believed her discharge was unlawful and that she was going to try to get her job back with the help of the Union by filing charges with the National Labor Relations Board. Those charges were in fact filed, a complaint issued, and the discharge was found to be unlawful. Paquin was ordered reinstated with full backpay. Therefter the Respondent agreed to reimburse Paquin for lost wages in connection with the discharge and Paquin apparently waived her right to be reinstated to her former job. The employees clearly knew that Paquin was fired and they also knew the reason for her discharge, because she told them. That reason was that she refused to provide Respondent with the names of employees who had at- tended union meetings. The Board—and the First Cir- cuit—found that this amounted to a request that Paquin engage in an unfair labor practice which she had a right, even as a supervisor, to refuse to do. The employees also knew that Paquin was trying to use legal means to get her job back. Her statements to employees were in effect her opinion and her belief—which turned out to be true—that Respondent could not legally do what it did to her. Moreover, the Respondent resisted the charges in Board and court proceedings, a fact which the employ- ees also most likely knew. There was no evidence in this proceeding that employ- ees were authoritatively told or seriously believed that Paquin would be reinstated. That matter was in litigation and Respondent was resisting reinstatement. Nor was there any evidence that employees believed that if the re- instatement occurred they "would be subject to Paquin's displeasure if the Union failed to win the election." Indeed, I have found Paquin's limited prounion conduct to be of a noncoercive nature In the absence of any such evidence, it seems to me that the general rule—that the discharge of a supervisor prior to the election renders it less likely that a supervisor's prounion conduct has influ- enced its results—obtains here and solidifies the finding, which I make, that Paquin's prounion activity had no measurable impact on the election results. In support of its position that Paquin's limited union activity warrants setting aside the election, Respondent cites and relies on Flint Motor Inn Co., 194 NLRB 733 (1971). That case is clearly distinguishable on its facts. First of all, the election in that case was close, 28-27; here the union won by a 15-3 margin. Second, the super- visor involved in Flint was found to have a "major" su- pervisory role over a large number of the employees in the unit with the authority to fire, hire, train, discipline, schedule work, including overtime, and reprimand em- ployees. He also had the authority to pledge the credit of the motel, purchase supplies, and operate the area over which he was responsible "as he deemed appropriate." Paquin, on the other hand, spent 80 percent of her time doing cleaning and laundry work—and supervised, at 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD most, only 8 of the 18 unit employees Her supervisory responsibilities were limited and she had no supervisory responsibilities at times when the lodge manager was not also present at the motel Most importantly, however, a full hearing on the issue uncovered no evidence that Paquin actually used her limited supervisory opportuni- ties to coerce the employees under her supervision Third, Paquin's prounion activities were limited to sign- ing a card and attending meetings Her prounion re- marks, if any, were no different than those of any other employee who might have expressed a personal prefer- ence for unionization, and were primarily keyed to com- plaining about her unlawful discharge at the hands of Respondent for refusing to engage in unfair labor prac- tices She did not distribute union cards, literature, or union buttons, and it is clear that two other employees, Mark and Rospopo, originally contacted the Union, set up meetings, distributed buttons, and solicited employees to sign cards The supervisor in Flint, on the other hand, solicited employee signatures "on approximately 20 to 25 authorization cards," a figure which represented approxi- mately 40 percent of the votes cast in the subsequent election (id at 734 fn 2), "actively and outspokenly ad- vocated union representation," was the union's "contact man" during the campaign and threatened employees with reprisals if employees did not vote for the union Fourth, Paquin was discharged 3 weeks before the elec- tion in circumstances which indicated that she was fired for refusing to commit unfair labor practices Thus, the employees knew that Respondent had a different view of unions than did Paquin and that Respondent was able to do something about its views, as it also did when it un- lawfully prohibited the wearing of union buttons at the motel Nor was there any evidence that employees be- lieved that Paquin would regain her job, and would thereafter take revenge on nonunion personnel without again incurring the wrath of Respondent In Flint, on the other hand, even though the employer had made its an- tiunion stance known, the supervisor was not discharged, and continued to use his supervisory time and authority to promote the union until the very day of the election, without any interference from the employer Thus, the Board held, the employees could have reasonably be- lieved that after the election the supervisor would con- tinue to operate without restraint and therefore would be free to mete out punishment should the union not pre- vail Delchamps, Inc , 210 NLRB 179 (1974), also relied on by Respondent, is likewise distinguishable from the in- stant case Delchamps involved a unit of 85 employees which included 18 supervisors These supervisors, which comprise more than 20 percent of the unit, unlike Paquin, played a major role in determining the employ- ment status and the working conditions of their subordi- nates They hired and fired employees, scheduled hours, granted time off, assigned employees to particular tasks, selected employees for overtime and directed, trained, and evaluated the employees They also reprimanded and disciplined their employees and were responsible for rec- ommending them for wage increases, transfers, and pro- motions Moreover, also unlike Paquin, several supervi- sors in Delchamps played an active, overt role in promot- ing the union during the pre-election campaign They so- licited their subordinates to join the Union "Four or five" were members of the union's organizing committee, they distributed cards, solicited signatures and collected the signed cards, they attended union meetings and urged their subordinates to attend, and they wore union pins and urged their employees to vote for the union Pa- quin's activities were clearly less significant An analysis of Stevenson Equipment Co, 174 NLRB 865 (1969) demonstrates that Paquin's limited union ac- tivities are not of the type which justifies overturning an election That case involved a unit of 24 employees and 3 supervisors, including General Superintendent Johnson and day-shift foreman Espinosa Johnson played an active role in the union campaign He originally set up two gripe meetings for the employees After polling the employees regarding their desire for union representa- tion, Johnson made arrangements for union officials to address a meeting of the employees At the commence- ment of this meeting, Johnson introduced the union offi- cials to the employees Johnson, as did the other supervi- sors, and "most of the employees" signed cards at this meeting Within 2 weeks, Johnson was fired He ap- peared at a subsequent union meeting, 11 days later, "and announced that he had been terminated because of his activities on behalf of the Union There was a discussion of the possibility that the Union would be able to win Johnson's reinstatement as plant superintendent" The other supervisors were present at this meeting The elec- tion was held some 3 weeks later The Board dismissed the possibility that Johnson's conduct, which was decid- edly more active than that of Paquin, had any effect on the voters' choice in the union election In view of the antiunion circumstances surrounding the discharge, which were made known to the employees by Johnson himself, the Board held that "it does not seem likely that the employees would have regarded [Johnson's reinstate- ment] as more than a remote possibility " Thus, the em- ployees would have no reason to fear any subsequent re- taliation by Johnson as their supervisor (174 NLRB 866) Espinosa, who, unlike Paquin, remained employed with his employer until the election, like Paquin, con- fined his union activity to attendance at meetings and the signing of a card in the presence of subordinates In find- ing that Espinosa's conduct did not warrant overturning the election, the Board noted But while Espinosa had demonstrated an interest in having a union at the plant, it had hardly been so marked or inordinate as to lead the employees to fear possible retribution at Espinosa's hands in the event that they rejected the Union There is certain- ly no evidence that Espinosa ever indicated that there was a sound basis for such a fear Ibid The Board also noted that in view of the antiunion stance of the employer, the employees "would have sup- posed that they would be able to report to [the em- ployer] any unfairness by Espinosa should he choose to maltreat them because of a rejection of the Union" HOWARD JOHNSON MOTOR LODGE 311 In summary, after a full hearing, Respondent has been unable to present any evidence similar to that utilized by the Board in Flint and Delchamps to conclude that super- visory conduct on behalf of a union warranted setting an election aside Indeed, the Stevenson case clearly demon- strates that Paquin's conduct falls within the parameters of permissible supervisory activity I therefore conclude that, considering the totality of the circumstances in this case, the Respondent has not demonstrated that the elec- tion results were influenced by supervisory coercion on behalf of the Union " If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 ORDER The election of January 9, 1981, was fair and free from coercion on the part of Sandra Paquin The Board's cer- tification of February 20, 1981, and its subsequent bar- gaining order of September 30, 1981, were proper and should be reaffirmed Board and all objections to them shall be deemed waived for all pur poses