Golden Fan Inn

National Labor Relations Board - Board Decisions

Aug 29, 1986

281 N.L.R.B. 226 (N.L.R.B. 1986)

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bo-Ed Inc. d/b/a Golden Fan Inn and Service Em-
ployees International Union , Local 254, AFL-
CIO. Cases 1-CA-20805 and 1-RC-17813
29 August 1986
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 14 May 1984 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
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,' and
conclusions only to the extent consistent with this
Decision and Order.
1. The judge found that the Respondent violated
Section 8(a)(1) of the Act by interrogating employ-
ee Carlene Griffin about her union activities. We
cannot agree.
The Respondent operates a restaurant and a
motel. Several days prior to the election, three hos-
tess employees, including Griffin, were talking to-
gether on company premises during working hours
about a union flyer they had received in the mail.
The Respondent's general manager, Eric Baade,
approached them and asked Griffin if she had re-
ceived anything in the mail. Griffin first replied
"no," then "yes." Baade then followed up with,
"Weren't you going to tell me about it?" to which
Griffin again answered first "yes" and then "no."
Baade further questioned with: "Are you one of
the girls?" and Griffin said, "Yes." Baade was
called away and upon his return Griffin told him
that she had gotten "a paper" in the mail which he
could have, but he declined with, "No, I have a
copy."
Notwithstanding the ambiguous nature of
Baade's questions2 and the fact Baade and Griffin
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 It is not clear whether Baade was asking Griffin if she received a
mailing from the Respondent or from the Union Both the Respondent
and the Union sent mailings to employees during the preelection period
were friends, the judge found the questioning was
coercive. The judge inferred the questions were
asked to test Griffin's loyalty. The judge also noted
that no assurances were given to Griffin that no
action would be taken based on her answers.
We agree with neither the judge's inference nor
her conclusion. The judge's inference is speculative
and merely one of several reasonable possibilities.
Baade could conceivably have been alluding to the
Respondent's own mailing to employees, thereby
attempting to establish that it had been timely re-
ceived by employees. The "one of the girls" ques-
tion is at most ambiguous.
In Rossmore House,3 the Board returned to the
standard set forth in Blue Flash Express4 for evalu-
ating whether interrogations violate the Act:
whether under all the circumstances the interroga-
tion reasonably tends to restrain, coerce, or inter-
fere with employees' rights guaranteed by the Act.
Further, in Sunnyvale Medical Clinic, 5 the Board
emphasized that it disapproved a per se approach
to allegedly unlawful interrogations. Rather, the
Board will make a case-by-case analysis which
takes into account the circumstances surrounding
an alleged interrogation and does not ignore the re-
ality of the work place.
Here, Baade and Griffin were friends who en-
gaged in a casual and amicable conversation in the
employees' work area. Baade merely asked Griffin
about a mailing . He reasonably could have been re-
ferring to either the Respondent's mailing or the
Union's mailing . Baade's followup inquiry about
whether Griffin was "one of the girls" was even
more ambiguous. In light of all the factors present,
we find that Baade's questions were lawful and
noncoercive. Accordingly, we shall dismiss this al-
legation of the complaint.
2. The judge also found that the Respondent's
statements to employees, through its counsel Her-
bert H. Bennett, regarding bargaining, strikes, and
strike replacements did not violate the Act. The
judge reasoned that the Respondent did not suggest
it would refuse to bargain in good faith, did not
state strikes would be inevitable, and did not imply
that employees who struck would be unlawfully re-
placed.6
However, the judge found that the Respondent's
remarks about other unionized restaurants in the
State violated Section 8(a)(1) of the Act. The judge
reasoned that the comments suggested to employ-
ees that the election of a union to represent them
3 269 NLRB 1176 (1984), affd. 760 F 2d 1006 (9th Cir 1985)
4 109 NLRB 591 (1954)
3 277 NLRB 1217 (1985)
6 In the absence of exceptions, Member Johansen adopts pro forma the
judge's findings regarding Bennett's statement about striker replacements
281 NLRB No. 35
GOLDEN FAN INN
would have an adverse impact on Golden Fan's
business.
On the day prior to the election, the Respond-
ent's president, Robert Rosenthall , held two meet-
ings of unit employees encompassing both the day
and night shifts. As noted, a speaker in this meeting
was Bennett , who indicated , inter alia, to the em-
ployees that the Round House, a unionized restau-
rant in Maine, was not doing well and that two
other unionized restaurants had closed . Bennett
stated both that he did not know whether the three
unionized restaurants ' business problems had any
relation to the union and that the situation at the
Round House spoke for itself.
We cannot agree with the judge that the Re-
spondent's comments regarding other restaurants
violated Section 8(a)(1). Rather, we agree with the
Respondent that Bennett 's comments were lawful
statements of fact that did not constitute a threat
that the Respondent would close or suffer adverse
consequence on unionization.
An employer's right to communicate its views to
employees is clearly recognized by Section 8(c) of
the Act. Recently, in Clark Equipment Co.,7 the
Board , in reviewing employer statements regarding
unionization, emphasized that an employer is per-
mitted by Section 8(c) to present its views of the
economic realities of unionization.
Here, Bennett informed the employees about the
situation at three other unionized restaurants in
Maine . However, he expressly stated that he did
not know whether the problems with these restau-
rants were related to unionization . He did not refer
to what effect, if any , unionization would have on
the Respondent's restaurant . In fact, in regard to
the Respondent , Bennett 's remarks to employees
were to the effect that he would try to negotiate a
3-year contract if the Union won the election.
Under these circumstances, we find that Ben-
nett's statements were lawful remarks protected by
Section 8(c). We decline to infer that Bennett's
comments contained any unlawful threats . This is
especially appropriate given that the General
Counsel has not challenged the accuracy and truth-
fulness of the statements about the three unionized
restaurants . Further, as found by the judge, these
remarks by Bennett occurred in a speech that was
otherwise lawful . We shall dismiss this allegation of
the complaint.8
7 278 NLRB 498 ( 1986). See also ARA Services, 271 NLRB 418 (1984);
B.F. Goodrich Footwear Co., 201 NLRB 353 (1973).
8 The cases relied on by the judge are inapposite . As correctly stated
by the judge, in American Freightways Co., 124 NLRB 146 (1959), He-
dison Mfg. Co., 260 NLRB 1037 (1982), and Photo Drive Up, 267 NLRB
329 (1983), the test set forth for determining whether an employer en-
gaged in conduct in violation of Sec . 8(aXl) is whether the conduct rea-
sonably tends to interfere with the free exercise of employee rights under
the Act. However, none of the cases cited supports a finding that re-
227
3. The judge found that the Respondent violated
Section 8(a)(1) by engaging in conduct designed to
dilute the Union's support.
Specifically, the judge concluded that the Re-
spondent added individuals who were ineligible to
vote in a Board-conducted election to the voter eli-
gibility list in order to undermine the Union's sup-
port among bona fide bargaining unit employees.
For reasons set forth , we cannot agree with the
judge 's findings.
The petition in the representation proceeding
was filed by the Union on 12 January 1983.9 A
hearing was held on 27 January and the Regional
Director's Decision and Direction of Election
issued 3 February , wherein inter alia the submission
of an Excelsior10 list was directed . " The submitted
list contained 110 names with employees separated
into categories. 112 By letters dated 23 February, the
Respondent corrected an "administrative error" by
adding the names of Paul Pendergast and Rein
White to the list, now totaling 112.
At the representation hearing parties stipulated
and the Regional Director found the following to
be supervisors : Robert Rosenthal , owner; Andrew
Rosenthal, vice president and assistant manager;
Eric Baade, general manager ; Patricia Mayo, head
housekeeper; (Angel) Hio Tung Moa, head chef;
Pat Mathieu, night head hostess ; Brenda Lepori,
day head hostess (totaling 7).13
The complaint in the consolidated cases before
the judge alleged that the following 24 ineligible
voters were hired or placed by the Respondent on
the Excelsior list for the purpose of voting against
the Union:14
Paul Baade Franklin Durette
Mark Baillargeon David Fernald
Norma Blaisdell Deborah Fernald
Nelson Brown Baade*
marks such as Bennett 's violated Sec. 8(aXl). None of the cases cited in-
volves employer statements regarding unionization . An employer 's truth-
ful statements about unionization and other employers ' operations, with-
out more, would not have a reasonable tendency to coerce employees.
9 All dates are 1983 unless otherwise specified.
10 Excelsior Underwear, 156 NLRB 1236 (1966).
11 Eligible voters were those unit employees employed during the pay.
roll period immediately preceding 3 February, the decision date. The Re.
spondent's Excelsior list was submitted for the 27 January payroll period.
This list erroneously indicated 1982 instead of 1983.
12 The categories included - Front desk and clerical employees, 9 em-
ployees; housekeeping staff, maids, assistant housekeeper, laundry work-
ers, 26; cocktail lounge/dining room staff, 47; kitchen help, 15 ; and main-
tenance employees, 13. Prior to the election the Respondent removed 9
employees from the list; the employees thereby totaled 103. The Re-
spondent's original inclusion of five of these deleted names was still al-
leged as an 8(aXl) violation.
13 None of these supervisors were included on the Excelsior list.
14 Asterisks indicate names removed by the Respondent from the list
prior to the election but still retained in the complaint as part of the
8(aXl) allegation.
228
Daniel Caron
Donald Hill*
Man Fu Ho*
Kau Chun Moa
Magala Moa
Daniel St. Onge
Paul Pendergast
Arlyne Sacks*
Daniel St. Laurent
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Delbert Harding
Rolande St. Laurent"
Denis St. Laurent
Harvey St. Laurent
Robert St. Laurent
Ronald Weed
Rein White
Tin Kai Yu
At the 4 March election, the tally was 35 for,
and 43 against the Union, with 14 challenged bal-
lots, a sufficient number to affect the results. The
following 14 individuals cast the determinative
challenged ballots and were challenged as fol-
lows:15
Paul Baade As temporary employee
Mark Baillargeon
Daniel Caron
Kau Chun Moa
Magala Moa
Daniel St. Laurent
Denis St. Laurent
Robert St. Laurent
Paul Pendergast
Norma Blaisdell
Harvey St. Laurent
Rein White
Tin Kai Yu
Nelson Brown
„
„
„
It
„
„
As temporary
employee/posteligibility
hiring
As supervisor
As supervisor
As hired after eligibility
date
As hired after eligibility
date
As independent
contractor
The judge found that during the third week of
January, Respondent's General Manager, Eric
Baade, told Elain Faherty-Weldon, the employee in
charge of the payroll, that Robert and Andrew
Rosenthal, owner and vice president /assistant man-
ager, respectively, were attending a meeting in
Boston with their attorney, Bennett , for the pur-
pose of determining voter eligibility in the elec-
tion.16 According to Faherty-Weldon's testimony,
Baade further told her that the Respondent would
be redoing some rooms on the first floor of the
motel and that Maintenance Supervisor Harvey St.
Laurent would bring in a number of people to
work on Saturdays "to fix up the rooms and beef
up the payroll."
15 Of the 10 alleged as ineligible voters but who did not cast chal-
lenged ballots, 5 had been removed from the eligibility list by the Re-
spondent prior to the election
16 The judge inferred this meeting to be the representation heanng
The judge also found that in late February the
Respondent did indeed begin construction for an
addition of 48 new rooms to the motel. The ren-
ovation was performed by Pittsfield17 and super-
vised by A. Rosenthal. She further found that Re-
spondent had a legitimate business reason for hiring
a number of additional employees in January, i.e.,
the need to perform significant maintenance
work.18 Nonetheless, she concluded that the Re-
spondent placed the names of ineligible voters on
the Excelsior list for the purpose of diluting the
Union's support thereby violating Section 8(a)(1) of
the Act.
The judge reasoned that the Respondent's legiti-
mate reasons for hiring people must be weighed
against other evidence of unlawful purpose. Ulti-
mately, she concluded that the General Counsel es-
tablished that the Respondent violated Section
8(a)(1) by adding the names of ineligible voters to
the Excelsior list in order that the Union's support
be diluted. We cannot agree.
To find that the Respondent acted unlawfully,
the judge primarily relied on Baade's comment to
Faherty-Weldon that the Respondent was acting
"to fix up the rooms and beef up the payroll."
The judge viewed the remark, made in a conver-
sation regarding needed maintenance work and
who would be eligible to vote in the election, as
revealing the Respondent's intention to put individ-
uals on the payroll and the eligibility list so that
they could vote against the Union. We disagree
with the judge's interpretation of and reliance on
Baade's comment.
Baade's remark is at least as susceptible to, and
in our view more susceptible to, a finding that it
merely expressed the Respondent's legitimate inten-
tion to add employees to perform needed mainte-
nance. The context, referred to by the judge, was
as much about the needed maintenance work as
about the representation election . Baade's remark,
on its face, referred to "fixing up" the rooms. Cer-
tainly, if additional people were hired to do needed
repairs, the payroll would be increased.19
In these circumstances, Baade's comment was
ambiguous and clearly insufficient to support a
finding that the Respondent acted unlawfully to
dilute the Union's support. However, the judge
17 Pittsfield is a construction company owned by the Rosenthal family
It previously performed work for Golden Fan
18 In this regard, Robert Rosenthal's testimony , which was essentially
corroborated by Faherty-Weldon, was that significant maintenance work
was needed but the work had been delayed by the motel 's being occupied
by 180-200 Navy personnel
19 As the Respondent contends , the record suggests that the phrase
"beef up the payroll" may have been Faherty-Weldon's words rather
than those of Baade . Faherty-Weldon 's testimony suggests she was sum-
marizing Baade's statement to her rather than directly quoting him
GOLDEN FAN INN
relied on Baade's comment as the linchpin for her
finding of unit packing by the Respondent . Because
we find , contrary to the judge , no unlawful intent
was revealed by Baade's remark, it follows the
General Counsel 's case must fall.
Certainly, the judge analyzed factors other than
Baade 's remark in examining the complaint 's allega-
tions as to unit packing . However , these additional
factors are insufficient to sustain the complaint's al-
legations . As the judge correctly noted, the inclu-
sion on the Excelsior list of an individual who is
not eligible to vote cannot , without more, sustain a
violation . The true question , as the judge recog-
nized, is why the disputed individuals were added.
In this case , the General Counsel failed to estab-
lish who in the Respondent's hierarchy prepared its
Excelsior list. This is of some significance here. The
Respondent 's payroll system (which would logical-
ly serve as the basis for its Excelsior list) was infor-
mal and had been in a state of disarray well before
the Union 's organizing campaign . 20 For example,
individuals working for other entities owned by the
Rosenthal family would "routinely" end up being
listed on Golden Fan's payroll. Also, according to
Faherty-Weldon, she was "not infrequently" given
the names and relevant information about newly
hired employees on "pieces of scratch paper, such
as receipts from drycleaners." Further, about 30
percent of the employees on the payroll had not
filled out W-4 forms. Thus, it follows that an Ex-
celsior list prepared by a clerical employee who
relied on the Respondent's payroll system might
contain some inaccuracies.
With this fact as a backdrop, the General Coun-
sel's case is all the weaker. The names of two indi-
viduals (Blaisdell and Harvey St. Laurent ) found to
be supervisors were included on the Excelsior list.
However, their inclusion-particularly where, as
here, the status of the disputed supervisors is clear-
ly debatable-falls far short of showing an unlaw-
ful purpose. Other disputed individuals were listed
by the Respondent as additions to its maintenance
personnel. However, maintenance work was
needed and as to those maintenance employees
who cast challenged ballots, we find infra that
most of them were eligible voters. We can accord-
ingly draw no inference of unlawful purpose from
the Respondent's inclusion of these employees on
its Excelsior list. Finally, the circumstances sur-
rounding other disputed individuals-such as the
cooks or Rein White, a maid-are insufficient to
support the finding of a violation . Considering that
the cooks and White had previously worked for
the Respondent-viewed in light of the Respond-
20 The judge termed the Respondent 's procedure for its payroll and
personnel records to be "somewhat unusual."
229
ent's extremely disorganized payroll and personnel
records-no inference of unlawful purpose is war-
ranted.
As the judge noted, cases involving unit packing
frequently turn on circumstancial evidence.21
However, the evidence adduced here falls short of
proving the complaint's allegations . 22 Absent the
judge's unwarranted reliance on Baade 's remark,
we are left only with a somewhat inaccurate Excel-
sior list . However, given the longstanding chaotic
state of the Respondent's payroll and personnel
records, we cannot find on the record before us
that the preparation and submission of the Re-
spondent's Excelsior list was a product of an unlaw-
ful purpose . Accordingly, we shall dismiss this alle-
gation of the complaint.
4. The judge analyzed the status of the 24 indi-
viduals who the complaint alleged were placed on
the Excelsior list for unlawful reasons . We have
found, contrary to the judge, that the General
Counsel failed to establish any violations and thus
the complaint must be dismissed in its entirety.
Nonetheless, we must still resolve the 14 determi-
native challenges in order to determine the out-
come of the election conducted in Case 1-RC-
17813. 23 Of course , our analysis will be based
21 The judge noted that in Trend Construction Corp., 263 NLRB 295
(1982), the Board inferred an unlawful purpose from all the circum-
stances However, factors significantly more revealing and persuasive
than those herein were present in Trend. For example, the employer
brought in individuals from out of town , and assigned them nonurgent
work; it hired individuals not capable of doing the work , and there was
independent evidence of union animus.
22 The judge noted that the Board has indicated that a factor to be
considered in cases involving unit packing is whether any of the new
hires are connected to members of management . See, e .g., Airborne
Freight Corp., 263 NLRB 1376 (1982). Here, among the disputed individ-
uals were three sons and the wife of Harvey St. Laurent (found herein to
be a supervisor in maintenance ), the wife and sister of Hio Tung Moa
(stipulated to a supervisor in the restaurant 's kitchen), and the brother
and fiancee of Eric Baade (the Respondent's general manager and a stipu-
lated supervisor). However, the use by the Respondent of such relatives
is consistent with a practice that predated the organizing campaign. Thus,
the judge , despite her other findings , found Daniel St. Laurent had
worked for the Respondent since 1982 and was an eligible voter. Al-
though the judge found Robert St . Laurent was not an eligible voter, the
judge acnkowledged that Robert "may well" have worked full time at
properties owned by Rosenthal. Further, it is undisputed that both Kau
Chun Moa and Magala Moa had previously worked for Golden Fan.
Under these circumstances , we cannot infer that the relation of these in-
dividuals to certain supervisors demonstrates an unlawful purpose . Final-
ly, we note that none of the Union's challenges to voters was made on
the basis of the voter being a relative of management.
as In light of our findings , we need not consider further the status of
those 10 individuals who were alleged in the complaint to have been
added to the Excelsior list for unlawful reasons but who are not before us
as challenged voters.
Among the 14 challenged voters are Daniel St . Laurent and Tin Kai
Yu. The judge found Daniel was eligible to vote and overruled the chal-
lenge to Daniel 's vote. The judge found Yu was ineligible to vote and
sustained the challenge to Yu 's vote. In the absence of exceptions, we
adopt the judge's findings as to Daniel and Yu
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strictly on traditional representation principles24
and without regard to any allegation of unit pack-
ing.
Norma Blaisdell
The judge, generally crediting the testimony of
Supervisor Patricia Mayo, found that Blaisdell had
and exercised authority to recommend hiring, dis-
charge, and discipline. Accordingly, the judge con-
cluded that Blaisdell was a supervisor within the
meaning of the Act. We concur. Accordingly, the
challenge to Blaisdell's vote is sustained.
Harvey St. Laurent
The judge found Harvey St. Laurent to be a su-
pervisor within the meaning of the Act. The judge
relied on Mayo's credited testimony that Harvey
was the "head" of and "in charge of maintenance.
The judge also noted Harvey's high rate of pay
and that, absent Harvey's being a supervisor, 11
maintenance employees would be unsupervised
most of the time. The judge concluded that Harvey
at the least had authority to responsibly direct em-
ployees . We agree and shall sustain the challenge
to Harvey's ballot.
Nelson Brown
The judge found Brown ineligible. She relied on
Brown 's change of status from an independent con-
tractor performing work as a painter and wallpaper
hanger for the Respondent for a number of years
prior to 1983 to an employee on the payroll begin-
ning the week ending 15 January.
Inasmuch as Brown was hired to work in the
Respondent 's maintenance department and was
working during the payroll eligibility period, he
was an eligible voter . We overrule the challenge to
his ballot.
Daniel Caron
The judge found Caron to be ineligible. Howev-
er, the payroll records list his hourly rate as that of
a maintenance employee and show that he worked
9 hours in both the weeks ending 22 and 29 Janu-
ary. The judge noted that credited testimony sug-
gested that Caron worked at Golden Fan and also
other Rosenthal properties . The judge reasoned
Caron was ineligible because there was insufficient
evidence as to how much of his time was spent at
the motel , how he came to be hired, or his qualifi-
cations.
We disagree with the judge. Caron was hired as
a general maintenance employee and worked in
24 A party seeking to exclude an individual from voting has the burden
of establishing that the individual is, in fact, ineligible to vote
maintenance at Golden Fan during the eligibility
period. Caron's working at times at facilities other
than Golden Fan does not require a different result.
Accordingly, he was eligible to vote and we over-
rule the challenge to his ballot.
Denis and Robert St. Laurent
The judge found both Denis and Robert , sons of
Harvey St. Laurent , ineligible to vote . Essentially,
the judge decided they were ineligible because they
worked at Rosenthal properties other than Golden
Fan.
We disagree . As both employees were working
for the Respondent and doing general maintenance
work during the payroll eligibility period, they
were eligible . As with Caron , the fact that they
may have done some work for Rosenthal at other
than Golden Fan does not require a different result.
We overrule the challenges to their ballots.
Paul Baade
The judge found Baade ineligible based on the
timing of his hiring and his relationship to Eric
Baade, his brother, who had told Faherty-Weldon
about beefing up the payroll . The judge also noted
that Baade was classified as "waiter/waitress" but
performed "sub-level" maintenance work similar to
Mark Baillargeon , who was classified as a mainte-
nance employee . Baade earned a wage rate of $2.06
per hour and a "special rate" of $3.75 per hour
while Baillargeon earned $3.50 per hour.
As it is clear that Baade was working in mainte-
nance for the Respondent during the payroll eligi-
bility period , we find him to be an eligible employ-
ee. We overrule the challenge to his ballot.Mark
Baillargeon
The judge found Baillargeon to be ineligible as a
casual employee . The judge states that although
the record reveals that Baillargeon worked a mini-
mum of 6 hours per week between 22 January and
the election date, the record does not establish that
his status would be that of a regular part-time em-
ployee. Rather, the judge, reviewing the previous
year's summary of earnings for Baillargeon, fords
he was a casual employee in 1982 and that such
status "must be presumed to have continued" in
1983.
Contrary to the judge, we find that Baillargeon
worked sufficient hours at times material to be eli-
gible to vote in the election . We would not rely on
sparse records as to 1982-as does the judge-to
find that Baillargeon was a casual employee in 1982
and then "presume" that this status continued in
early 1983 (i.e., during the payroll eligibility
period). Thus, in view of Baillargeon 's working in
maintenance during the payroll eligibility period,
GOLDEN FAN INN
we find he was an eligible voter and we shall over-
rule the challenge to his ballot.
Kau Chun Moa and Magala Moa
The judge, crediting the testimony of Patricia
Mayo and Weldon Bennett , found that neither Moa
worked during the payroll elibility period. Accord-
ingly, the judge found that they were not eligible
to vote in the election . We agree and we shall sus-
tain the challenges to their ballots.
Rein White
The judge found that White was not an eligible
voter . The issue was whether White, who was
hired as a maid in September 1981 and worked
until 18 December 1982 , quit or left on maternity
leave . The judge found that she quit based on doc-
umentary evidence and credited testimony. We
agree with the judge . Accordingly, we find her in-
eligible to vote and sustain the challenge to her
ballot.
Paul Pendergast
The judge found Pendergast ineligible to vote
based on his hire the week ending 29 January for
the purpose of cutting meat at the Sunday buffet.
He had a full-time job as a food salesman and the
Respondent was one of his customers. As noted by
the judge, Pendergast , because of his business rela-
tionship with the Respondent, would have a need
to maintain a good relationship with the Respond-
ent.
We find under these circumstances that Pender-
gast did not share a community of interest with
other employees so as to render him eligible to
vote. We therefore sustain the challenge to his
ballot.
The Representation Proceeding
The tally of ballots for the 4 March election was
35 votes for and 43 against the Union, with 14
challenged ballots.
We have found that seven25 of the challenged
ballots should be sustained and seven26 of chal-
lenged ballots should be overruled . As the over-
ruled challenges are not determinative , we shall not
direct that these ballots be opened and counted.
The judge sustained two of the Union's objec-
tions to the election , and the Respondent has ex-
cepted. The two objections parallel two of the
complaint's allegations of violations of Section
8(a)(1): essentially the complained of conduct is
2r, Blaisdell , Harvey St. Laurent, C. Moa, M Moa, Pendergast, White,
and Yu.
26 Baade, Baillargeon , Brown, Caron, Daniel, Denis, and Robert St.
Laurent
231
Baade's questioning of Griffin and the Respond-
ent's allegedly adding ineligible individuals to the
Excelsior list.
As we have found the complaint's allegations to
be without merit, we shall also overrule the
Union's two objections27 and certify the results of
the election.28
ORDER
The complaint is dismissed.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Service Employees
International Union, Local 254, AFL-CIO, and
that it is not the exclusive representative of these
bargaining unit employees.
MEMBER STEPHENS , dissenting in part.
I agree with my colleagues' conclusion that the
Respondent did not unlawfully interrogate employ-
ee Griffin or threaten employees that unionization
would have an adverse impact in violation of Sec-
tion 8(a)(1). However, I would find that the Re-
spondent failed to rebut the General Counsel's
prima facie case that the Respondent unlawfully
packed the voting unit to defeat the Union, and
that therefore the election should be set aside.
The Union filed its representation petition on 12
January 1983. Approximately 1 week later the Re-
spondent's general manager, Eric Baade, had a
conversation with the Respondent's payroll clerk,
Elaine Faherty-Weldon, concerning the subject of
voter eligibility in the upcoming representation
election . Faherty-Weldon's uncontradicted testimo-
ny was that Baade told her that he and the Re-
spondent 's owner , vice president, and attorney
were going to a meeting in Boston for the purpose
of determining voter eligibility in the election. Fa-
herty-Weldon further testified that Baade stated
that in the meantime Maintenance Supervisor
Harvey St. Laurent was going to bring in a number
of people to fix up some of the Respondent's motel
rooms and "beef up the payroll."
27 As we have also found the complaint 's allegations regarding Attor-
ney Bennett 's statements to be without merit , Bennett's conduct may not
serve as a basis to set aside the election.
28 There is before us no objection based explicitly on an allegation that
the Excelsior list was sufficiently inaccurate (regardless of the preparer's
purpose) to warrant setting aside the election . See, e.g., Lobster House,
186 NLRB 148 (1970), and LeMaster Steel Erectors, 271 NLRB 1391
(1984). Here, as noted , certain corrections were made to the list prior to
the election and other disputed individuals have been found eligible to
vote . Further, to the extent the list was still somewhat inaccurate, its vice
was in having extra names-not in omitting the names of eligible voters.
Thus , the inaccuracy did not prevent the Union from communicating
with eligible voters.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The judge appropriately found that Baade's com-
ment indicated an intent to add people to the pay-
roll and thereby to the Excelsior list so that the Re-
spondent could dilute the Union's support. Al-
though the majority finds that the statement "beef
up the payroll" is so ambiguous as to not prove un-
lawful intent, I believe that the judge was entitled
to view the statement in the context in which it
was made and to draw what I believe was a rea-
sonable, if not the only, inference as to the Re-
spondent's intent . The statement came on the heels
of Baade's statement to Faherty-Weldon that mem-
bers of Respondent's management and its attorney
were going to meet to discuss "the Union, about
who would vote and who would not be eligible to
vote."1
Furthermore, in the 3 weeks following the date
the Union filed its representation petition 14 em-
ployees appeared for the first time on the Respond-
ent's payroll records.2 Half of these 14 employees
are relatives of members of the Respondent's man-
agement. 3
Moreover, an inference of unlawful unit packing
is warranted based on the Respondent's bad faith in
adding several individuals to the Excelsior list who
were obviously ineligible to vote. For example the
Respondent added Kau Chun Moa and Magala
Moa to the list; yet every credited witness who tes-
tified regarding these two women stated that they
had never seen either one working at the Respond-
ent's motel during the eligibility period. The Re-
spondent placed Deborah Fernald Baade on the
Excelsior list even though she quit after working
only one night. The Respondent added the name of
Rolande St. Laurent to the list despite the fact that,
as the Respondent's president Robert Rosenthal
conceded, she never worked at the motel.4 The
' I cannot accept the majority 's suggestion that the phrase "beef up the
payroll" represented Faherty-Weldon's words rather than those of Baade
on the theory that she may have been merely summarizing what he said
instead of directly quoting him . If this were so one can assume that
Baade would have denied making such a statement , but the Respondent
did not present him as a witness . Accordingly, I find it appropriate to
draw an adverse inference here See Martin Luther King Sr. Nursing
Center, 231 NLRB 15 fn 1 (1977)
2 These individuals are Paul Baade , Deborah Fernald Baade, Nelson
Brown, Daniel Caron, Franklin Durette, David Fernald, Delbert Har-
ding, Kau Chun Moa, Magala Moa, Paul Pendergast , Denis St Laurent,
Robert St. Laurent, Rolande St Laurent, and Ronald Weed
3 Paul Baade is the younger brother of General Manager Eric Baade,
Deborah Fernald Baade is the wife of Eric Baade, Kau Chun Moa and
Magala Moa are the wife and sister, respectively, of Head Chef and Su-
pervisor Hot Tang Moa, Denis and Robert St Laurent are sons of Super-
visor Harvey St. Laurent, and Rolande St Laurent is Harvey St. Laur-
ent's wife. See Supermarket of Dunabar, 178 NLRB 206 (1969) (suspicion
arises where employer hires employees who have some connection with
members of management such as relatives and friends)
4 The Respondent later agreed to remove Rolande St Laurent from
the list of eligible voters
Respondent also added the name of Donald Hill to
the list; yet the Respondent was unable to offer any
evidence that he worked for the Respondent
during the eligibility period . Also, I agree with the
judge that it is suspicious that immediately before
the eligibility period the Respondent changed the
status of Nelson Brown from independent contrac-
tor to employee , and did so beginning in a week in
which he performed no work for the Respondent.
Although individually these facts do not prove un-
lawful unit packing, considered together along
with the Respondent 's admitted union animus they
do establish a prima facie case that the Respondent
expanded the size of the voting unit to insure the
Union's defeat.
The Respondent defends its hiring of a signifi-
cant number of new employees immediately prior
to the eligibility period by arguing that the hirings
were warranted by its need to renovate many of
the motel 's rooms-work that had been postponed
because the rooms were occupied . However, the
evidence shows that at least half of the new hires
did not perform any renovation work at the motel
prior to or during the eligibility period. Three of
the new hires worked as cooks, one served as a
bartender , one removed snow from the Respond-
ent's parking lots, one worked as a cleaner at one
of the Respondent 's other facilities, while another
worked as a painter and wallpaper hanger, appar-
ently also at one of the Respondent's other facili-
ties . Furthermore , the Respondent offered no evi-
dence to show that business growth or other spe-
cial factors justified increasing the nonmaintenance
staff positions.
I therefore find that the Respondent did not ade-
quately rebut the General Counsel 's prima facie
case of unlawful unit packing and that by this con-
duct the Respondent violated Section 8(a)(1). In
my view, this attempt at sabotaging the election
process is objectionable conduct that warrants set-
ting aside the election without regard to whether
exclusion of the improperly added voters would
necessarily have changed the election outcome. See
E.A. Nord Co., 276 NLRB 1418, 1425 fn. 8 (1985);
Central Delivery Service, 225 NLRB 758 (1976). I
would set aside the election.
Robert A . Pulcini, Esq., for the General Counsel.
Herbert H. Bennett and Peter R. Kraft (Herbert H. Bennett
and Associates, P.A.), of Portland , Maine, for the
Respondent/Employer.
E. W. Buffum , of Boston , Massachussetts , for the Charg-
ing Party/Petitioner.
GOLDEN FAN INN 233
DECISION
STATEMENT OF THE CASE
On the entire record in the case and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
MARY ELLEN R. BENARD, Administrative Law Judge.
The petition in Case 1-RC-17813 was filed January 12,
1983,1 by Service Employees International Union, Local
254, AFL-CIO (Union), for an election to determine
whether certain employees of Bo -Ed Inc . d/b/a Golden
Fan Inn (the Respondent), desired to be represented by
the Union . Pursuant to a Decision and Direction of Elec-
tion issued by the Regional Director for Region 1 of the
National Labor Relations Board February 3, an election
was conducted by the Board March 4 among employees
in an appropriate bargaining unit . 2 At the election cer-
tain ballots were challenged, and following the election
the Union filed timely objections to conduct affecting the
results of the election.
The charge in Case 1-CA-20805 was filed March 7,
and amended April 11. On April 28 the Regional Direc-
tor issued an order consolidating cases, complaint, and
notice of hearings consolidating the representation and
the unfair labor practice proceedings and alleging, in
substance,' that the Respondent had violated Section
8(a)(1) of the Act by: ( 1) hiring and/or including ineligi-
ble voters in the bargaining unit for the purpose of
voting against the Union; (2) interrogating employees re-
garding their activities on behalf of the Union ; (3) indi-
cating to employees that it would be futile to select the
Union as their bargaining representative because the Re-
spondent would not bargain in good faith, that a strike
would be inevitable, and that employees would be per-
manently replaced if they joined a strike; and (4 ) threat-
ening employees that it would close its facility if they se-
lected the Union to represent them . The Respondent has
denied the commission of any unfair labor practices.
The hearing in the consolidated cases was held before
me in Bath, Maine, on October 11, 12, and 13 . Following
the hearing the General Counsel and the Respondent
filed briefs, which have been considered. 5
I All dates herein are 1983 unless otherwise indicated.
a The unit found to be appropriate for purposes of collective bargain-
ing is composed of
All full-time and regular part-time employees including front desk
and clerical employees , housekeeping employees, laundry workers,
maintenance employees , hostesses , hostess/cashiers, waiters , waitress-
es, buspersons, cooks, dishwashers , bartenders and cocktail waiters
and waitresses employed by the Respondent at its Brunswick, Maine,
location , but excluding guards , the general manager , the assistant
manager, head housekeepers , head hostesses, and all other supervi-
sors as defined in the National Labor Relations Act.
s On April 12 the Regional Director issued a supplemental decision in
Case 1-RC-17813 finding that the issues raised by the challenged ballots
and certain of the Union's objections should be consolidated for hearing
with the issues raised in Case 1 -CA-20085 , in which he had authorized
the issuance of a complaint . The Respondent's request for review of this
Supplemental Decision was denied by direction of the Board in a tele-
gram dated May 11.
* On May 6 the complaint was amended with respect to the jurisdic-
tional allegations.
5 In his brief the General Counsel renews a motion made at the hear-
ing to strike certain testimony . I denied the motion ; for the reasons stated
at the hearing I reaffirm that ruling.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Maine corporation engaged in the
operation of a restaurant and motel in Brunswick , Maine.
During the calendar year 1982 the Respondent derived
in the course and conduct of its business operations gross
revenue in excess of $500,000 and purchased and re-
ceived at its Brunswick facility products, goods, and ma-
terials valued in excess of $5000 directly from points out-
side the State of Maine . The Respondent admits and I
find that the Respondent is an employer engaged in com-
merce within the meaning of the Act and I find that it
will effectuate the policies of the Act to assert jurisdic-
tion.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a motel and restaurant in
Brunswick, Maine, known as the Golden Fan Inn
(Golden Fan). The Respondent 's president, Robert
Rosenthal , apparently owns or controls most of the stock
in the corporation , and also has numerous other business
interests in the area; specifically, Rosenthal owns at least
three shopping centers, one of which is across the street
from the Golden Fan, as well as apartments and some
other real estate, and also owns a travel agency, a real
estate company, and a firm which manages those proper-
ties in which Rosenthal has an interest . In addition,
Rosenthal is president of Pittsfield Industries (Pittsfield),
a construction company that is owned by his family and
that has performed work at the Golden Fan . Rosenthal
credibly testified that Pittsfield is a shell corporation that
does not maintain its own payroll , and that as of March
1983 it employed approximately 40 people who were
paid through the Respondent, apparently on the Golden
Fan payroll.
The Golden Fan, although owned by the Respondent
since it was built, was originally a Holiday Inn. In De-
cember 1982 the Respondent left the Holiday Inn system
and became an independent motel. Also in that month
Rosenthal hired Eric Baade , who is alleged in the com-
plaint and admitted in the answer to be the Respondent's
general manager. Rosenthal testified that his son,
Andrew Rosenthal , who is the Respondent 's vice presi-
dent, was at material times responsible for supervising all
maintenance employees. Also during this period, Patricia
Mayo was the Respondent's innkeeper and, as such, was
in overall charge of the motel 's front desk, housekeeping,
and all office functions and recordkeeping, including per-
sonnel and payroll. The kitchen staff was supervised by
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoi Tung Moa, generally called Angel Moa, and Rosen-
thal himself supervised the dining room operations.
B. The Alleged Threats and Interrogations
1. The alleged interrogation by Eric Baade
Wilda Bennett, who had been employed by the Re-
spondent for about 6 years prior to the instant hearing
and had worked at the restaurant as a hostess for some
period before the election, testified that prior to the elec-
tion the employees received campaign literature from
both the Respondent and the Union in the mail and that
a few days before the election she was talking with em-
ployee Carlene Griffin and another hostess about a union
flyer that had come in the mail that days when Eric
Baade asked, "Carlene, did you receive anything in the
mail?" According to W. Bennett, Griffin first replied in
the negative and then in the affirmative, and Baade said,
"Weren't you going to tell me about it?" to which she
answered first "yes," and then "no." Baade then asked
Griffin, "Are you one of the girls?" and she said "yes."
At that point Baade was called to the front desk.
Still according to W. Bennett, while Baade was gone
she told Griffin to give him the union flyer that he was
apparently talking about, and so when Baade returned
Griffin told him that she had gotten "a paper" in the
mail and he could have it, but he replied, "No, I have a
copy."v
It is undisputed that Baade and Griffin were friends
and that Baade did not specifically ask Griffin if she had
received something from the Union or from the Re-
spondent.
The General Counsel contends that Baade's question
to Griffin was an interrogation by a supervisor of an em-
ployee regarding the latter's union activity and thus vio-
lated Section 8(a)(1) of the Act. The Respondent, how-
ever, contends that the exchange was innocuous and that
consequently no unfair labor practice can be found based
on this conversation."
In Rossmore House, 269 NLRB 1176 (1984), the Board
held that "the basic test for evaluating whether interro-
gations violate the Act [is] whether under all of the cir-
cumstances the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the Act."
6 W Bennett testified that the third hostess, whose first name was
Becky but who is not otherwise identified in the record, had told her that
she had given to someone in management a flyer that she had received
from the Union
I credit W Bennett Neither Baade nor the other hostesses involved
in the incident testified, so her account was uncontradicted, and she im-
pressed me as an honest witness who exhibited good recall I therefore
find that the incident occurred as she described it
e The Respondent also contends that the only reasonable interpretation
of Baade's initial question is that he was asking Griffin whether she had
received the Respondent's most recent mailing I find no merit to this
contention, for it is clear that the employees had just received a flyer
from the Union, and, although the Respondent also mailed literature to
the employees, there is no evidence that they received literature from the
Respondent on that day Furthermore, if the Respondent's profferred as-
sessment of the conversation were correct, there would be no basis for
Baade's asking Griffin, "Weren't you going to tell me about its"
9 Supra, 269 NLRB 1177
In that case the respondent had questioned an employee
who had sent it a mailgram announcing that he and an-
other employee intended to form a union organizing
committee. The Board concluded that in light of the
"setting and nature" of the interrogation, and the fact
that it was addressed to an open and active union sup-
porter, the questions were not coercive.
In the instant case, by contrast, there is no evidence
that Griffin was a union supporter or that prior to this
conversation the Respondent was aware of her sympa-
thies one way or the other. Indeed, Baade's asking Grif-
fin, "Weren't you going to tell me about it?" in conjunc-
tion with his later comment that he already had the doc-
ument in question, warrants the inference, which I make,
that Baade asked the question in order to test Griffin as
to whether she would respond truthfully to an inquiry to
which he already knew the answer. I thus find that the
question was asked to test Griffin's loyalty to the Re-
spondent, and was therefore clearly coercive.10 I further
note that Baade did not offer any explanation for his
question or assure Griffin or the other employees that no
action would be taken against her on the basis of her
answer. I therefore find that Baade's question of Griffin
as to whether she had received anything in the mail vio-
lated Section 8(a)(1) of the Act. i i
2. The alleged threats
a. The March 3 meeting
The day before the election the Respondent held two
meetings of unit employees. The first meeting was held
for day-shift employees at 11:30 a.m. and the second
meeting was held at 6 p.m. It is undisputed that a meal
was served at both meetings and that the employees
were told that their attendance was voluntary and that
10 The Respondent urges that the appropriate test to be applied in de-
termining whether the question was unlawful is that enunciated in Bourne
v NLRB, 332 F 2d 47 (2d Cir. 1964) In that case, the court held that in
determining whether an interrogation of employees about union activities
should be found to constitute an unfair labor practice it is necessary to
consider (1) whether there is an employer history of hostility and dis-
cnmmation, (2) the nature of the information sought, (3) the status of the
questioner within the company hierarchy; (4) the place and method of
the interrogation, and (5) whether the employee truthfully replied In
Rossmore House, supra, the Board found it appropriate to consider factors
similar to those listed by the court I find, however, that consideration of
these aspects of the incident would not change the result here, for (1) the
campaign literature sent by the Respondent to its employees clearly es-
tablishes that the Respondent was vigorously opposed to the Umon's or-
ganizing efforts, (2) as discussed above, I have found that the inference is
warranted that Baade was questioning Griffin in order to test her loyalty,
an impermissible object, (3) Baade was the Respondent's general manager
and concededly a supervisor within the meaning of the Act, (4) the con-
versation occurred at the employees' work station , and (5) it appears
from W Bennett's credible testimony that Griffin's initial response to the
question was at best confused and that she was hesitant about responding
truthfully Thus, the only factor listed by the court which does not indi-
cate that the question was coercive is the fact that the conversation oc-
curred at the employees' work station, in light of the other circumstances
I find that that fact alone does not neutralize the other factors
11 Even though Griffin and Baade were friends, the mere fact that an
interrogation occurs in a friendly atmosphere does not legitimize it where
it has no legitimate purpose and is not accompanied by any assurance
against reprisal Erie Technological Products, 218 NLRB 878 (1975) See
also Photo Drive Up, 267 NLRB 329 (1983)
GOLDEN FAN INN
they must be punched out while they were at the meet-
ing.
It is also essentially undisputed 12 that R. Rosenthal
opened the meeting , talked about how successful the op-
eration was, and said that he had been able to raise the
money to add new rooms to the motel because lenders
were confident that he could run the motel properly.
Rosenthal also said that he thought he was better pre-
pared to determine how the restaurant and motel should
be run than the Union , which as far as he knew did not
represent any motels or restaurants in Maine and did not
even have a local in the State.
At that point Rosenthal introduced his attorney, Her-
bert Bennett , saying that he had asked Bennett to come
to the meeting to answer any questions the employees
had. Bennett reminded the employees that he was there
because he was being paid to talk to them , that his job
was to represent Rosenthal , and that he would fight as
hard as he could to see that Rosenthal was fairly repre-
sented in any negotiations with the Union . Bennett also
discussed the mechanics of the election, assuring the em-
ployees that no one would know how they voted, and
then invited questions from the audience.
An employee asked whether all the employees would
have to join the Union if it won the election , and Ben-
nett answered that there would be no "free rides," and
that if the majority of the employees voted for the Union
everyone would have to pay for it. Bennett mentioned
that the Union had struck a Catholic Diocese in Massa-
chusetts for 7 weeks over whether the collective-bargain-
ing agreement would include a checkoff clause and said
that the Respondent "would not take a strike" over that
issue . An employee also asked Bennett something about
the length of a contract, and Bennett said that he
thought it was in the best interest of the Respondent to
negotiate a 3-year agreement , noting that it would cost
more to pay for negotiations each year.
It is undisputed that at some point Bennett also said
that everything depended on the negotiations and that
there was no way of telling ahead of time whether the
employees would receive more money, the same , or even
less, and that there was no clause in the contract that
was not negotiable . It is also essentially undisputed that
Bennett said that he would negotiate what was best for
his client and that Rosenthal did not have to do anything
he did not want to do , and that Bennett also voiced his
opinion that he did not think strikes were good for either
management or employees and that no one wins in a
strike . There is some dispute, however, as to what else
Bennett said in the course of the meeting.
12 As more fully discussed below, there was testimony about the meet-
ing from R. Rosenthal while testifying as the Respondent 's witness, and
from General Counsel witnesses Wilda Bennett , Patricia Mayo, who at
the time of the election was innkeeper at the Golden Fan and a supervi-
sor within the meaning of the Act, and Elaine Faherty -Weldon, the Re-
spondent's payroll clerk . Rosenthal testified on direct examination con-
cerning what was said at the meeting ; most of the testimony of the Gen-
eral Counsel 's witnesses that corroborated Rosenthal was elicited from
them by leading questions on cross-examination . To the extent that I find
that it is not disputed that certain statements were made at the meeting, I
do so on the basis of Rosenthal 's testimony as corroborated by the other
witnesses.
235
Wilda Bennett , Mayo , 13 and Faherty-Weldon114 all tes-
tified , on direct examination , to the effect that H. Ben-
nett said that he would negotiate what was best for
Rosenthal , that if the employees selected the Union and
then the parties could not negotiate the higher wages or
vacation pay that the Union wanted all the Union could
do would be to call a strike, and that if the employees
went on strike Rosenthal had the right to hire other em-
ployees to replace them in order to keep the business
going , and would not be required to take back the strik-
ers.15 According to Faherty -Weldon, Bennett also said,
11 Mayo appeared to be generally a straightforward witness who testi-
fied to the best of her recollection , and for the most part I credit her.
The Respondent contends that Mayo should not be credited because in
April she was discharged by Rosenthal and is thus hostile to the Re-
spondent . In support of this assertion the Respondent argues that Mayo's
actions in giving an affidavit to a Board agent while she was still em-
ployed by the Respondent and asking that no representative of the Re-
spondent be present while she was interviewed and that the Respondent
not be given a copy of her affidavit shows her hostility . The General
Counsel 's Casehandling Manual specifically provides, however, in (Part
One) Unfair Labor Practice Proceedings , Sec. 10056.5, that a Board
agent is not precluded "from receiving information from a supervisor or
agent of the charged party or former supervisor or agent of the charged
party where the individual comes forward voluntarily , and where it is
specifically indicated that the individual does not wish to have the
charged party 's counsel or representative present." Further, although
Mayo may have been angry with Rosenthal for firing her, there is no
showing that she was so anxious to retaliate that she was willing to give
false testimony in this proceeding in the hopes of harming him. Indeed,
Mayo was interviewed by and gave an affidavit to a Board agent while
she was still employed and there is no evidence that she harbored any
hostility toward Rosenthal at that time . Although counsel for the Re-
spondent reviewed the affidavit at the hearing there is no indication in
this record that it was inconsistent with her testimony.
14 On cross-examination, Faherty-Weldon, in response to leading ques-
tions, answered "yes," to a number of questions from H . Bennett about
whether she recalled certain statements he had made in the course of that
meeting . Faherty-Weldon , however , who was still employed part time by
the Respondent at the time of the hearing , seemed to be very uncomfort-
able during cross-examination . I recognize, of course , that counsel was
entitled to ask leading questions on cross ; however, as I repeatedly re-
minded the parties during the hearing, in considering testimony I take
into account the nature of the questions as well as the answers . Although
I generally credit Faherty-Weldon 's testimony on direct, and some of her
testimony on cross , many of the questions asked during cross-examination
were so leading, and her answers so brief, that I was left with the impres-
sion that she gave affirmative responses more to bring about a quick end
to the interrogation than because she had thought about the questions and
agreed with counsel that the statements had been made . Accordingly, in
finding what happened at that meeting I do not rely on most of Faherty-
Weldon 's testimony under cross-examination.
1s Wilda Bennett further testified that H. Bennett also said that he did
not have to negotiate . However, when Wilda Bennett was asked by H.
Bennett on cross-examination , "Didn't I tell the employees , as a matter of
fact, 'Just so you understand it, every clause in a labor agreement is sub-
ject to negotiations and both sides have something to say as to the out-
come of every clause?"' she replied, "I believe you did say something
like that." Wilda Bennett's testimony in this regard was corroborated by
Mayo on cross-examination I do not credit Wilda Bennett 's testimony
that H. Bennett categorically stated that the Respondent did not have to
negotiate , for I am convinced that she confused his statement that he did
not have to negotiate anything that was not in his client 's interest (to
which she had testified a moment earlier) with a comment that he did not
have to negotiate, and that H. Bennett did not in fact make the latter
statement. Mayo also testified that H. Bennett said that if raises or holi-
days were not in Rosenthal's best interest they were not negotiable.
Mayo seemed confused however, when she gave this testimony and I do
not credit her on this point.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apparently at another point during his remarks , that if
the Union were voted in there was "a possibility of a
strike."
On the basis of the credited portions of the testimony
of each witness, I find that Bennett told the employees
that he would negotiate in Rosenthal's best interest, that
Rosenthal did not have to make any concessions that he
did not want to grant, and that if negotiations were un-
successful the Union's only recourse would be to strike.
There was also a question as to whether the employees
could be fired if they went out on strike. Rosenthal testi-
fied that Bennett replied that they could not be fired but
that the Respondent had a right to stay in business and
to hire personnel who were willing to work during the
strike and there was no guarantee that when the strike
was over Rosenthal would have to fire anyone who had
worked during the strike or that there would be jobs
available for the former strikers. Although Rosenthal tes-
tified very assertively that Bennett told the employees
that they could not be fired for striking, I do not credit
his testimony on this point. As already indicated, I have
credited portions of Rosenthal's testimony in this pro-
ceeding . Nonethless, although he was a very articulate
and forceful witness, in some of his testimony , including
his statements on this matter, he did not impress me as
totally candid.
Wilda Bennett testified that H. Bennett said that the
employees could be replaced if they struck and that she
did not recall H. Bennett saying that they could not be
fired for going on strike, although he "probably" did. It
was clear from Wilda Bennett 's testimony that she was
not aware of the distinction between being fired and
being replaced ; in consequence, I do not rely on her tes-
timony that H. Bennett "probably" said that the employ-
ees could not be fired for striking. Faherty-Weldon testi-
fied that H. Bennett said that the only thing the Union
had to work with in negotiations was a strike and that if
the employees struck Rosenthal could hire people to take
their places and would not have to reinstate them after
the strike. 18
Based on the foregoing, I find that Bennett did not
draw a distinction between being fired and being perma-
nently replaced, and that he told the employees that they
could be permanently replaced if they went on strike.
In the course of the meeting Bennett mentioned that
the Round House, a restaurant whose employees were
represented by a union, was not doing very well, and
said that he did not know if that had anything to do with
the union or not, and that two other restaurants where
employees had selected a union to represent them were
no longer in business, reiterating that he did not know
whether that had anything to do with the union or not.
Wilda Bennett testified, however, after H. Bennett
named the restaurants that had been organized and then
went out of business he further, in effect, said that the
situation at the Round House spoke for itself. Similarly,
Mayo testified, when Bennett said that he did not know
18 Faherty-Weldon testified on cross-examination that in response to
the question about whether employees could be fired for striking Bennett
said that they could not be fired but they would take the chance of being
replaced For the reasons discussed above, however, with respect to Fa-
herty-Weldon's cross-examination, I do not credit this testimony
whether the other restaurants had gone out of business
because the employees had been unionized, he added
words to the effect "but what did that tell us?"
I credit Wilda Bennett and Mayo on this point,' and
I therefore find that H. Bennett did say something to the
effect that the situation at the other restaurants that had
been unionized spoke for itself.
b. Analysis and conclusions
The complaint alleges that in the course of the March
3 meeting the Respondent unlawfully indicated to its em-
ployees that selection of the Union was futile inasmuch
as it would not bargain in good faith, that a strike was
inevitable, and that the employees would be permanently
replaced when they went on strike, and that the Re-
spondent also unlawfully threatened the employees that
it would close the Golden Fan if they selected the Union
to represent them.
As discussed above, I find that Bennett told the em-
ployees that everything was negotiable and that Rosen-
thal did not have to make any concessions that were not
in his best interest, and that if negotiations failed the
Union's only recourse was to strike. I have also found
that the credible evidence does not establish that Bennett
categorically told the employees that the Respondent
would not negotiate.18 Of course, even though an em-
ployer might not specifically state that it will not bargain
if a union is certified to represent its employees, the em-
ployer might nonetheless make statements that reason-
ably leave the employees with the impression that it will
refuse to bargain. I am not convinced, however, that this
was the case with H. Bennett's comments about negotia-
14 As discussed above, I found W Bennett to be a completely credible
witness except when I received the impression that she was confused
Mayo also seemed candid and forthright on this point I realize that
Wilda Bennett attributed H Bennett's comment to the situation at the
Round House, while Mayo placed it in connection with the restaurants
which had gone out of business; nonetheless , it is clear that H. Bennett
said something to the effect that the poor financial condition of the res-
taurants that had unionized spoke for itself
is The parties stipulated that although the Respondent made a tape re-
cording of the meeting it was no longer in the Respondent 's possession as
of the date of the hearing and the Respondent had no knowledge of its
whereabouts The General Counsel contends that under the circum-
stances an adverse inference should be drawn from the Respondent's fail-
ure to produce the tape recording when subpoenaed to do so I disagree
As is generally recognized, whether to draw an adverse inference is a
matter of discretion for the factfinder . Auto Workers v. NLRB, 459 F 2d
1329, 1338-1339 (D.C Cir 1972) In the instant case, Peter Kraft, one of
the attorneys representing the Respondent in this proceeding, represented
at the hearing that the tape recording was of very poor quality and that
he returned it to Andrew Rosenthal and Eric Baade in late March or
early April There is no evidence about what happened to the tape re-
cording thereafter , and neither Eric Baade not Andrew Rosenthal was
called as a witness by any party, although apparently both individuals
were available to testify Under these circumstances , as it has not been
shown that the recording was destroyed or production refused in order
to prevent the General Counsel from having access to relevant subpoe-
naed evidence, I conclude that an adverse inference is not warranted.
The General Counsel similarly contends that an adverse inference
should be drawn from the Respondent 's failure to produce a list signed
by the employees who intended to attend the meeting Rosenthal credibly
testified , however, that the only use made of the list was to determine
how many employees intended to attend the preelection meeting and
buffet and that because it had served that purpose he no longer had the
list in his possession I therefore find that it is not appropriate to draw an
adverse inference from the failure to supply it
GOLDEN FAN INN
tions . It is clear that H . Bennett told the employees that
everything depended on the negotiations and that he
would negotiate what was best for Rosenthal . Although
indicating that the Respondent would engage in what is
frequently called "hard bargaining," these statements did
not suggest that the Respondent would refuse to bargain
or that a strike would be inevitable.19
With respect to the allegation that the Respondent told
the employees that they would be permanently replaced
if they struck, the Board has held that an employer has
the right to notify employees that if they become eco-
nomic strikers they may be permanently replaced, and
that there is no requirement that the employer explain
the rights of economic strikers to be placed on a prefer-
ential hiring list after they make an unconditional offer to
return to work after having been replaced . Thus, in
Eagle Comtronics, 263 NLRB 515 , 516 (1982), the Board
stated:
[W]e conclude that an employer may address the
subject of striker replacement without fully detail-
ing the protections enumerated in [Laidlaw Corp.,
171 NLRB 1366 (1968), enfd . 414 F .2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970)], so long as
it does not threaten that, as a result of a strike, em-
ployees will be deprived of their rights in a manner
inconsistent with those detailed in Laidlaw . To hold
otherwise would place an unwarranted burden on
an employer to explicate all the possible conse-
quences of being an economic striker . This we shall
not do . As long as an employer 's statements on job
status after a strike are consistent with the law, they
cannot be characterized as restraining or coercing
employees in the exercise of their rights under the
Act. [Footnote omitted.]
However, in that case the employer representative who
discussed the rights of strikers specifically referred to the
rights of economic strikers , while in the instant case
there is no evidence that H. Bennett limited his statement
that strikers could be "permanently replaced," to those
strikers involved in an economic as opposed to an unfair
labor practice strike . 2 ° Nonetheless , the Board held in
Care Inn, Collierville , 202 NLRB 1065 , 1077 (1973), that,
where the context in which comments about permanent
replacements are made indicates that what was contem-
plated was an economic strike , the failure to tell the em-
ployees about the special status of unfair labor practice
strikers does not render the statements unlawful . y t In the
19 Cf. Devon Gables Nursing Home , 237 NLRB 775 , 776 (1978), affd.
615 F 2d 509 (9th Cir . 1980), in which the Board found that the logical
inference to be drawn from the statements of employer representatives
was that "no matter how negotiations progressed and no matter what the
Union sought from Respondent the employees would nevertheless have
to strike to obtain a contract."
80 Unfair labor practice strikers are entitled to be reinstated following
their unconditional offer to return to work, even if they have been re-
placed
81 The Board also relied in that case on the fact that the respondent
operated a nursing home and had a "moral obligation to keep the facility
adequately staffed ." 202 NLRB at 1065 . Although the Respondent here
presumably does not have the same obligation to its customers as a nurs-
ing home has to its patients , I conclude that that distinction alone is not
sufficient to warrant a different result here See Ohio New & Rebuilt
237
instant case , the discussion of strikes apparently arose in
the context of Bennett's comments about negotiations. I
realize, of course, that the mere fact that a strike results
from a failure of the parties to reach a collective -bargain-
ing agreement does not necessarily mean that it is an
economic , as opposed to an unfair labor practice, strike.
Having found that Bennett did not unlawfully threaten
that the Respondent would refuse to negotiate, however,
I further find that his comments about permanent re-
placements were made with reference to an economic
strike . 22 I therefore find that these statements were not
inconsistent with the law and were thus protected under
the rule enunciated in Eagle Comtronics, supra.
I have found that Bennett told the employees that of
the three other unionized restaurants in Maine one was
not doing well and the other two had closed , and that
the situation spoke for itself. I also find that the comment
suggested to the employees that selection of a union to
represent them would have an adverse impact on the
Golden Fan 's business.
It is well established that "interference , restraint, and
coercion under Section 8 (a)(1) of the Act does not turn
on the employer's motive . . . . The test is whether the
employer engaged in conduct which , it may reasonably
be said , tends to interfere with the free exercise of em-
ployee rights under the Act."23 Accordingly , I conclude
that by this remark the Respondent violated Section
8(a)(1) of the Act.24
Parts, 267 NLRB 420, 428 (1983) In that case, the employer's owner read
the following question and answer to employees at a meeting-
Question 8• If the union calls a stoke , can we lose our jobs?
Answer : YES Under the law , if the union makes you strike to try
to force the company to agree to the union's economic demands, this
company 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 company 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 administrative law judge found that while the statement failed to
fully advise employees of rights of economic strikers , it was not unlawful
because it was merely incomplete rather than false.
2R Devon Gables Nursing Home, supra at 785 . Cf. Cagle's Inc., 234
NLRB 1148 (1978), in which the Board reversed an administrative law
judge's finding that the respondent did not act unlawfully in sending let-
ters to strikers telling them that if they did not report to work the next
day they would be permanently replaced . The administrative law judge
had found that the strike was economic in nature; the Board disagreed
and found that the stoke was an unfair labor practice strike and that, in
consequence , the respondent was not entitled to tell the stokers they
could be permanently replaced Accord - Cal-Pacific Furniture Mfg. Co,
228 NLRB 1337, 1344 ( 1977), enf denied 580 F .2d 942 (9th Cir. 1978),
Champagne Color, 234 NLRB 82, 88 (1978).
as American Freightways Co., 124 NLRB 146, 147 ( 1959). The Board
recently adopted an administrative law ,fudge 's similar statement of the
test in Photo Drive Up, supra. See also Hedison Mfg. Co., 260 NLRB 1037,
1038 (1982).
24 I recognize that R . Rosenthal testified , in response to a question
from his counsel as to whether Bennett had said that if the Union got in
the Golden Fan would shut down , that his recollection was that Bennett
said that they would "run no matter what." Rosenthal did not appear
completely truthful at this point , however , and this testimony was given
in the context of other questions on the subject of what action the Re-
spondent would take in the event of a strike , and, in any event, although
there is testimony from other witnesses that Bennett said that in the event
of a strike the Respondent had the right to continue its business and that
the employees might be replaced , there is no testimony to corroborate
Rosenthal that Bennett said that they would continue to operate "no
matter what." Accordingly , I do not credit Rosenthal on this point.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The postelection comments of Andrew Rosenthal
Employee Scarlett Brooker, who acted as the Re-
spondent's observer at the election, credibly testified that
following the election she, R. Rosenthal, Andrew Rosen-
thal, and Peter Kraft went into the cocktail lounge
where they all had a drink. In the course of the conver-
sation Brooker asked what would have happened if the
vote had gone the other way and Andrew Rosenthal said
that if the parties could not agree on a contract there
would be a strike and the Respondent would then have
the right to hire new people because it was going into its
busy season.
The complaint does not specifically allege that any
postelection conduct by the Respondent was unlawful.
At the hearing, however, the General Counsel alleged
that these events were relevant to the complaint' s allega-
tion that the Respondent indicated that selection of the
Union was futile, that it would not bargain in good faith,
that a strike was inevitable, and that striking employees
would be permanently replaced. That paragraph specifi-
cally alleges that the statements at issue were made "on
or about March 3." The events to which Brooker testi-
fied occurred March 4, and I find that there is not such a
disparity in the dates as to justify a refusal to consider
this evidence.
Turning to the merits on this issue, although Andrew
Rosenthal's comments were apparently phrased as a pre-
diction rather than as a mere statement of opinion, I find
that they did not reasonably tend to indicate that a strike
was inevitable . I further find that Andrew Rosenthal's
mention of hiring new people was not such a misrepre-
sentation of the rights of strikers as to be unlawful under
the test enunciated above. Accordingly, having found
that the record does not establish that the comments
made with respect to negotiations, strikes, or striker re-
placements on either March 3 or 4 were unlawful, I shall
recommend that this allegation of the complaint be dis-
missed.
C. The Alleged Inclusion of Ineligible Voters on the
Excelsior List
1. General principles
Employers who are parties to Board representation
proceedings in which elections are held are required to
submit to the appropriate Regional Director a list of all
the employees in the bargaining unit who are eligible to
vote in that election. This list, commonly called the Ex-
celsior list, after the case in which the Board established
that requirement,25 is then made available by the Re-
gional Director to all parties in the case.
The complaint alleges that the Respondent included
the names of 24 individuals who were not eligible to
vote on the list that it sent to the Regional Director, and
that the Respondent took this action so that these indi-
viduals would be able to vote against the Union in the
March 4 election. The Respondent, however, while con-
ceding that the list as originally submitted contained
three errors (according to the Respondent, two names
25 Excelsior Underwear, 156 NLRB 1236, 1239 (1966)
were erroneously omitted from the list and one name
was erroneously included), contends that it complied in
good faith with the Excelsior requirement.
It is well established that an employer violates Section
8(a)(1) of the Act by hiring individuals to increase the
size of a bargaining unit and thereby thwart the efforts of
employees to secure representation. 2 6 In determining
whether an employer has committed this type of unfair
labor practice, certain other general principles must be
kept in mind. First, it is clear that not every inclusion in
the Excelsior list of the name of an individual who is not
eligible to vote constitutes a violation of Section 8(a)(1)
of the Act: it is obvious that the central question to be
answered in these cases is why the disputed individuals
were listed. Second, and equally obvious, in answering
that question the factfmder must sometimes rely on cir-
cumstantial evidence.27 Third, the number of individuals
hired to accomplish this purpose would seem to be im-
material: in ABC Liquors, 263 NLRB 1271 (1982), a vio-
lation was found where 1 of the 93 voters was found to
have been hired to vote against the union. Fourth, the
Board has indicated that one factor to be considered is
whether the new hires have some connection with mem-
bers of management: in Airborne Freight Corp., 263
NLRB 1376 (1982), the conclusion that the respondent
had unlawfully hired new employees was based, inter
alia, on the finding that "The nexus between these new
hires and persons who presumably were unsympathetic
to the Union arouses strong suspicions that Respondent
continued to seek out employees with antiunion
biases."28
2. Background
a. The Respondent's payroll system
Faherty-Weldon, who was responsible for the Re-
spondent's payroll at all material times, credibly testified
that she calculates the number of hours worked by the
employees from their timecards and then lists the hours
by hand on payroll worksheets, which are computer
printouts provided by a computer service and preprinted
with the employees' names and hourly rates. Faherty-
Weldon then sends the worksheets to the computer serv-
ice, which prepares a payroll register, showing the gross
earnings for each employee, the deductions from that
amount, and the amount of the employee's actual pay-
check, which is sent to the Respondent each week. Fa-
herty-Weldon further credibly testified that the only per-
sons who had the authority to tell her to add names to
or delete them from the payroll were Robert or Andrew
28 Trend Construction Corp., 263 NLRB 295, 300 (1982)
27 Thus, for example, in Trend Construction Corp, supra, the adminis-
trative law judge, affirmed by the Board, based his conclusion that the
respondent had hired the individuals at issue so that they would be eligi-
ble to vote on his findings that the new hires were made shortly after the
employer became aware of the filing of the petition, the new employees
were brought from out of town at the employer's expense, although local
employees were available , they were assigned to nonurgent work, they
were not capable of performing the work, and there was union animus.
Further, when the election was postponed due to blocking charges the
newly hired individuals were laid off
28 263 NLRB at 1381 See also Max, Mart, 246 NLRB 1151, 1158-
1160 (1979)
GOLDEN FAN INN
Rosenthal, Eric Baade, Patricia Mayo, Angel, Assistant
Housekeeper Norma Blaisdell , Harvey St. Laurent, Peter
Gray, or Brenda Lepari. It is uncontroverted that the
Rosenthals, Baade, Mayo, and Angel were at material
times supervisors within the meaning of the Act, but
there is a dispute as to whether Blaisdell and St. Laurent
were supervisors. The record does not disclose what po-
sitions were held by Gray or Lepari.
The record establishes that certain of the Respondent's
procedures with respect to the payroll and personnel
records were somewhat unusual . Thus, for example, it is
uncontroverted that Rosenthal routinely listed individ-
uals who worked for other enterprises in which he had
an interest on the Respondent's payroll, even if these in-
dividuals never performed any work at the motel. Ac-
cording to Rosenthal, some of his other businesses did
not have a payroll procedure, so it was more convenient
for him to use the Respondent's existing payroll system
for these individuals than to establish a system for the
other businesses. It is also undisputed that Faherty-
Weldon was not infrequently given the names and perti-
nent information about newly hired employees on pieces
of scratch paper, such as receipts from drycleaners, and
she credibly testified that about 30 percent of the em-
ployees on the Respondent's payroll had not filled out
the employee's withholding allowance certificates, more
commonly known as W-4 forms, provided by the Inter-
nal Revenue Service.
b. The events of January
Rosenthal testified that the motel had been built by a
construction company owned by Holiday Inn and that
because the original construction was poor in some re-
spects there were significant maintenance problems later.
Specifically, he testified that the bathrooms were not
properly ventilated and in consequence the bathroom
tiles and grout frequently required replacement because
of mildew. Rosenthal further testified that the Respond-
ent had not had an opportunity to perform much of the
needed maintenance work because during 1982 the motel
had been occupied by about 180 to 200 Navy personnel
while their ship was being overhauled at the Bath Iron
Works, and that when Baade had agreed to go to work
for the Respondent he had insisted that the rooms be put
in better condition. Consequently, according to Rosen-
thal, the Respondent hired a number of new maintenance
employees in January to perform this work. These new
hires are among the individuals who are alleged to have
been improperly included on the Excelsior list.
As noted above, the petition in Case 1-RC-17813 was
filed on January 12. A hearing in that case was held Jan-
uary 27. Faherty-Weldon credibly testified that during
the third week of January Eric Baade told her that he
and the two Rosenthals were going to Boston with Ben-
nett to a meeting about who would and would not be eli-
gible to vote in the election,29 that the Respondent
would be redoing some rooms on the first floor of the
motel, and that Harvey St. Laurent would bring in a
number of people to work on Saturdays "to fix up the
rooms and beef up the payroll." Neither Baade nor
29 1 find that this "meeting" was the representation hearing.
239
Harvey St . Laurent testified , and Rosenthal , the Re-
spondent 's only witness , did not refer to this remark in
his testimony . I find that Baade 's comment , made in the
context of a conversation about ascertaining who would
be eligible to vote , indicated the Respondent 's intention
to put individuals on the payroll and consequently on the
eligibility list so that by voting in the election they could
dilute the Union 's support . Thus, although it appears
from Rosenthal 's testimony , which was corroborated by
Faherty-Weldon as to this point , that the Respondent
had not been able to do certain maintenance work in the
motel for some period of time prior to January , this evi-
dence that the Respondent had a legitimate reason for
hiring a number of people that month must be weighed
against other evidence tending to show that some names
were included on the voter eligibility list for an unlawful
purpose.S°
c. The preparation of the Excelsior list
There is an issue in this case about who physically pre-
pared the Excelsior list. Rosenthal testified that after he
was told that a list would have to be submitted he asked
Mayo to compile it.91 Mayo testified that the list of em-
ployee names and addresses came from the computer
center and that she thought that Faherty-Weldon made
up the list, although Mayo might have helped her, but
that in any event all they did was make copies of the
"payroll sheets."92 Faherty-Weldon credibly testified,
however, that she had nothing to do with the Excelsior
list. I credit Mayo about what she thought and Faherty-
Weldon as to what she actually did or did not do, and,
thus, find that this record does not establish who at the
motel prepared the list.33
3. The disputed individuals34
a. The alleged supervisors
Norma Blaisdell: Blaisdell was assistant housekeeper
and as of the time of the hearing had worked for the Re-
so It is undisputed that in late February the Respondent began work
on construction that would add 48 new rooms to the motel According to
Rosenthal , this work was performed by Pittsfield and supervised by A.
Rosenthal . The Respondent contends that if it had had any intention of
padding the Excelsior list it would have hired the construction workers
earlier and added them to the payroll, and that its failure to take this
action demonstrates its good faith. I find no merit to this contention . first,
the work was to be performed by Pittsfield , and so the construction
crews would not have been the Respondent 's employees in any event;
second , they would have been temporary employees ; and, third , the fact
that a respondent forgoes one opportunity to engage in unlawful conduct
does not demonstrate that it has abstained from all similar activity.
31 Rosenthal also testified that he was asked to compile the list after
the representation hearing. Without passing on the credibility of Rosen-
thal's testimony about when he was asked to prepare the list , I find, in
light of the fact that there had been an organizing campaign by another
union about 2 years earlier, that in any event he knew from the time the
petition was filed that such a list would be required if an election were
directed
32 It is not clear what these "payroll sheets" were , for neither the pay-
roll register nor the payroll worksheets list the employees ' addresses.
ss Bennett stated on the record that it was his understanding that the
list was sent to his office where a secretary put it in alphabetical order. It
is not clear, however, in what form the list was received at Bennett's
office.
94 None of the people who were allegedly improperly included on the
Excelsior list testified
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent for some 12 or 13 years. 35 It is undisputed that
she was the most senior employee at the Golden Fan and
that her work was considered by management to be
"outstanding ." Mayo testified that Blaisdell interviewed
applicants for jobs as maids and had the final say con-
cerning who was hired, and that she was responsible for
scheduling the maids, checking the motel rooms to be
sure that the maids were cleaning properly, and keeping
Mayo advised of what supplies were needed. According
to Mayo, Blaisdell spent 90 percent of her time supervis-
ing the maids, checking the rooms they cleaned, and
training them, and, although Blaisdell cleaned rooms
when one of the maids scheduled to work was absent,
there were days when Blaisdell did not do any rooms at
all.
Mayo further testified that Blaisdell prepared discipli-
nary warnings on maids and that Mayo had discharged
maids on Blaisdell 's recommendation, and there is in evi-
dence warning slips directed to one of the maids that
Mayo credibly testified were signed by Blaisdell. Mayo
also testified that she did not know whether Blaisdell had
discussed the situation with Rosenthal prior to issuing
these warnings; however, Mayo further testified that
Blaisdell had told her that the maid in question did
sloppy work and should be terminated. Mayo followed
this recommendation.
Contrary to Mayo, Rosenthal testified that Blaisdell
had no authority to hire, fire, lay off, or discipline em-
ployees and that she did not want such authority, al-
though she could notify either himself or the front desk
that she did not need a given maid any longer for sched-
uling , and that if a question such as a medical leave of
absence arose she would bring it to his attention. Rosen-
thal further testified that when Blaisdell found that the
maids were not performing their work properly she
either told him about the problem or prepared written
warnings and then told him. I do not credit Rosenthal,
however, for on this point, as was the case with much of
his testimony, he did not appear candid. Mayo, as dis-
cussed above, generally impressed me as a forthright wit-
ness . I therefore find, in accordance with Mayo's testi-
mony, that Blaisdell possessed and exercised the author-
ity to effectively recommend hiring and discharge.36
It is undisputed that Blaisdell had been offered and de-
clined the position of head housekeeper, saying that she
did not want the authority or responsibility over other
people. Nonetheless, I have found that Blaisdell had and
exercised the power to recommend hiring, discharge, or
discipline; the fact that she did not want to be responsi-
ble for implementing a discharge is not inconsistent with
that power. I thus find that Blaisdell was a supervisor
35 The Respondent employed about 15 to 20 maids, including those
who worked part time
36 In addition, Faherty-Weldon credibly testified that during the 2-
week period prior to the hearing she had heard Blaisdell tell Eric Baade
that two of the housekeeping employees should be terminated and they
were, and that she did not believe that there had been any change in
Blaisdell's responsibilities after Mayo was fired. As noted above, Baade
did not testify, so as far as this record shows the discharges were effectu-
ated based on Blaisdell's recommendation Faherty-Weldon further testi-
fied that she had been present when Blaisdell told Mayo that a maid was
not working out and should be terminated.
within the meaning of the Act and that she was therefore
not eligible to vote in the election.
This finding does not, of course, resolve the unfair
labor practice issue, for if Blaisdell's name was included
pursuant to the Respondent's good-faith belief that she
was not a statutory supervisor, there can be no finding
that the Respondent thereby violated the Act. I do not
believe, however, that in this case the Respondent could
have had a good-faith belief that Blaisdell was an eligible
voter. As mentioned above, Faherty-Weldon listed Blais-
dell as one of those with authority to tell her to add
names to the payroll, and her authority to effectively
recommend hiring and discharge, as well as her position
of being responsible for the cleanliness of nearly 150
motel rooms, establishes that she was more than a low-
level supervisor whose status could reasonably be the
subject of dispute. I therefore find that her name was in-
cluded on the Excelsior list in order to increase the
number of voters at the election, and that by this con-
duct the Respondent violated Section 8(a)(1) of the Act.
Harvey St. Laurent: It is undisputed that H. St. Laurent
worked in maintenance and was, next to Nelson
Brown,37 the highest paid individual in that depart-
ment.38
Rosenthal testified that H. St. Laurent did not have su-
pervisory authority, but was an employee working under
the supervision of Andrew Rosenthal, who R. Rosenthal
claimed was responsible for maintenance at the motel
and for the construction of the additional rooms in
1983.39 However, Mayo testified that H. St. Laurent was
the "head" of maintenance, and "took care of" the build-
ing and the new construction. I credit Mayo, who ap-
peared to testify more candidly on this issue than Rosen-
thal. In addition, Mayo's testimony was to some extent
corroborated by Faherty-Weldon who, as mentioned
above, credibly identified H. St. Laurent as one of the in-
dividuals authorized to instruct her to make changes on
the payroll register and testified that H. St. Laurent often
gave her information about employees to be added to the
payroll on slips of paper. Also, in identifying Daniel St.
Onge, one of the maintenance personnel discussed below,
Faherty-Weldon stated that St. Onge worked for H. St.
Laurent, which further indicates that H. St. Laurent at
the very least had the power to direct employees' work,
and I have credited Faherty-Weldon's testimony that E.
Baade told her that "Harvey" would be bringing in "a
number of people to work on Saturdays to fix up the
rooms and beef up the payroll," which indicates, con-
39 Brown's status is discussed below
38 As of the week ending January 8, H St Laurent received a wage
increase that brought his hourly rate up to $6.39 The next most highly
paid maintenance worker was a Don Hill who earned $6 an hour, but,
although his name appears on the payroll, no hours worked are listed for
him on any of the payroll records in evidence The hourly rate of the
other maintenance employees as of that date ranged from $3.50 to $5 25
39 For reasons which are not stated in the record, however, Andrew
Rosenthal is not listed in either the "Maintenance" or the "Executive"
classification, but is listed in the classification "Bartender " I find that this
classification of A Rosenthal, which is totally at odds with all the other
evidence of what he did at the motel, casts considerable doubt both on
the credibility of R Rosenthal and the reliability of the Respondent's
payroll records
GOLDEN FAN INN
trary to Rosenthal's assertions, H. St. Laurent had the
power to hire employees.
Other evidence supports the conclusion that H. St.
Laurent possessed supervisory authority. Thus, R.
Rosenthal , while contending that A. Rosenthal was in
charge of all the maintenance and construction work,
credibly testified that A. Rosenthal did not spend a ma-
jority of his working time at the motel . The Excelsior list
includes the names of 11 maintenance employees, not in-
cluding Nelson Brown or H. St. Laurent ; if H. St. Laur-
ent were not a supervisor, these employees would be un-
supervised most of the time.
In light of the foregoing findings and the credible testi-
mony of Mayo that H. St. Laurent was "in charge of"
maintenance , I find that he was a supervisor within the
meaning of the Act and therefore not eligible to vote in
the election . I further find that the Respondent did not
have a good-faith belief that he was eligible, particularly
as it was H. St. Laurent who was to be responsible for
hiring people to "beef up" the payroll and pack the
maintenance department . I therefore further find that by
including his name on the Excelsior list the Respondent
violated Section 8(a)(1) of the Act.40
b. The maintenance personnel
Mark Baillargeon : Baillargeon 's name appears as a
maintenance employee on the payroll worksheet for the
week ending January 8 but, although his name and
hourly rate are printed on the worksheet , no hours are
penciled in for him . His name does not appear on the
payroll register for January 15,41 and his name is not
printed on the payroll worksheet for January 22, but is
handwritten at the end of the listing of maintenance em-
ployees, showing him as working 9 hours at a rate of
$3.50 per hour.
Faherty-Weldon credibly testified that she added Bail-
largeon's name on instructions of Harvey St. Laurent,
and that Baillargeon had worked for the Respondent at
some point in 1982 and then stopped working for a time.
Rosenthal testified that Baillargeon was a maintenance
employee , however, who was in school , that he had
worked "all summer" in 1982 doing essentially unskilled
or semiskilled maintenance work such as lawn mowing,
and that when school started again he came in "almost
all the weekends" to shampoo the carpets or do similar
work . Rosenthal further testified that as of the hearing
Baillargeon still worked for Respondent on weekends
and sometimes during school vacations.
The payroll records in evidence show that in 1982
Baillargeon earned $274 .75 working for the Respondent,
40 Faherty-Weldon credibly testified that Mayo had told her that St.
Laurent worked for Pittsfield and was paid through the Respondent's
payroll , and that any time other than what he spent at the Golden Fan
was rebelled to whichever entity owned the property where he had
worked . Mayo did not testify about this matter , however, there is no con-
tention that St. Laurent was ineligible to vote because he was actually
employed by someone other than the Respondent, and, in any event, it is
not clear how much of his time was spent at locations other than the
motel.
41 There is no payroll worksheet in evidence for that week . Counsel
for the General Counsel represented at the hearing that in going through
the Respondent's records he could not find any payroll worksheet for
January 15.
241
and that during the last quarter of that year Baillargeon
earned $87 . 50.42 Thus, assuming that Baillargeon earned
the same hourly rate in 1982 as he did the following
year, he worked only about 25 hours in the last 3 months
of 1982, and less than 80 hours the entire year . 43 These
figures make it clear, in flat contradiction of Rosenthal's
testimony, Baillargeon did not work for the Respondent
full time during the summer of 1982 and that in the last
quarter of the year he averaged only the equivalent of
about 1 full day of work per month . I find that this in-
consistency between Rosenthal 's testimony, which was
apparently intended to leave the impression that Baillar-
geon was a regular part-time employee in 1982 who re-
mained in that status throughout the eligibility period,
and the Respondent's own payroll records, gives rise to
the inference that his sudden reappearance on the active
payroll the week ending January 22 was due, not to his
being rehired as a bona fide employee , but to the Re-
spondent's implementation of its stated intention to "beef
up" the payroll . I therefore find that he was not eligible
to vote in the election and that the Respondent 's conduct
in including him on the Excelsior list violated Section
8(a)(1) of the Act.
One other point should be considered with respect to
Baillargeon 's eligibility to vote : there is no evidence
about which days he worked in 1982 or whether he
worked preset days and times or was called in on an as-
needed basis. In consequence , and in light of the very
few hours that he worked at all that year, I find that in
1982 Baillargeon was at most a casual employee, and not
a regular part-time employee within the meaning of the
unit description in the Regional Director 's Decision and
Direction of Election. The record indicates that Baillar-
geon worked at least 6 hours in each of the weeks be-
tween the payroll eligibility date and the election.44 The
record does not establish , however, that when Baillar-
geon was put on the payroll for the week ending Janu-
ary 22 it was with the understanding that his status was
to be different from what it had been up to that point.
The question of eligibility to vote is not determined by
hindsight;45 thus, even though it appears that Baillar-
geon worked a good many more hours between the pay-
roll eligibility date and the election than he had during
the entire preceding calendar quarter , there is no evi-
dence that this increase in hours was due to prearrange-
ment . It is therefore his status as a casual, intermittent
employee that must be presumed to have continued, and
I thus find that even if his hiring in January were lawful
he was not eligible to vote in the election.
Donald Hill: Hill was on the Respondent 's payroll as a
maintenance employee in 1982, earning a total of $410.40
42 There is no contention that the payroll records in evidence do not
accurately reflect what the employees were paid.
49 I realize that the record does not show what Baillargeon's hourly
rate was in 1982. However , the minimum wage in 1982 was $3.35 an
hour; thus, at most he worked only about 82 hours all year.
44 A compilation of hours worked prepared by the Respondent and in
evidence as part of a General Counsel exhibit (compilation), is the only
indication of how many hours were worked for the Respondent by vari-
ous individuals after the week ending January 29 . As discussed below, it
is not reliable.
45 High Energy Corp., 259 NLRB 747, 761 (1981)
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the course of the year and $16 . 20 in the last 3 months.
He was also listed on the payroll worksheets in January,
at an hourly rate of $6, but no hours or earnings were
listed for him. His name does not appear on the compila-
tion . Inasmuch as there is no evidence that Hill either
worked during the eligibility period or that either he or
anyone in management had any reasonable expectation
that he would work for the Respondent during that
period or at any future time , I find that he was ineligible
to vote in the election . I further find that under the cir-
cumstances, especially in view of how little he must have
worked in the last 3 months of 1982 , the inference is
warranted that the Respondent did not act in good faith
in including his name on the Excelsior list. I therefore
conclude that inclusion of his name violated Section
8(a)(1) of the Act.
Nelson Brown : It is undisputed that Brown is a painter
and wallpaper hanger who had performed work at the
Golden Fan on occasion for a number of years . Prior to
1983 , Brown prepared a bill for each job he performed
for the Respondent, stating what he had done , how long
the job had taken, and his hourly rate . Mayo would then
make out a check for him, which Rosenthal would sign.
Brown was put on the Respondent 's payroll for the first
time for the week ending January 15.
Rosenthal testified that until 1982 Brown had general-
ly spent winters in Florida but that in December of that
year Brown told him that he had decided not to go
south and wanted to know if Rosenthal could employ
him every week if he stayed in Maine . Rosenthal further
testified that he replied in the affirmative but checked
with an attorney as to whether he could continue to use
Brown as an independent contractor and thus avoid the
necessity of paying him fringe benefits or covering him
under workmen 's compensation insurance . According to
Rosenthal , his attorney advised him that "if [Brown] was
going to be with me for any period of time that I had
better put him on the payroll and make him a regular
member of the maintenance crew ," and Rosenthal fol-
lowed this advice . Neither the attorney who allegedly
advised Rosenthal nor Brown testified.
Faherty-Weldon credibly testified , however, that on
Monday , January 17, she prepared a list of names, in-
cluding Brown 's, to be added to the payroll , which she
then sent to the data processing service , and that she be-
lieved that Rosenthal told her to add Brown 's name. Fa-
herty-Weldon also testified that Brown turned in state-
ments showing where he worked and what he did for
the days Tuesday , January It , through Friday , January
14. These statements, which are in evidence , establish
that Brown worked, apparently at other properties
owned by Rosenthal, in Lewiston , Maine, on Tuesday,
January 11 , and in Waterville , Maine , from January 12
through 14 . Thus, although Brown was on the Respond-
ent's payroll for that week , he performed no work at the
Golden Fan . 46 I realize that Rosenthal routinely put em-
ployees who worked at his other properties on the Re-
spondent 's payroll . It does not appear , however, that any
other procedure had ever been used to pay those individ-
46 Brown was only paid for 32 hours that week, so apparently he did
not work for any Rosenthal enterprise on Monday , January 10
uals. In Brown 's case , in contrast , Rosenthal had been
using him as an independent contractor for a number of
years.
It is highly suspicious that Rosenthal , while stating
that he put Brown on the payroll on the advice of coun-
sel and contrary to his own preference , did not say what
explanation the attorney offered for that advice, and
gave no other reason for changing Brown 's status. There
is no question but that Rosenthal is a highly sophisticated
and successful businessman , who is well acquainted with
the various kinds of business relationships , and he did not
impress me as an individual who would follow advice he
found unpalatable merely because it was given by an at-
torney . To the contrary , Rosenthal struck me as the kind
of client who knew how to effectively use professional
advice and would want to understand the reasons behind
it. Yet, if Rosenthal 's testimony on this point were to be
believed , he not only put Brown on the Respondent's
payroll , but changed his status beginning in a week in
which Brown did not even perform any work for the
Respondent, just because an attorney told him to do
so.47 I find it simply incredible that Rosenthal was given
this advice. I find it even more incredible that if Rosen-
thal had received such advice he would have followed it.
I therefore do not credit Rosenthal as to why he put
Brown on the payroll.
It is undisputed that the petition in the representation
proceeding was filed January 12 . As discussed, Brown
was added to the payroll on January 17, and the infer-
ence is warranted , which I draw , that by that date
Rosenthal was aware that the petition had been filed. Be-
cause I have discredited Rosenthal 's testimony concern-
ing why Brown 's status was changed from that of inde-
pendent contractor to regular employee , and as the Re-
spondent has advanced no other reason for this action,
the only reasonable explanation remaining is that offered
by the General Counsel , i.e., that the Respondent wanted
to include Brown in the bargaining unit so that he would
be eligible to vote in the election . Accordingly, and in
light of all the circumstances , I find that Brown was put
on the payroll as part of the Respondent 's plan to pack
the unit . I therefore conclude that Brown was not eligi-
ble to vote in the election and that the inclusion of his
name on the Excelsior list violated Section 8 (a)(1) of the
Act.48
41 I am cognizant of Bennett 's statement on the record that "my client
will testify that he got advice from an attorney that it was illegal because
the guy wasn't an independent contractor , and under the wage and hour
he had to be on his payroll " There was no explanation of this statement,
however, much less any evidence that Brown could not properly contin-
ue his status as an independent contractor , and, in any event, while
Rosenthal testified that the attorney told him to put Brown on the pay-
roll he did not say what reason the attorney gave for this alleged advice
48 I find no merit to the Respondent 's contention that the record dem-
onstrates that Brown worked for the Respondent full time after he was
added to the payroll First, inasmuch as I have found that he was not
hired as a bona fide employee, what he did during the eligibility period is
immaterial. Second, the record does not establish how much he worked
for the Respondent in January, February , and March Thus, for example,
although the compilation mentioned above lists Brown as working full
time during the period between January 17 and March 12, it also lists him
as working 32 hours the week ending January 15 even though he did not
work at the motel that week I thus find that the compilation is not pro-
Continued
GOLDEN FAN INN
Daniel St. Laurent : Daniel St . Laurent is the youngest
son of Harvey St . Laurent , and Rosenthal testified that
Daniel St . Laurent worked for the Golden Fan the
summer of 1982, performing work similar to that done
by Mark Baillargeon . This testimony is corroborated to
some extent by the 1982 payroll records, which show
that Daniel St. Laurent earned $1995 in regular and
$65.63 in overtime pay in 1982 , and that he earned
$365.75 in the last quarter of the year.
The 1983 payroll records in evidence show Daniel St.
Laurent's wage rate as $3.50 per hour and list him as
having worked 10 hours the week ending January 8, 9.5
hours the week ending January 15 , and 9 hours each of
the weeks ending January 22 and 29.49
It thus appears that Daniel St . Laurent worked fairly
regularly from at least the last quarter of 1982 through
the eligibility period, and, although I recognize that the
payroll records do not, under the circumstances , estab-
lish that he did work regularly at the motel , there is also
no evidence that he did not.50 Accordingly , I find that
he was eligible to vote in the election.
Denis and Robert St. Laurent: Denis and Robert St.
Laurent are also sons of Harvey St . Laurent and are
listed on the payroll as general maintenance employees.
Both names first appear on the payroll worksheet for the
week ending January 22 and Faherty-Weldon credibly
testified that on January 24 Harvey St. Laurent gave her
two drycleaner's receipts with the pertinent information
about Denis and Robert St . Laurent written on the backs
and told her to put them on the payroll . s 1 The payroll
records show that both Robert and Denis St. Laurent re-
ceived $5 per hour, and that Denis worked 8 hours the
week ending January 22 , and did not work the week
ending January 29, and that Robert worked 9 hours in
bative evidence as to where Brown worked during the eligibility period.
Further , on direct examination Mayo credibly testified that although she
did not see Brown at the Golden Fan every day she saw him every
week, but she was not asked what time period was covered by her obser-
vation . On cross-examination , after the parties stipulated that Brown's
name appeared on the payroll register for the week ending January 15,
Mayo testified that Brown worked about 40 hours per week , but she did
not testify as to whether her knowledge came from the payroll records
(which I have already found do not show that Brown worked at the
Golden Fan) or from seeing Brown at the motel, nor was she ever asked
whether she had seen Brown at the motel during this period. According-
ly, I find that the record does not show that Brown spent enough of his
time at the motel after he was placed on the payroll to justify a conclu-
sion that on and after the eligibility date he was an employee of the Re-
spondent working primarily at the motel.
4B Faherty-Weldon credibly testified , however , that she did not know
Daniel St. Laurent, that there was no timecard for him , and that she did
not know at which properties he worked . Faherty-Weldon also credibly
testified that those employees who worked only at the motel punched a
tuneclock, while those who worked at both the motel and at Rosenthal's
other properties did not. Rosenthal testified that the maintenance employ-
ees did not punch a timeclock , but reported their time to Mayo or
Andrew Rosenthal . I credit Faherty -Weldon, because she impressed me
as a candid and forthright witness who exhibited good recollection,
except for that testimony on cross -examination discussed above.
so Faherty-Weldon's testimony that she never saw him , while credited,
is not probative on this issue, because she did not work weekends and
there is no evidence about what days of the week Daniel St. Laurent
worked.
51 Although Denis St. Laurent 's first name is spelled with two "n's" in
the complaint and on the payroll records , the piece of paper stating the
pertinent payroll information with respect to him spells the first name
with one "n." I assume that that document was prepared by either Denis
St. Laurent or his father , and therefore adopt its spelling.
243
each of those 2 weeks . The compilation of hours worked
lists Denis as having worked 17 hours the week ending
February 5, 8 hours the week ending February 12, 8.5
hours the week ending February 19, 6 hours the week
ending February 26, and 8 hours the week ending March
12. He did not work the week ending March 5. The
compilation lists Robert as having worked 9 hours the
week ending February 5, 8 hours the week ending Feb-
ruary 12, 9.5 hours the week ending February 19, 6
hours the week ending February 26, and 40 hours in the
weeks ending March 5 and 12.
Rosenthal testified that Denis St. Laurent quit working
for the Golden Fan sometime in the spring of 1983, be-
cause he had a full-time job elsewhere, was working at
the motel part time on weekends , and decided he could
not handle both jobs. Rosenthal also testified that Robert
St. Laurent did general maintenance work and that as of
the date of the hearing he was working full time at the
Golden Fan. Faherty-Weldon testified, however, that
Robert St . Laurent also worked at other properties and
that she added his name to the payroll on instructions of
Harvey St . Laurent, who gave her the pertinent informa-
tion on the back of a drycleaner' s receipt . As discussed
above, Rosenthal 's testimony about the amount of time
certain other maintenance employees spent working at
the motel is specifically contradicted by documentary
evidence, and I therefore find that his testimony in gen-
eral on this subject is not credible. Accordingly, al-
though it may well be that Robert St . Laurent was
working full time at various properties owned or con-
trolled by Rosenthal , I find there is no probative evi-
dence that he worked full time at the Golden Fan.
In light of Eric Baade's comment to Faherty-Weldon
about "beefing up the payroll," which I have already
found indicated the Respondent 's intent to pack the unit,
the timing of the hiring of Denis and Robert St . Laurent,
their relationship to the individual I have found was re-
sponsible for implementing the plan to pack the mainte-
nance department, and the apparently casual manner in
which they were hired , as well as the fact that they ap-
parently never appeared in the office to complete and
sign a W-4 form, I conclude that the inference is war-
ranted , which I make, that they were hired not as bona
fide employees , but, as Faherty-Weldon testified, to
"beef up" the payroll. I therefore find that they were not
eligible to vote in the election and that the Respondent's
action in including their names on the Excelsior list vio-
lated Section 8(a)(1) of the Act.
Daniel Caron : Caron's name first appears on the pay-
roll worksheet for the week ending January 22. He was
listed as a maintenance employee , and Faherty-Weldon
credibly testified that she added his name on instructions
from Harvey St. Laurent on January 24 and that H. St.
Laurent gave her a drycleaner's receipt with the perti-
nent information about Caron written on the back. The
payroll records list Caron's hourly rate as $5, and show
that he worked 9 hours in each of the weeks ending Jan-
uary 22 and 29, and the compilation of hours worked
prepared by the Respondent lists Caron as working 9
hours in each of the weeks ending February 5 and 12,
and 40 hours in each of the weeks ending February 19,
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 26, March 5, and March 12. Faherty-Weldon
further credibly testified that Caron worked at both the
Golden Fan and other properties and did not punch a
timeclock.
Rosenthal testified that Caron was hired as a general
maintenance worker and that he thought he was still em-
ployed at the Golden Fan as of the date of the hearing
doing the same work ; there is no other evidence about
how much of Caron's working time was spent at the
motel, or how he came to be hired. There is also another
bit of evidence that should be considered at this point:
Rosenthal testified that the maintenance personnel "that I
had been able to hire [apparently prior to 1983] had not
been particularly good and they had taken care of the
very minor things but I had not been able to get any
general maintenance out of them ." There is no evidence,
however, that Rosenthal or any other management offi-
cial made any inquiry into the qualifications of any of the
maintenance personnel who were added to the payroll in
January and who had not previously performed any
work for the Respondent or at any of Rosenthal's other
properties . I recognize that Harvey St. Laurent was
probably aware of the qualifications of his own sons, but
there is no indication of what qualifications Caron pos-
sessed . In these circumstances, and for the same reasons
stated above with respect to the hiring of Robert St.
Laurent , I conclude that Caron was not hired as a bona
fide employee, that he was therefore not eligible to vote
in the election , and that inclusion of his name on the Ex-
celsior list violated Section 8(a)(1) of the Act.
Franklin Durette : Durette 's name is first listed on the
payroll worksheet for the week ending January 22, at an
hourly rate of $5. He worked 8 hours that week and 9
hours the week ending January 29, but his name does not
appear on the compilation of hours worked during the
eligibility period. Faherty-Weldon credibly testified that
she added Durette 's name to the payroll worksheet on
the instructions of Harvey St. Laurent and that H. St.
Laurent gave her a drycleaner 's receipt with the perti-
nent information about Durette written on the back.
Rosenthal testified that Durette was a general mainte-
nance employee but there is no evidence as to whether
he was still working for Rosenthal at the time of the
hearing or, if not , when he left, and there is also no pro-
bative evidence as to how much of his working time was
spent at the motel . Having found that the Respondent in-
cluded a number of ineligible individuals on the Excelsior
list in an attempt to dilute the Union's support among the
bargaining unit employees, I conclude , for the reasons
stated above with respect to Caron, that the hiring of
Durette was in furtherance of that same plan. I therefore
fmd that by including his name on the voter eligibility
list the Respondent violated Section 8(a)(1) of the Act.
David Fernald: Fernald 's name is first listed on the
payroll worksheet for the week ending January 22 and
he is shown as a maintenance employee earning $5 per
hour and as having worked 9 hours that week. He also
worked 9 hours the week ending January 29 and the
compilation lists him as working 9 hours the week
ending February 5, 8 hours the week ending February
12, 9.5 hours the week ending February 19, 40 hours the
week ending February 26, and 8 hours the week ending
March 5.
Faherty-Weldon credibly testified that Harvey St.
Laurent gave her the pertinent payroll information about
Fernald on the back of a drycleaner 's receipt on January
24 and told her to add him to the payroll.
Rosenthal testified that Fernald worked full time for
the Central Maine Power Company and works for
Rosenthal on almost every Saturday, and that he was
hired after Andrew Rosenthal saw him reading a meter
and asked him if he wanted to do Saturday work. Rosen-
thal also testified that as of the date of the instant hear-
ing Fernald was still on the Respondent's payroll. There
is no other evidence about how Fernald came to be
hired , his qualifications to do maintenance work, or how
much time he spends working at the motel . Accordingly,
and for the reasons stated above with respect to Caron
and Durette , I conclude that his inclusion on the eligibil-
ity list violated Section 8(a)(1) of the Act.
Delbert Harding: Harding 's name first appears on the
payroll worksheet for the week ending January 29; the
worksheet indicates that he was paid $5 per hour and
worked 9 hours that week . The compilation lists him as
working 9 hours the week ending February 5 and on
medical leave thereafter . Faherty-Weldon credibly testi-
fied that she added Harding 's name to the payroll on
Harvey St. Laurent's instructions ; the pertinent informa-
tion about him for the payroll records was written on a
torn off piece of paper bag . Rosenthal testified that Har-
ding started working for the Respondent in January and
shortly thereafter broke a bone while skiing and never
returned to work, and Faherty-Weldon testified that
Harding was not still working at the motel as of the time
of the election . For the reasons stated above, I conclude
that Harding 's hiring was also in furtherance of the Re-
spondent's "beef up the payroll" policy , and that , there-
fore, inclusion of his name on the eligibility list violated
Section 8(a)(1) of the Act.
Daniel St. Onge: St. Onge was listed on the payroll in
1982 as a maintenance employee and earned $7881.15
that year in regular pay and $1200.62 in overtime; he
earned $1953.30 of his regular pay in the last 3 months of
the year. The payroll worksheet for January 8 lists him
as working 23 hours at an hourly rate of $5.10, and he
worked 24.5 hours the week ending January 15, 37.5
hours the week ending January 22, and 31 hours the
week ending January 29; he is not listed on the compila-
tion. Rosenthal testified that St. Onge used to work for
the Respondent full time but that he at some point began
working for a fire department and thereafter worked for
the Respondent during his off-duty hours . Rosenthal also
testified that St. Onge worked on other properties and
had done work for Pittsfield, although he was not em-
ployed by them, but that he was not doing any work of
any significance for Pittsfield in January . There is no
other evidence of how much of St. Onge's working time
was spent at the motel.52
52 Rosenthal testified that in January he "had practically my entire
crew spending most of their time trying to fix up the inn." I do not credit
this testimony, for Rosenthal did not appear candid on this point.
GOLDEN FAN INN
Inasmuch as St . Onge had been on the Respondent's
payroll for some time, and as there is no evidence that
he did not regularly work at the motel , I conclude that
the record does not establish that he was not eligible to
vote in the election and properly included on the Excelsi-
or list.
Ronald Weed: Weed was added to the payroll work-
sheet for January 22, which lists him as working 7 hours
that week at an hourly rate of $6 . No hours are listed for
him for the week ending January 29 , however, and the
compilation lists him as working 9 . 5 hours the week
ending February 5, and states that he then quit . Faherty-
Weldon testified that she added Weed's name to the pay-
roll on January 24 or 25 on the instructions of Andrew
Rosenthal and that at the time his name was added he
was plowing the parking lots. R . Rosenthal testified that
Weed was hired to do plowing but had an independent
business of his own and it did not work out for him to be
an employee, and that he later worked as an independent
contractor . It is undisputed that Weed was not working
for the Respondent at the time of the election.
In light of the extremely short period of time that
Weed worked for the Respondent, the fact that the work
he was hired to do was likely to need doing for the dura-
tion of the eligibility period but not for very long there-
after, and the timing of his hiring , I conclude that Weed
was hired as part of the payroll packing plan , and that
inclusion of his name on the Excelsior list violated Sec-
tion 8(a)(1) of the Act.
c. Cooks
Man Fu Ho : Ho appears under the classification "Chi-
nese cooks" on the payroll register for the week ending
January 15 , but no hours are listed for him , although he
received $330 in regular and $220 in overtime pay. He
apparently did not work in 1983 prior to that week, for
the amounts listed for him for the week and the year to
date are the same . A document prepared by Faherty-
Weldon to indicate changes in the payroll for the com-
puter center lists him at a preset salary of $7.50 per hour
for 40 regular and 20 overtime hours per week. Ho is
listed on the payroll worksheet as working 40 regular
hours and 20 overtime hours for the weeks ending Janu-
ary 22 and January 29 , but his name is not included in
the compilation.
The 1982 payroll records show Ho as earning a total
of $11,382 in regular and $7777.56 in overtime pay that
year, but he apparently did not work at all at the motel
in the last quarter of the year.
There is no direct evidence as to why Ho was rehired
in January . Mayo testified that she had been told that Ho
and his wife, who was a waitress at the motel , went to
Hong Kong in either late 1982 or January 1983 and that
she was later told that they were in California but, in
any event, she had not seen either of them since that
time . Mayo further testified that no one indicated to her
that the Hos were on a leave of absence and that she did
not know whether they were employed at the motel as
of the time of the election. W. Bennett said that she had
seen Ho preparing egg rolls in the kitchen at night, but
did not indicate at what time period she made these ob-
servations.
245
Rosenthal testified that in January Ho had gone to
Hong Kong for a wedding , which left the kitchen short
a Chinese chef. Rosenthal also testified that Ho and his
wife returned from Hong Kong before the election but
that Ho's name was struck from the eligibility list the
day of the election because head chef Angel Moa had
fired him . Rosenthal further testified that Ho and his
wife went to California after Ho was discharged. The
payroll worksheet for the week ending January 22 shows
that Ho's wife, Valentina Wong, was added to the pay-
roll as of that week, but no hours were listed for her.
Her name also appears on the payroll worksheet for the
week ending January 29 , but she apparently did not
work that week . Wong is listed, however, as having
worked in 1982.
The issue in cases when employees are granted leaves
of absence is whether they have a reasonable expectation
of returning to work.5 a In the instant case, Ho had not
worked for the Respondent since at least September
1982, and there is no evidence about what arrangements
he made with management officials when he left in Janu-
ary or as to how long he intended to be gone . I find the
sudden addition of Ho's name to the payroll in January
suspect, particularly in light of my findings that the Re-
spondent unlawfully included a number of other individ-
uals to the voter eligibility list and as there is no evi-
dence about how long he worked for the Respondent
during the eligibility period. I therefore that find the in-
ference is warranted that Ho was not a bona fide em-
ployee when he was added to the payroll in January, and
that inclusion of his name on the Excelsior list violated
Section 8(a)(1) of the Act.
Tin Kai Yu: Yu is listed on the payroll under the clas-
sification "Chinese cooks," and earned a total of
$2784. 80 in regular and $1322 in overtime pay in 1982;
all of his earnings were in the last quarter of the year.
The payroll worksheets in evidence , as well as the pay-
roll register for the week ending January 15, are pre-
printed to show Yu as working 40 hours per week at
$7.50 per hour and 20 hours overtime.54
The compilation lists Yu as working 40 hours per
week until the week of February 19, when it indicates he
was fired . Yu cast a challenged ballot in the election and
the Respondent conceded in its position statement on the
challenged ballots that he was ineligible to vote. There is
no other evidence about him in the record. Accordingly,
while it is undisputed that he was not eligible to vote in
the election , I find that the General Counsel has not
shown by a preponderance of the probative evidence
as Sid Eland, Inc., 261 NLRB 11 (1982). In that case , the employee at
issue requested a leave of absence in July 1981 to go from Seattle, where
he was employed , to take care of some family business in California. He
returned to Seattle and worked for 3 days in the payroll period ending
August 28 and then requested and was granted another leave of absence
and returned to California . He next appeared at the employer's premises
the day of the election, September 9, and voted , but did not appear on
the payroll again . The Board found that the leave of absence was too
open-ended to warrant a conclusion that the employee had a reasonable
expectation of returning to work for the employer.
54 The payroll register for the week ending January 15 lists Yu as re-
ceiving $330 in regular and $220 in overtime each week , but an hourly
rate of $7.50 would result in a salary of $300 for a 40-hour week. This
discrepancy is not explained in the record.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was initially improperly included on the Excelsior
list.
Kau Chun Moa and Magala Moa: Kau Chun Moa and
Magala Moa are the wife and sister, respectively, of Hoi
Tung Moa (referred to by various witnesses as "Angel"),
who is head chef at the Golden Fan. The names of both
women first appear on the payroll worksheet for the
week ending January 22 and were added by Faherty-
Weldon , under the classification "Cooks," at a wage rate
of $5 per hour and with a notation that each worked 6
hours that week . Both names appear on the payroll
worksheet for the week ending January 29, but no hours
are listed for either Magala or Kau Chun . Although per-
sonnel files existed for both women, the only notations of
any relevance to this proceeding were the statements on
the jacket of each file "rehire 1/22/83" and "term
3/7/83," and the notation on the file of Magala Moa,
"Hired 9/14/82" and "Term 10/20/82."55 The compila-
tion lists Kau Chun Moa and Magala Moa as working 16
hours the week ending February 5, and 8 hours the
weeks ending February 12, February 19, February 26,
March 5 , and March 12 . However , the compilation also
lists Kau Chun Moa as working 2 hours the week ending
January 15, the week before she was added to the pay-
roll worksheet, although her name does not appear on
the payroll register for that week . I thus find that this in-
consistency is a further indication that the compilation is
not a reliable indication of how many hours various em-
ployees worked during the eligibility period.
Rosenthal testified that Kau Chun Moa and Magala
Moa had worked "sporadically" for the Golden Fan for
several years, and that at the time they were rehired in
January Man Fu Ho "had left and had gone back to
Hong Kong for a wedding ," thus leaving Angel short
one Chinese cook at the same time that the Respondent
was changing from using frozen prepared foods in the
restaurant to preparing its own food. Rosenthal further
testified that in consequence Kau Chun Moa and Magala
Moa were brought in to work part time preparing food
about 2 days per week and worked whatever days Angel
chose . However, Ho was on the payroll and was paid,
according to the payroll records, for at least 2 weeks
after Magala and Kau Chun Moa started . 58 Because Ho
did not work for the Respondent for at least 3-1/2
months prior to January 15, the inference is warranted
that he was not on paid vacation time while in Hong
Kong and, thus, the weeks he was on the payroll he was
not in Hong Kong . I thus find that at least until January
29 Ho had not left for Hong Kong, and that he was still
working for the Respondent when Kau Chun Moa and
Magala Moa were put on the payroll, and I therefore do
not credit Rosenthal's testimony that Ho had left at that
time and that Kau Chun Moa and Magala Moa were
hired in consequence of his departure.
66 The 1982 payroll summary does not list Kau Chun Moa, however,
and it thus appears that she did not work for the Respondent dung that
year . The payroll summary does list Magala Moa, indicating that she
earned $228 .81 in regular pay that year She was listed as a waitress
56 Since Ho is not listed on the compilation , and no other documents
regarding hours worked by any employees during the eligibility period
are in evidence, there is no evidence about when Ho worked for the Re-
spondent after January 29.
In contrast to Rosenthal 's testimony , Wilda Bennett
credibly testified that she had not seen Kau Chun Moa
working at the Golden Fan for "a couple of years," and
had last seen Magala Moa working there "probably a
year ago." Faherty-Weldon testified that on January 24
or 25 Andrew Rosenthal told her that the two women
were working in the kitchen on Saturdays making egg
rolls and to add the two women's names to the pay-
roll.57 However, W. Bennett further credibly testified
that she had never seen Magala Moa performing any but
waitressing work, and that she had never seen either
woman making egg rolls in January, although she had
seen the Chinese chefs make them. W. Bennett also cre-
dibly testified that she worked 6 nights per week as well
as during the day on Saturdays in January and February.
Mayo credibly testified that between January and April
she never saw either woman working at the Golden Fan,
although she worked 5 days per week and sometimes on
weekends. From the credible testimony of Mayo and W.
Bennett the inference is warranted, which I make, that if
Kau Chun Moa and Magala Moa had been working at
least one of these witnesses would have been aware of it.
I therefore fmd that they did not actually work at the
Golden Fan during January and February and do not
credit Rosenthal's contrary testimony.
Having already found that Rosenthal did not testify
credibly about the circumstances surrounding the hiring
of Kau Chun Moa and Magala Moa, and that they did
not actually work at the motel during the eligibility
period, and also taking into consideration their relation-
ship with a member of management and the fact that
both women left the Respondent's employ on March 7,
only a few days after the election in which they cast
challenged ballots, I conclude that they were hired to
further implement the Respondent's plan to pack the bar-
gaining unit. I therefore also conclude that they were not
eligible to vote, and that the inclusion of their names on
the Excelsior list violated Section 8(a)(1) of the Act.
d. Other categories
Paul Baade: Paul Baade is the younger brother of Gen-
eral Manager Eric Baade and is first listed on the payroll
worksheet for the week ending January 22, under the
classification "waiter/waitress" and at a wage rate of
$2.06 per hour and "special rate" of $3.35 per hour.58
The payroll worksheet for that week further indicates
that Baade worked 13.6 hours that week at the special
rate and that he had not yet provided his Social Security
number. The payroll worksheet for the week ending Jan-
uary 29 lists Paul Baade as working 9.3 hours at the spe-
cial rate, and the compilation lists him as working 9
hours the week ending February 5, 9.9 hours the week
ending February 12, 9.1 hours the week ending February
19, 26.8 hours the week ending February 26, and 1.4
hours the week ending March 5. His personnel file con-
84 Faherty-Weldon further testified that she did not work on Satur-
days, and so did not know whether Magala and Kau Chun Moa worked
then or not
as These are the same pay rates received by almost all the employees
in that classification The "special rate" is not described in the record
GOLDEN FAN INN
tains a W-4 form that lists his Social Security number,
but the form is neither signed nor dated.
Rosenthal testified that Paul Baade did general work
of a lower level than maintenance and that after he was
hired he worked a day or perhaps a day and a night per
week . According to Rosenthal, at the time P. Baade was
hired he already had another full-time job , but he later
quit that job and was working for Respondent full time
at the time of the hearing.
Rosenthal also testified that Mark Baillargeon, dis-
cussed above, was a "sub-level" maintenance worker,
"like Paul Baade ." However, there is no evidence as to
why Paul Baade and Mark Baillargeon , who Rosenthal
testified performed the same work , were hired in differ-
ent classifications and at different rates of pay . Consider-
ing the timing of Baade's hiring and his relationship to
the member of management who told Faherty -Weldon
that the Respondent intended to "beef up" the payroll, I
conclude that his hiring was part of the Respondent's un-
lawful plan to increase the number of voters in the elec-
tion . I therefore ford that he was ineligible to vote and
that the inclusion of his name on the Excelsior list violat-
ed Section 8(a)(1) of the Act.
Rein White : White was hired as a maid in September
1981 and worked at the motel until December 1982; her
personnel file bears the notation "Term-12-18-82."
Mayo credibly testified that either Blaisdell or Faherty-
Weldon told her that White had quit because she was
pregnant . However, Mayo did not personally talk to
White about whether she had quit . Faherty-Weldon cre-
dibly testified that in December Blaisdell told her that
"Rein White will be all done as of Friday , she wants to
stay home because she's pregnant ," that she consequently
took White's name off the payroll, and that she had no
reason to believe that White intended to return to work
for the Respondent in the future.
It is undisputed that White suffered a miscarriage and
that she returned to work for Respondent , again as a
maid, in February; she apparently returned to work with
the same benefits she had had when she left . Her person-
nel file bears the notation "rehired Feb . 6, 1983, Pat,"
and it appears that White did not fill out a new applica-
tion form at that time . I find , however, that her failure to
do so is of no significance , since there is no evidence that
any of the individuals whose status as employees in Janu-
ary is in dispute ever , filled out an application for em-
ployment with the Respondent.
Neither Blaisdell nor White testified ; however, Rosen-
thal testified that he considered White to be on a leave
of absence because she was pregnant , that White had
told Blaisdell that she would be taking time off, and that
he caused her name to be added to the Excelsior list after
it was originally prepared because he considered her a
continuing employee who was eligible to vote.
I credit Faherty -Weldon that Blaisdell told her that
White would be "all done ," and specifically discredit
Rosenthal 's testimony that Blaisdell told him that White
would be taking time off. Rosenthal did not impress me
as candid at this point in his testimony and I did not find
him believable . Faherty-Weldon, however, appeared to
be forthright and to exhibit good recollection, and I
therefore credit her.
247
The question of whether White was an eligible voter
depends on whether she took a medical leave of absence
in December or quit . In light of Faherty-Weldon's credi-
ble testimony as to what Blaisdell told her I find that her
understanding of White's status, as reflected by her nota-
tion on White's personnel file, was a reasonable one. Fur-
ther, having discredited Rosenthal as to what Blaisdell
told him , I further find that there is no probative evi-
dence that at the time White stopped working in Decem-
ber she intended to return to work for the Respondent at
some future time . I therefore find that she was ineligible
to vote in the election.
This fording does not dispose of the unfair labor prac-
tice issues , however, for the question remains about
whether the addition of her name to the Excelsior list
was made in bad faith. In this regard , I note that White's
name was added to the list via a letter dated February
23, after White returned to work, from Peter Kraft to
the hearing officer in the representation case . I find the
Respondent's failure to catch its alleged inadvertent
error to include White on the list earlier suspicious, par-
ticularly in light of the notation on her personnel file that
her employment was terminated and my findings above
that the Respondent acted in bad faith in including a
number of other names on the Excelsior list. I therefore
find that the inference is warranted, which I make, that
the Respondent seized on the opportunity provided by
White's return to work to add her name to the list, al-
though at the time the list was originally prepared she
was not an employee . I therefore conclude that by in-
cluding White's name on the voter eligibility list the Re-
spondent violated Section 8(a)(1) of the Act.
Paul Pendergast : Pendergast first appears on the pay-
roll for the week ending January 29 and is listed at a
wage rate of $5 per hour under the classification
"Cooks." He worked 8.3 hours that week and the compi-
lation shows him as having worked 7.9 hours the week
ending February 5, 8.2 hours the week ending February
12, 7 hours the week ending February 19, 10.9 hours the
week ending February 26, and 5 . 1 hours the week ending
March 5 . The compilation further indicates that Pender-
gast was on medical leave after that date.
Rosenthal credibly testified that Pendergast was em-
ployed to cut the meat for customers at the Respondent's
Sunday buffet. Rosenthal further testified that he noticed
that Pendergast's name was not on the original Excelsior
list and that he caused the name to be added because he
considered Pendergast a regular part -time employee who
should have the right to vote. The only other evidence
pertaining to Pendergast is Rosenthal's testimony that
Pendergast has continued to work for the Respondent
every Sunday and that he had a full-time job as a food
salesman and that the Respondent was one of his custom-
ers.
In light of the timing of Pendergast's hiring and the
fact that as a food salesman he dealt with the Respond-
ent in another capacity and one which presumably re-
quired that he maintain a good relationship with Rosen-
thal, I find that he was hired to further implement the
Respondent's plan to pack the bargaining unit. I there-
fore conclude that he was not eligible to vote in the elec-
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion and that inclusion of his name on the Excelsior list
violated Section 8(a)(1) of the Act.
Deborah Fernald Baade: Deborah Fernald Baade is the
wife of Eric Baade. Her name first appeared on the pay-
roll worksheet for the week ending January 22, where
she was listed under the name Deborah Fernald as a bar-
tender at the rate of $5 per hour. The worksheet further
bears the notation, "No SS # yet" and indicates that she
worked 10.1 hours that week. The payroll worksheet for
the week ending January 29 indicates that she did not
work any hours that week, and she is not listed in the
compilation.
Rosenthal testified, when asked about Deborah Baade,
as follows:
Well, Debbie came to work for us. We were in
need of a bartender. Her fiance [presumably Eric
Baade] threw her into bartending. It was probably
one of their early quarrels. She did not like bartend-
ing, she did not like being in the bar and she
wouldn't go back. She worked that one night and
did not go back.
Subsequently to that and subsequent to the elec-
tion she came back to work on the front desk and is
currently employed on the front desk.
It is clear from Rosenthal's testimony that Deborah
Baade quit after working one night as a bartender, and it
is clear from the payroll records that that that one night
was during the week of January 22. I therefore find that
Deborah Baade was not employed by the Respondent on
January 29, the eligibility date. I further find, in light of
that fact and her relationship to Eric Baade, that inclu-
sion of her name on the Excelsior list was part of the Re-
spondent's unlawful plan to dilute the Union's strength
among the employees. I therefore find that she was not
eligible to vote in the election and that by adding her
name to the eligibility list the Respondent violated Sec-
tion 8(a)(1) of the Act.
Arlyne Sacks: It is undisputed that Arlyne Sacks is R.
Rosenthal's sister and that prior to the election her name
was removed from the Excelsior list.59 Mayo credibly
testified that Sacks came in and helped with the book-
keeping for 1 or 2 hours a week "or something like that
once in a while," but the payroll worksheets are pre-
printed to show her as working 40 hours per week and
the payroll register in evidence shows her as paid for
that amount of time. Rosenthal testified, however, that
Sacks worked at other locations in which he had an in-
terest as well, but that he did not know how much of
her time she worked at the Golden Fan and how much
of it was spent elsewhere.
I credit Mayo, for the reasons stated above, and I
therefore find that although Sacks was paid through the
Respondent's payroll she worked at the Golden Fan in
69 Although Sacks' name was removed from the list, the complaint
was not amended to delete her name from the list of individuals who
were allegedly improperly included on the original Excelsior list. In any
event, the complaint alleges that the violation occurred on the date the
list was compiled, and it appears that the Respondent did not act to
remove her name on its own initiative, but only after the Union com-
plained about her inclusion
the capacity of, at most, a casual employee, and that she
was therefore not properly included on the election eligi-
bility list. I further find, in light of her relationship to
Rosenthal, that the inference is warranted, which I make,
that she was included on the original Excelsior list in fur-
ther implementation of the Respondent's plan to pack the
bargaining unit . I therefore find that inclusion of her
name on the eligibility list violated Section 8(a)(1) of the
Act.
Rolande St. Laurent: Rolande St. Laurent is married to
Harvey St. Laurant and first appears on the payroll reg-
ister for the week ending January 15. Faherty-Weldon
credibly testified that she added Rolande St. Laurent's
name to the payroll after being instructed to do so by
Harvey St. Laurent on January 17. Rosenthal credibly
testified that Rolande St. Laurent worked 15 to 20 hours
per week cleaning a shopping mall he owned in Lewis-
ton and had no connection with the Golden Fan, and
conceded that her name should not have been included
on the Excelsior list.60 Rosenthal further testified that
Rolande St. Laurent 's name was on the Respondent's
payroll "for convenience." However, I do not credit this
latter assertion. In light of the timing of the addition of
her name to the payroll, the Respondent's failure to
remove her name from the Excelsior list, although she
was obviously not eligible to vote, until the Union com-
plained about her inclusion, and her relationship to the
individual who was to implement the Respondent's plan
to pack the maintenance department, I conclude that the
inclusion of Rolande St. Laurent's name on the eligibility
list violated Section 8(a)(1) of the Act.
IV. THE REPRESENTATION PROCEEDING
The tally of ballots provided to the parties following
the March 4 election showed 35 votes for and 43 against
the Union, with 14 challenged ballots. Specifically, the
Union challenged the ballots of Paul Baade, Mark Bail-
largeon , Daniel Caron, Kau Chun Moa, Magala Moa,
Daniel St. Laurent, Denis St. Laurent, Robert St. Laur-
ent, Rein White, Tin Kai Yu, Paul Pendergast, Norma
Blaisdell, Harvey St. Laurent, and Nelson Brown. I have
found above that all of these individuals except Daniel
St. Laurent were not eligible to vote in the election. I
will therefore recommend that the challenges to their
ballots be sustained. As the challenged ballot of Daniel
St. Laurent is no longer determinative, I will not recom-
mend that it be opened and counted.
The Union also filed objections to the election, some
of which were subsequently withdrawn. Those consoli-
dated for hearing with Case 1-CA-20805 alleged, in sub-
stance, that the Respondent stated at meetings with em-
ployees that it would not negotiate with the Union and
would force the employees to strike; that the Excelsior
list was inaccurate ; and that the Respondent and its agent
60 Indeed , it is undisputed that the Respondent at some point prior to
the election agreed to remove Rolande St. Laurent's name from the list
As discussed above, however, with respect to Arlyne Sacks, the relevant
date with respect to the unfair labor practices alleged herein is that on
which the list was prepared, and, as also noted above, as with Sacks, Ro-
lande St Laurent 's name was apparently not stricken from the list until
after the Union complained about her inclusion
GOLDEN FAN INN
intimidated employees about the information they had re-
ceived from the Union.
Having found that Baade unlawfully interrogated em-
ployee Carlene Griffin , in the presence of other employ-
ees, about literature she had received from the Union,
and that the Respondent unlawfully included the names
of various individuals who were not eligible to vote on
the Excelsior list, I will recommend that that these objec-
tions be sustained . I shall therefore further recommend
that, as the Union did not receive a majority of the valid
ballots cast in the March 4 election , a new election be
directed . Having also found that Bennett did not unlaw-
fully threaten at the March 3 meeting that the Respond-
ent would not negotiate with the Union or that the
Union would be forced to strike , I shall recommend that
this objection be overruled.81
On the basis of the above findings of fact and the
entire record in this case, I make the following
81 There is no objection premised on Bennett's comment relating to
the situation of other unionized restaurants and there is no contention
that that remark should nonetheless be found objectionable. Having
found that the election should be set aside on the basis of other conduct,
I find it unneccessary to determine whether, under the circumstances,
this conduct also provides a basis for setting aside the election.
249
CONCLUSIONS OF LAW
1. Bo-Ed Inc. d/b/a Golden Fan Inn is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Service Employees International Union, Local 254,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By coercively interrogating an employee about her
receipt of union literature ; indicating to employees that
their selection of the Union as bargaining representative
will have an adverse impact on the Respondent's busi-
ness; and listing individuals who are ineligible to vote in
a Board-conducted election on the voter eligibility list in
order to dilute the Union 's support among bona fide bar-
gaining unit employees , the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
4. A preponderance of the credible evidence does not
establish that the Respondent has otherwise violated the
Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of
the Act.
[Recommended Order omitted from publication.]